magnify
Home Archive for category "State Immunity"

ICC Appeals Chamber Holds that Heads of State Have No Immunity Under Customary International Law Before International Tribunals

Published on May 6, 2019        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

The Appeals Chamber of the International Criminal Court (ICC) has, this morning, issued what seems to be an extremely controversial decision on Head of State Immunity. At the time of writing, the full written judgment is not yet available in the appeal by Jordan against the decision of the Pre-Trial Chamber referring that state to the UN Security Council for failing to arrest then President of Sudan, Omar Al Bashir when he attended an Arab League Summit in March 2017.  However, in the oral and written summary of the judgment, delivered this morning by the President of the Court, Judge Chile Eboe-Osuji, the Appeals Chamber appears to have held that under customary international law, heads of state have no immunity from criminal prosecution international criminal courts. The provision in Article 27(2) of the ICC Statute that “Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person” , according to the summary of the judgment:

“represents more than a stipulation in treaty law. The provision also reflects the status of customary international law, as it concerns the jurisdiction that an international criminal court is properly entitled to exercise.”

In so holding, the Appeals Chamber, once again changes the basis on which the ICC has held that the Sudanese (now former) President was not immune from the arrest in ICC states parties that he visited (for a quick overview of the Court’s previous inconsistent decisions, see this AJIL Unbound piece). Indeed the Appeals Chamber appears to explicitly endorse the much criticised decision of Pre-Trial chamber I in the Malawi Decision. The Summary states that:

“39. In this regard, the Appeals Chamber is fully satisfied that the pronouncements made by the Pre-Trial Chamber I in the Malawi Referral Decision — and those made by the Appeals Chamber of the Special Court for Sierra Leone in the case of Charles Taylor (who was indicted before that international court when he was the sitting President of Liberia) — have adequately and correctly confirmed the absence of a rule of customary international law recognising Head of State immunity before international courts in the exercise of proper jurisdiction. 
40. The effect of absence of a rule of customary law recognising Head of State immunity, in relation to international courts, is not readily avoided through the backdoor: by asserting immunity that operates in the horizontal relationship between States, in a manner that would effectively bar an international court from exercising its jurisdiction over the person whose arrest and surrender it has requested. The law does not readily condone something to be done through the backdoor, if the law has forbidden the thing to be done through the front door.”

This is stunning and appears to be deeply misguided. It is also, in my opinion, a very dangerous and unwise move for the Court to make. This reasoning appears to assert that parties to the Rome Statute, have, by creating the Court, taken away the rights of non-party states under international law. Dangerous because this reasoning is likely to stiffen opposition to the Court by non-parties. The John Bolton’s of this world and many people far more reasonable will point to this ruling to set out precisely why it is important to oppose this court and other international criminal courts. As I stated here many years ago, the Malawi decision was a terrible one.  It was very poorly reasoned and roundly criticised by others as well (see Bill Schabas and Dov Jacobs). It is extremely disappointing to see it resurrected. Not least because the issue of the immunity of heads of state before international criminal courts is not what is at issue in these cases. What was is at issue is the immunity of heads of states from arrest by other states acting at the request of an international criminal court. That the head of state may not have immunity before the international criminal court does not, without more, say anything about whether he or she may have immunity before a foreign state.

Read the rest of this entry…

Print Friendly, PDF & Email
 

Equivalence and Translation: Further thoughts on IO Immunities in Jam v. IFC

Published on March 11, 2019        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

At the end of February, the Supreme Court of the United States issued a landmark judgment on the immunity of international organizations in Jam v. International Finance Corporation, 58 U.S. (2019). The case concerned the meaning of the 1945 International Organizations Immunities Act (IOIA), which affords international organizations “the same immunity from suit … as is enjoyed by foreign governments.” 22 U.S.C. § 288a(b). Writing for a 7-1 majority, Chief Justice Roberts found that the IOIA incorporates a dynamic immunities regime, equivalent to whatever immunities US law affords to foreign states. The immunities of international organizations are keyed to sovereign immunity. The former evolve to meet the latter. Thus, as the US law of sovereign immunity has shifted from an absolute to a restrictive paradigm with the enactment of the 1952 Foreign Sovereign Immunities Act (FSIA), so too does the IOIA today incorporate merely restrictive immunity for international organizations.

