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Home Archive for category "State Immunity" (Page 6)

Head of State Immunity is a Part of State Immunity: A Response to Jens Iverson

Published on February 27, 2012        Author: 

In a post here a couple of weeks ago Jens Iverson argues that “Nowhere does the Rome Statute explicitly recognize head of state immunity as a reason not to comply with obligations under the Statute.” He argues that although Article 98(1) of the ICC Statute instructs the Court not to proceed with “a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State”, this provision does not apply to Head of State immunity. In his view, this is so because head of state immunity is not the same thing as either state immunity or diplomatic immunity. Jens’ basic point is that Art. 98 only covers the immunity of the State (and diplomatic immunity) and that the immunity of heads of States is something different from this. It is true that there are particular rules that apply to the immunity of the head of State and it is also correct that the scope of the immunity of the head of State (and indeed of other State officials) is different from the scope of the immunity of the State itself. However, it is incorrect to say that head of State is not an aspect of State immunity. In my view, it is also incorrect to suggest that the reference to State immunity in Article 98(1) does not include the immunity of the head of State or other state officials.

The immunity of the head of State (or other State officials) is granted not for the personal benefit of the head of State but is for the benefit of the State. This is why that immunity can be waived by the State. The immunity is one which belongs to the State, it is the right of the State, which is why the State is entitled to insist on compliance with the international law rules. When a State insists, in a diplomatic claim or in judicial proceedings before an international tribunal, that there has been a violation of the immunity of the head of State (or other State official), the State does not have to exhaust domestic remedies. This is because the State is seeking to enforce its own rights. This is because the State is seeking to enforce its own rights. No one suggested that the DR Congo should have first brought proceedings in Belgium before initiating the Arrest Warrant Case dealing with the immunity of its Foreign Minister. This is because the State was seeking to enforce its own rights. The immunity belongs to the State.

As Sangeeta Shah and I explain in an EJIL article, part of the reason for international law granting immunity to State officials from the jurisdiction of other States is because the State is a corporate body which must act through natural persons. To grant immunity to the State without providing for some immunity to State officials would completely defeat the immunity of the State itself. So, State immunity includes the immunity of its officials for acts performed in the course of their functions. This is immunity ratione materiae. Head of State immunity is immunity ratione personae but this variant of immunity is also conferred for the benefit of the State rather than that of the individual. In the Arrest Warrant Case, the ICJ stated with respect to the immunity ratione personae of the Foreign Minister:

“In customary international law, the immunities accorded to Ministers for Foreign Affairs are not granted for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective States.” (para. 53)

The same is true of the head of State. His or her immunity is also for the benefit of the State and is in that sense merely a part of the immunity of the State. When Art. 98(1) refers to the obligations of a State with regard to State immunity of a person it must be taken as referring to all those immunities which to individuals as a result of their connection with a State. Thus it not only includes the immunity of all State officials ratione materiae (to the extent that they apply), consular immunity, immunity of special missions and all those immunities which apply ratione persone, including the immunity of the head of State.

If Jens position  – that head of State immunity is not part of State immunity – were correct, then we would be in the anomalous position that other State officials with immunity ratione personae could benefit from Article 98 but the Head of State could not. This would be a manifestly absurd result. Though of course if one takes the view of the ICC Pre-Trial Chamber in the Bashir Case (see comment here) no one benefits from Art. 98 and the drafters wasted their time in including it in the Statute. Another manifestly absurd position.

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Germany v. Italy: A View from the United States

Published on February 15, 2012        Author: 

Chimène I. Keitner is Associate Professor of Law, University of California Hastings College of the Law, and Co-Chair of the ASIL International Law in Domestic Courts Interest Group. In 2010, she represented amici Professors of Public International Law and Comparative Law in the U.S. Supreme Court case Samantar v. Yousuf.

U.S. lawyers are poring over the ICJ’s decision in Germany v. Italy to see what impact, if any, it might on legal proceedings in U.S. courts. My assessment is, “not much.” The immunity of foreign states is governed by the Foreign Sovereign Immunities Act (FSIA), which generally codifies the restrictive theory of immunity, except for provisions allowing certain types of suits against designated state sponsors of terrorism (the current list includes Cuba, Iran, Sudan, and Syria). The ICJ’s reasoning lends some support to the view that permitting suits against foreign states for their non-commercial acts absent an express waiver violates customary international law, but the court was careful to limit its holding to suits for conduct performed by one state’s armed forces during armed conflict on the territory of the forum state (¶ 78). In any event, within the U.S. legal system, Congress’s intent to hold state sponsors of terrorism liable will govern.     