Writing in dissent, Breyer laments the majority’s approach, arguing for a static interpretation of the IOIA on purposive grounds. Given his druthers, Breyer would have interpreted the statute as affording international organizations absolute immunity from suit – which foreign sovereigns were entitled to under US law when the IOIA was enacted in 1945. In his view, a static interpretation best accords with the IOIA’s purpose of freeing international organizations from interference through domestic litigation.

Between Diane Desierto’s thorough recent post on this blog, and Ingrid Wuerth’s preview of the case on lawfare last year, there is no need to rehash the facts and issues here. Suffice it to say that the case mostly plays out on the familiar turf of statutory interpretation – pitting Roberts, the textualist, against Breyer, the purposivist. Read the rest of this entry…

Print Friendly, PDF & Email
 

SCOTUS Decision in Jam et al v. International Finance Corporation (IFC) Denies Absolute Immunity to IFC…With Caveats

Published on February 28, 2019        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Editor’s Note: In view of this landmark SCOTUS decision yesterday, this post is a brief deviation from our ongoing Symposium for the ESIL Interest Group on Migration and Refugee Law on the UN Global Compacts on Migration and Refugees: The Twin Peaks?.  We immediately continue with the Symposium after this post.

When it rains, it somehow pours. February 2019 ended up being such a landmark month for international law adjudication.  A day after the International Court of Justice released its landmark Chagos Advisory Opinion (finely discussed by Marko Milanovic here), the Supreme Court of the United States (SCOTUS) issued its 27 February 2019 decision in Jam et al. v. International Finance Corporation, (586 U.S. ___ 2019).  The decision squarely rejects the defense of absolute immunity invoked by the International Finance Corporation (IFC) through the United States’ International Organizations Immunities Act (IOIA) of 1945, with respect to a damages suit for negligence, nuisance, trespass, and breach of contract filed in 2015 before the US District Court for the District of Columbia, by a group of farmers and fishermen in India (with assistance from the NGO EarthRights), concerning the IFC’s inadequate supervision of the environmental and social action plan over its US$450 million loan to construct a coal-fired power plant in the state of Gujarat.  The damages suit invokes the IFC’s own internal audit through the Compliance Advisor Ombudsman (CAO), admitting that the IFC did not adequately supervise the environmental and social action plan for the project.  

Last week, I wrote about the evidence from Inspection Panel’s body of investigation reports in about 131 cases thus far, showing ongoing gaps between the World Bank’s articulated commitments to Agenda 2030 and the Paris Agreement, with its actual operational practices in environmental and social action compliance methods that deliberately refuse to internalize the actual international human rights, environmental, climate change, and labor obligations of States in the Bank’s lending operations for development projects. In this respect, the SCOTUS decision is of landmark impact, because it opens the door for US courts to potentially determine the nature of the IFC’s legal responsibilities beyond the lines of accountability internally designed at the World Bank through the independent Inspection Panel or the compliance auditing process at the CAO.  Whether or not the suits will prosper on the merits, of course, is another matter altogether, noting how business and human rights litigation strategies have evolved in the United States after SCOTUS decisions in Kiobel v. Royal Dutch Petroleum and Jesner v. Arab Bank PLC.  

There are also caveats to the decision itself, as carefully penned by SCOTUS Chief Justice Roberts.  When one goes through the Court’s reasoning, the Court also signaled that “restrictive immunity hardly means unlimited exposure to suit for international organizations.” 

Read the rest of this entry…

Print Friendly, PDF & Email
 

Does the ICC Statute Remove Immunities of State Officials in National Proceedings? Some Observations from the Drafting History of Article 27(2) of the Rome Statute

Published on November 12, 2018        Author:  and
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Following oral hearings held in September, the Appeals Chamber of the International Criminal Court (ICC) is currently deliberating in Jordan’s Appeal of the Pre-Trial Chamber’s decision holding that it had failed to cooperate with the ICC by refusing to arrest and surrender Sudan’s President, Omar Al-Bashir, when he visited Jordan. Central to the determination of whether Jordan, a party to the ICC Statute, failed to comply with its obligations of cooperation under the Statute is the issue of whether Jordan was obliged to respect the immunity ratione personae that the Sudanese President would ordinarily be entitled to as a serving head of state.

As is well known, when the ICC seeks to exercise its jurisdiction over a state official who ordinarily possesses immunity under international law from foreign criminal jurisdiction, the question of immunity may, potentially, arise at two levels. First, the issue of international law immunity with respect to the ICC may possibly arise at the so-called ‘vertical level’, i.e in the relations between the ICC, on the one hand, and the accused person and his or her state, on the other. The question that arises here is whether the accused person (as a state official entitled to international law immunities) or his or her state, may plead those immunities before the ICC itself, such as to prevent the Court from exercising jurisdiction over him or her. Second, and more commonly, the issue of immunity will arise at the so-called ‘horizontal level’, i.e in the relations between a state that is requested by the ICC to effect an arrest or surrender, on the one hand, and the state of the accused person, on the other. Here, the question is whether a state that is requested by the ICC, to arrest or surrender the official of another state, may do so, where to do so would require the requested state to violate the immunities that the foreign state official ordinarily possesses under international law. In particular, the question at this horizontal level is whether there is something about the ICC’s request for cooperation that would mean that the obligations which a state ordinarily owes to another to consider inviolable the person of a serving foreign head of state no longer apply. This is the main question that the Appeals Chamber is called upon to resolve in the Bashir case. In this post, we do not propose to examine the range of arguments put to the Chamber on this question. Rather this post will consider one specific question that is critical to the Court’s assessment and to the more general question of how the ICC Statute affects the immunity of state officials.

The post considers whether the provision of the Rome Statute that removes immunity – Art. 27(2) – only removes immunity at the ‘vertical level’ (before the Court itself) or whether it does so at the ‘horizontal level’ (before national authorities) as well. In particular, the post throws new light on this question through an examination of the drafting history of that provision. Consideration of the drafting history shows that the drafters of the provision considered, throughout the period of elaboration of the Statute, that what would become Art. 27 was to have effect not just in proceedings before the ICC itself but also in national proceedings related to the ICC’s exercise of jurisdiction. Read the rest of this entry…

Print Friendly, PDF & Email
 

The ‘Security Council Route’ to the Derogation from Personal Head of State Immunity in the Al-Bashir Case: How Explicit must Security Council Resolutions be?

Published on September 19, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Last week, the Appeals Court of the International Criminal Court (ICC, the Court) held hearings in relation to Jordan’s Appeal from a decision of Pre-Trial Chamber (PTC) II holding that it has failed to cooperate with the Court in the arrest and surrender of Sudan’s President, Omar Al-Bashir. As is well known, Al-Bashir is presently subject to an ICC Arrest Warrant for committing war crimes, crimes against humanity and genocide in Darfur, following the referral of the situation by the Security Council (SC) to the Court. He has made a series official visits to Jordan and other states parties to the ICC Statute (the Rome Statute). However, none of those states has dared to arrest him to date. Their principal argument is that Al-Bashir enjoys personal immunities from foreign domestic jurisdiction under treaties and customary international law, that these are not covered by the removal of immunity in Art. 27(2) of the Rome Statute, and are thereby safeguarded by Art. 98 of the Statute.

The hearings, together with the Appeals Chamber’s decisions leading to them, represent a unique moment in the history of international criminal law for two main reasons. First, this is the first time in which the ICC has invited, accepted and heard submissions from leading international law scholars as amici curiae, as well as engaged in direct (and sometimes heated!) oral discussions with them. Secondly, some of the legal and policy issues discussed in the hearings are of fundamental importance to international criminal law and public international law in general. They include questions such as the extent of the SC’s powers, a possible customary international law exception to personal immunities before international criminal tribunals, and the practical importance of preserving such immunities for international peace and security. Thus, watching the hearings online has certainly kept some of us entranced during the entire week.