The ICJ’s acceptance of war crimes as acta jure imperii for the purpose of state immunity is consistent with current U.S. practice, as reflected in the Supreme Court’s decision in Saudi Arabia v. Nelson. Similarly, the United States has not yet recognized a jus cogens exception to state immunity, as reflected for example in the D.C. Circuit Court of Appeal’s decision in Princz v. Federal Republic of Germany, and in the absence of a statutory jus cogens exception in the FSIA. 

Because both Germany and Italy agreed that state immunity is a matter of customary international law (¶ 53), the ICJ did not dwell on the possibility that state immunity might instead be a matter of comity. The distinction between customary international law and comity remains important as a matter of U.S. interpretation and application of state immunity, however, because—contrary to the language in Germany’s memorial (¶ 66 & n.91)—the United States as a general matter does not set out to disregard international law in most circumstances.

As for the immunity of current and former foreign officials, U.S. courts are still grappling with how to identify and define the applicable standards following the Supreme Court’s 2010 decision in Samantar v. Yousuf, which held that the FSIA does not govern such immunity where the foreign state is not the “real party in interest.” The ICJ has said that its decision in Germany v. Italy does not speak to whether, and to what extent, immunity might apply “in criminal proceedings against an official of the State” (¶ 91); nor, presumably, does it speak to civil proceedings in which the state is not the real party in interest. Read the rest of this entry…

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Head of State Immunity is not the same as State Immunity: A Response to the African Union’s Position on Article 98 of the ICC Statute

Published on February 13, 2012        Author: 

Jens Iverson is a researcher for the Jus Post Bellum Project at the Grotius Centre for International Legal Studies, University of Leiden, the Netherlands.

On 9 January 2012, the African Union (AU) Commission issued a press release responding to the decisions (see here and here) issued by Pre-Trial Chamber I of the International Criminal Court (ICC) last December regarding the “alleged” failure by Chad and Malawi to comply with the cooperation requests with respect to the arrest and surrender of President Al Bashir of Sudan (For previous EJIL:Talk! Commentary on the ICC decisions and the AU response see here and here). In the press release, the AU makes the  assertion that the decision has the effect, inter alia, of:

“Rendering Article 98 of the Rome Statute redundant, non-operational and meaningless.”

There has been much discussion (including by Dapo Akande on this blog and elsewhere) regarding the meaning and effect of Article 98 of the Rome Statute. Paragraph 1 of that provision states that:

 “The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.”

 Unfortunately, the following points are often not emphasised in discussions or rulings on Article 98(1) and are entirely overlooked by the AU Commission:

i.          Article 98(1) only covers “State or diplomatic immunity of a person or property of a third State”;

ii.         Head of state immunity is not the same thing as either a) state immunity or b) diplomatic immunity; and

iii.       Head of state immunity is the relevant immunity in this case. 

Nowhere does the Rome Statute explicitly recognize head of state immunity as a reason not to comply with obligations under the Statute.  As is well known, Article 27(2) clearly and unambiguously states that immunities which may attach to the official capacity of a person do not bar the Court from exercising jurisdiction over such a person.  Particularly in light of Article 27(2) and the obvious importance of the question of head of state immunity, if the framers of the Rome Statute intended Article 98(1) to apply to heads of state, one might have expected that explicit language to that effect would have been negotiated at the Rome Conference.  It was not.  Rather, as this analysis will briefly elaborate, it appears that Article 98 was crafted not to interfere with States qua States and with the efficient performance of the functions of diplomatic missions, while retaining the capacity to hold heads of state to account. 

Read the rest of this entry…

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The African Union’s Response to the ICC’s Decisions on Bashir’s Immunity: Will the ICJ Get Another Immunity Case?

Published on February 8, 2012        Author: 

After deciding the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) case (about which I and others will have more to say on the blog soon), there is the prospect of the International Court of Justice (ICJ) being asked to decide another immunity case. At the summit of the Assembly of the African Union held last week in Addis Ababa, Ethiopia, African Heads of States and Heads of Government  requested:

“the [AU]  Commission to consider seeking an advisory opinion from the International Court of Justice regarding the immunities of state officials under international law.”

As has been the pattern over the past three or four years, the AU Assembly has, at its biannual meetings, adopted a number of decisions regarding cases at the  International Criminal Court. In the latest meeting,  the AU Assembly reiterated its request that the UN Security Council defer the proceedings against Sudanese President Bashir in accordance with Article 16 of the Rome Statute. It also ” urge[d] all [AU] Member States to comply with [AU] Assembly Decisions on the warrants of arrest issued by the ICC against President Bashir of the Sudan pursuant to Article 23(2) of the [AU] Constitutive Act and Article 98 of the Rome Statute of the ICC.” Those prior decisions had called on African States not to comply with the request by the ICC for the arrest and surrender of Bashir.