However, aside from the special role attached to academic commentary and from the systemic issues discussed in the hearings and in the written observations, one question seems to have been at the heart of the debates on Al-Bashir’s immunities. This question is whether the SC can implicitly derogate from personal immunities otherwise applicable under treaties or customary international law, or whether it must do so explicitly. Indeed, all parties and participants seem to agree that the SC has the power to displace personal immunities and other rules of treaty or general international law, except for jus cogens norms. Yet they disagree as to how clear the Council must be in order to do so. Read the rest of this entry…

Print Friendly, PDF & Email
 

The Bashir Appeal at the ICC

Published on September 10, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

This morning, the ICC Appeals Chamber of the International Criminal Court (ICC) begin its hearings in the appeal of Jordan against the decision of the Pre-Trial Chamber that Jordan failed to comply with its obligations under the ICC Statute by failing to arrest Sudanese President Omar Al-Bashir when he visited Jordan. The hearings raise the question whether a party to the Statute must respect the immunity of the head of state of a non-party to the statute when the arrest of the latter is sought by the ICC. These are issues that have been discussed with respect to President Bashir from the moment when the warrant for his arrest was issued by the ICC. They have also been the subject of four (conflicting) decisions by the Pre Trial Chambers. It is now hoped that the Appeals Chamber will issue a decision that will settle the position of the ICC with respect to this issue. Over the course of this week, the Appeals Chamber will hear not only from Jordan and the Prosecutor but also from the African Union, the League of Arab States, and a number of academics that have been permitted to make submissions to the Chamber.

In July, AJIL Unbound, the online supplement to the American Journal of International Law, published a symposium on “The Rome Statute of Twenty”. That symposium, edited by Judge Theodor Meron & Professor Maggie Gardner, is composed of essays mostly by serving and past judges of the ICC and the ad hoc tribunals. It was a pleasure to be asked to contribute to that symposium. In my contribution, titled, “The Immunity of Heads of States of Non-Parties in the Early Years of the ICC”, I chose to write on the issues that have arisen in the Bashir Appeal. I have written on these issues before and summarise my views in the limited space I had in the AJIL Unbound essay. My introduction to the essay is as follows: Read the rest of this entry…

Print Friendly, PDF & Email
 

Jurisdictional Immunities in the New York Southern District Court? The case of Rukoro et al. v. Federal Republic of Germany

Published on August 13, 2018        Author:  and
Twitter
Facebook
Google+
LinkedIn
Follow by Email

In 2015, German State officials began referring to the atrocities committed by Imperial German soldiers in today’s Namibia between 1904 and 1908 as ‘what would now be called genocide’. This paradigm shift sparked considerable societal debate about Germany’s long neglected colonial past – finally, one might say. Although an official apology is still lacking, Germany and Namibia are currently addressing this ‘terrible chapter in history’ at an inter-State level. Despite this diplomatic progress, however, and much to the dismay of many descendants of victims of the German colonial era, individual compensation is not a subject of those negotiations. On 5 January 2017, various Herero and Nama representatives filed a (subsequently amended) class action complaint against Germany in the New York Southern District Court, which addresses both past and present day issues (for an overview of the case see here and here). The plaintiffs, first, request compensation for ‘the horrific genocide and unlawful taking of property’ by Germany (complaintpara 1). Secondly, the plaintiffs ask the Court to declare that their exclusion from the ongoing negotiations between Germany and Namibia violates international law (ibid. para 2).

After more than one and a half years of proceedings, things now seem to be getting serious. At a ‘pre-trial conference’ held on 31 July, both parties pleaded for the first time on the delicate question of the Court’s jurisdiction. This short contribution focuses on whether and to what extent Germany is entitled to claim immunity from jurisdiction. It then analyses at which point of the proceedings this immunity would be (or has already been) violated, and considers possible implications of the case from an immunity perspective and beyond.

Can Germany claim immunity from jurisdiction?

Deriving from the sovereign equality of States, jurisdictional immunity protects States from being subjected to the jurisdiction of courts in another State. It is widely accepted in contemporary international law that States only have an obligation to give effect to this immunity for another State’s acta jure imperii. The ICJ defined these as ‘exercises of sovereign power’ (Jurisdictional Immunities, para 60), as distinct from States’ private and commercial activities (acta jure gestionis), which are excluded from the scope of immunity.

Today’s negotiations between Germany and Namibia – the object of the plaintiffs’ second request – touch upon issues such as inter-State compensation (and other forms of redress). Such matters can only be settled by States acting in sovereign capacity, i.e. by way of acta jure imperii. The various acts of the colonial era – the objects of the plaintiffs’ first request – have to be distinguished. The genocidal crimes were committed by Imperial Germany’s armed forces in military operations. A State’s armed forces typically exercise sovereign power. The situation is less clear when it comes to the takings of property. The plaintiffs seem to argue that these were sovereign acts (complaint, para 39). Yet, the German authorities also stripped many Herero and Nama of their belongings by (grossly unfair) contracts. If viewed as private law agreements, these might constitute acta jure gestionis. From an international law perspective, a more nuanced assessment of the different forms of colonial wrongs could therefore have been a promising strand of argument for the complaint. Read the rest of this entry…

Print Friendly, PDF & Email
 

The Use of Nerve Agents in Salisbury: Why does it Matter Whether it Amounts to a Use of Force in International Law?

Published on March 17, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Over the past few days, there has been discussion of whether the attempt to murder Sergei Skripal and his daughter, in the UK, by the use of a nerve agent amounts to an unlawful use force by Russia in breach of Art. 2(4) of the United Nations Charter and customary international law (see posts by Marc Weller, Tom Ruys, and Ashley Deeks). There is agreement that if the action was attributable to Russia, it would amount to a breach of at least some obligation under international law. Marc Weller, points out that the act would amount to an unlawful intervention and a violation of the territorial sovereignty of the UK. Marko argues that these acts would also be a violation of the human rights of the individuals concerned. However, the British Prime Minister characterised the act as an unlawful use of force. What I wish to do in this post is to ask why this categorisation might matter in international law. What exactly are the implications, as a matter of law, of characterising the act as a use of force? This was an issue that was raised in the comments to Marc Weller’s post and some of the points I make below have already been made in that discussion though I expand on them. As discussed below, this characterisation might have far reaching implications in a number of areas of international law, extending beyond the possibility of self-defence, to the possibility of countermeasures, the law relating to state responsibility, the qualification of a situation in the law of armed conflict, and international criminal law. I accept that many of the points discussed below are not clear cut, and some are even contentious. However, I think that having a catalogue of the possible consequences of the arguments relating to the use of force helps us to see more clearly what is at stake when we make these arguments.  

Read the rest of this entry…

Print Friendly, PDF & Email
 

International Law or Comity?  Exploring whether Grace Mugabe can successfully claim immunity for crimes committed on foreign soil.

Published on September 4, 2017        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Background Facts

On 14 August 2017 various news sites reported that Grace Mugabe, the wife of President Robert Mugabe of Zimbabwe had assaulted a young woman. A court hearing to obtain a statement from Mrs Mugabe was scheduled for the 15th but she failed to appear. On the evening of the 16th the Government of Zimbabwe directed a note verbale to the South African government invoking diplomatic immunity on her behalf and stating that Mrs Mugabe’s itinerary in South Africa included amongst private matters her attendance and participation at the scheduled SADC Heads of States/Governments Summit and other Bi-lateral Diplomatic Meetings.