The AU Assembly’s latest decision on the ICC proceedings are different from prior decisions in that this time around, there is no call for deferral of the ICC proceedings arising out of the situations in Kenya or in Libya (as had been called for in earlier decisions). This absence should be seen as improving the tone of the African reaction to ICC proceedings. It is now clear that the AU’s objections, at least at present, are really only with respect to one case – the Bashir case. The other difference in the AU Assembly decision is the call for an advisory opinion from the ICJ on the immunities of State officials under international law. Although the AU decision does not make this clear, presumably what the AU wants is an opinion that would clarify the immunity (or otherwise) of State officials from prosecution by the ICC and from enforcement action taken by States acting at the request of the ICC. Given the context of the decision, it does not seem to be the case that the AU wants the ICJ to rule on the immunity of state officials from the jurisdiction of other States that are not acting at the behest of the ICC. In any case, the ICJ, in the Arrest Warrant Case (DRC v Belgium), has already set out its view on aspects of immunity of state officials from the jurisdiction of other States.

The ICC Pre-Trial Chamber ruled, just last December, on the immunity of President Bashir from ICC Prosecution and from arrest in ICC State parties (see my comments on those decisions here). Asking the ICJ to provide an advisory opinion on this issue would be akin to trying to appeal the decisions of the ICC Pre-Trial Chamber to the ICJ rather than to the ICC Appeals Chamber. It would be an express invitation for judicial confrontation. I discuss below whether there is any real prospect of the ICJ rendering an advisory opinion on the immunity of State officials from ICC prosecution or arrest for the purposes of ICC prosecution. In my view, there is no legal bar to the Court deciding on this issue. The main obstacle would be whether African States can muster enough political support within the United Nations to get the request for an advisory opinion.

AU Commission Press Release on ICC Pre-Trial Chamber’s Decisions on Bashir’s Immunity

Prior to the AU Summit, the AU Commission issued a press release on January 9 reacting to the decisions of the ICC regarding the immunity of Bashir. In the Press Release,

“the African Union Commission expresses its deep regret that the decision has the effect of:

(i) Purporting to change customary international law in relation to immunity ratione personae;

(ii) Rendering Article 98 of the Rome Statute redundant, non-operational and meaningless;

(iii) Making a decision per incuriam by referring to decisions of the African Union while grossly ignoring the provisions of Article 23 (2) of the Constitutive Act of the African Union, to which Chad and Malawi are State Parties, and which obligate all AU Member States ‘to comply with the decisions and policies of the Union’.”

Read the rest of this entry…

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Germany v. Italy: Germany Wins

Published on February 3, 2012        Author: 

The International Court of Justice this morning rendered its judgment in the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) case (judgment; case materials). As widely expected, Germany won, and won hands down. On the main issue of jurisdictional immunity the Court decided in Germany’s favour by 12 votes to 3 (Judges Cancado Trinidade and Yusuf and Judge ad hoc Gaja dissenting; UPDATE: having skimmed the dissents, it seems that only Judge Cancado Trinidade relied on the jus cogens immunity override theory). On all other claims – immunity from enforcement, jurisdictional immunity in exequatur proceedings and reparation – the Court decided in favour of Germany by 14 votes to 1 (only Judge Cancado Trinidade dissenting). So there’s been no serious split in the Court, to the eternal regret of this year’s Jessup competitors, to whom I extend my sympathies. As is now customary, Judge Cancado Trinidade appended a jolly 88-page dissent, almost twice as long as the Court’s judgment (for what it’s worth, my sympathies equally extend to his clerks). Several other judges appended declarations or separate opinions, but less than could perhaps have been expected – again, the Court was fairly unified.

We will have more substantive commentary on the judgment in the week to follow. For now, however, I’ll just note some key paragraphs in the Court’s judgment: para. 58 (inter-temporal law), para. 60 (state acts may be unlawful but still be acts jure imperii), paras 77-78 (no territorial tort exception to immunity for the acts of the armed forces of a foreign state on the territory of the forum state in times of armed conflict; note the Court’s extensive reliance on domestic judgments and those of the European Court of Human Rights), para. 91 (no exception to state immunity merely because a serious violation of IHL or IHRL is alleged), para. 93 (no conflict between a substantive rule prohibiting certain conduct that has the status of jus cogens and the procedural rule establishing state immunity; therefore, no jus cogens override of immunity), paras. 101-102 (immunity does not depend on the availability of an alternative avenue for redress), para. 108 (because immunity is upheld, no need to examine questions whether individuals are directly entitled to compensation for violation of IHL and whether states may validly waive the claims of their nationals in such cases), para. 119 (immunity from enforcement), paras. 130-132 (jurisdictional immunity in exequatur proceedings).

A long-anticipated judgment, and one in which I think the Court both reached the correct result and did so in a well-reasoned decision – but I’m sure it’ll prove controversial nonetheless.