The question which has gripped lawyers and laymen alike is whether or not Mrs Mugabe can successfully claim any kind of immunity under international law to shield herself from arrest and prosecution.  Media reports asserted that Mrs Mugabe claimed “diplomatic” immunity”. However, as the spouse of a sitting Head of State, ordinarily resident in Zimbabwe, Mrs Mugabe cannot be considered a diplomatic agent and is not entitled to the protections afforded under the Vienna Convention on Diplomatic Relations (VCDR). Customary international law also confers personal immunity on some state officials. This personal immunity is extensive in scope, and wide enough to cover both official and private acts by heads of state, heads of government and foreign ministers as the Arrest Warrant Case  points out. As Mrs Mugabe does not fall within any of the categories above, she cannot claim personal immunity. In addition, customary international law accords, functional immunity in relation to acts performed in an official capacity. This immunity covers the official acts of all state officials and of those who act on behalf of the state.  It is determined by reference to the nature of the acts in question rather than the particular office of the official who performed them. However, the alleged assault by Mrs Mugabe was not undertaken in the performance of any official duty and functional immunity is unavailable in relation to that act.

This post considers whether the Mrs Mugabe may have been entitled to immunity, while in South Africa, as the spouse of a head of state. The post first considers whether the spouse of a representative to SADC, an international organization, may be entitled to immunity. It then explores the immunity of family members of state officials on special missions and of heads of states. Read the rest of this entry…

Print Friendly, PDF & Email
 

The ICC’s immunity debate – the need for finality

Published on August 11, 2017        Author:  and
Twitter
Facebook
Google+
LinkedIn
Follow by Email

In a judgment given last month, on 6 July, the Pre-Trial Chamber of the International Criminal Court (ICC) confronted the vexed legal question of immunities for heads of state who are alleged to have committed international crimes. It did so in a case involving South Africa’s failure to arrest President Bashir of Sudan when he attended the AU heads of summit meeting in Johannesburg in June 2015.

While Judge Marc Perrin de Brichambaut wrote a separate opinion, the three-panel Pre-trial Chamber (PTC) reached the unanimous conclusion that South Africa had failed to comply with the request that had been issued by the ICC to arrest Bashir for serious crimes allegedly committed in the Darfur region of Sudan. The PTC found that states parties to the Rome Statute, such as South Africa, are required to arrest and surrender Bashir to the ICC where he is found in their territory.

We are not here debating the merits or otherwise of the PTC decision. It is enough to stress that the judgment comes at a fraught political time for the ICC, and its relationship with African states and the AU. The impetus for this joint piece arises from the legitimate and expressed concerns of African states parties (like South Africa) regarding their obligations to cooperate with the ICC in surrendering heads of states of non-state parties (like Sudan) to the Court in the light of, inter alia, the rules of customary international law on immunities.

The technical legal issues relate to the relationship between Articles 27 and 98 of the Rome Statute, which has been raised by a number of African states, particularly South Africa in relation to the Bashir case, as well as the African Union (AU). The subject has been a central concern of the AU as well as ICC member-states seeking measures to reform and improve the ICC. The concern, in a nutshell, is how to balance the obligations owed to the ICC to arrest heads of state, with the customary international law immunities that are ordinarily accorded to such officials. African states have felt the brunt of what have been described as “competing obligations” – being pulled in one direction to assist the ICC, and in the other direction by customary international law duty to respect official immunities. In recent times, Jordan, regarded by many as a friend of the ICC and the first Arab state to ratify the Rome Statute, has also had to confront the tension between the Rome Statute duty to arrest Al Bashir and the duty under customary international law to respect his immunities.

In the lead-up to the PTC’s finding on 6 July, South Africa had been invited by the ICC to make submissions to the PTC explaining its reasons for failing to arrest Bashir. The Prosecutor of the ICC filed submissions in response. And the PTC also admitted the Southern Africa Litigation Centre (the NGO that had brought cases in South Africa’s courts successfully challenging the government’s failure to arrest Bashir) to make submissions [all available here].

We were on opposing sides as lawyers in that dispute (with Tladi acting for the government, and du Plessis acting as counsel for SALC). We nevertheless now write jointly (and in our personal capacities) because of a shared belief that there remains a need for the dispute to be resolved finally through judicial means.  Read the rest of this entry…

Print Friendly, PDF & Email
 
Comments Off on The ICC’s immunity debate – the need for finality