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ICC Issues Detailed Decision on Bashir’s Immunity (. . . At long Last . . . ) But Gets the Law Wrong

Published on December 15, 2011        Author: 

This week the ICC issued two decisions regarding whether Sudanese President Omar Al Bashir is immune from arrest in ICC parties (see here and here). The decisions were issued in the context of proceedings considering whether Malawi and Chad had breached their obligations of cooperation under the Rome Statute by failing to arrest Bashir when he visited those countries in late 2011. The Malawi decision, issued a day before the Chad decision, is the first detailed decision regarding the immunity of Bashir. In summary, the Pre-Trial Chamber held that:

“Chamber finds that customary international law creates an exception to Head of State immunity when international courts seek a Head of State’s arrest for the commission of international crimes. There is no conflict between Malawi’s obligations towards the Court and its obligations under customary international law; therefore, article 98(1) of the Statute does not apply.” (para. 43)

The Chamber therefore held that Malawi (and Chad) by failing to arrest and surrender Bashir had failed to comply with their obligations to cooperate with the ICC. Moreover, the Chamber held that it has “the sole authority” to decide whether immunities are applicable in a particular case (para. 11) and that by failing to bring the issue of immunity to the ICC for determination there had been a further breach of the obligation of cooperation.

As readers will surmise from my previous posts on the issue (here, herehere, and here), I agree with the result reached by the Pre-Trial Chamber (that Bashir is not immune from arrest) but I disagree with the reasoning. In particular, I think the Court is wrong to suggest that there is a general exception to Head of State immunity in prosecutions before international courts. Also, even if that were true, as Paola Gaeta has demonstrated, it would not follow that as a matter of international law national authorities were then free to depart from the immunity which customary international law grants to heads of States from arrest by national authorities.

Better Late than Never

Before I get to the substance of the decision, I would like to say that it has taken far too long for the ICC to issue a detailed decision on the immunity issue. The decisions of this week come nearly three years after the ICC Pre-Trial Chamber first issued an arrest warrant for Bashir in March 2009 and after the ICC has on several occasions reported States to the UN Security Council for failing to cooperate with regard to Bashir’ arrest and surrender (see previous post here). In previous posts (see here and here) over the last couple of years I have argued that it was most unfortunate that the ICC judges had chosen to avoid dealing with the immunity issue since: there was a reasonable argument that Bashir was immune from arrest as a head of State of a non-party; the African Union (AU) had made this precise argument in issuing several decisions calling on AU members States not to cooperate with the Court; the resulting tension with African States was proving somewhat damaging to the Court; and most importantly Article 98 of the Court’s Statute requires the Court to deal with the issue of immunity. In the decision of the Pre-Trial Chamber on Bashir’s arrest warrant (and in the decision regarding the Gaddafi Arrest Warrant), the Chamber had stated that:

“the current position of Omar Al Bashir as Head of a state which is not a party  to the Statute, has no effect on the Court’s jurisdiction over the present case.” Para.  41

So it had addressed the question of the position of heads of State but it had failed to deal head on with the customary international law of immunity and the interplay between Articles 27 and 98 of the ICC Statute which both deal with immunity and appear, at first glance, to be contradictory. Better late than never. But getting there late is not really good enough. Ignoring this sensitive issues has itself contributed to the tensions with African States and to the feeling that the position of those States is just being ignored. Read the rest of this entry…

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US Appeals Court holds that Former Foreign Officials Entitled to Immunity in Civil Suit alleging War Crimes

Published on May 3, 2009        Author: 

The Second Circuit of the US Court of Appeals has recently (April 16, 09) held  in Matar v. Dichter that the former head of the Israeli General Security Service is immune in a civil suit brought under the US Aliens Tort Claims Act (28 USC  § 1350) alleging war crimes and extrajudicial killing. The suit relates to Dichter’s participation in an attack on a suspected Hamas leader (Saleh Mustafah Shehadeh) in July 2002. Shehadeh’s apartment was bombed by an Israeli military jet in attack which destroyed the apartment building and surrounding buildings. Apart from Shehadeh, 14 other people were killed in the attack. This case is part of  a growing list of US cases addressing the legal basis of the immunity of foreign officials. There is a split among the Circuits of the Court of Appeals as to whether foriegn officials are to be considered as an “agency or instrumentality” and thus entitled to immunity under §1603 the US’s Foreign Sovereign Immunity Act (FSIA) (for recent analysis, see Bradley, Foreign Officials and Sovereign Immunity in US Courts, ASIL Insights, Mar, 2009). Dichter’s argument that he was immune under the FSIA was accepted by the first instance District Court (see here). In an earlier case, the Second Circuit Court of Appeals had held that:

“an individual official of a foreign state acting in his official capacity is the ‘agency or instrumentality’ of the state, and is thereby protected by the FSIA.”  In re Terrorist Attacks on 15 September 11, 2001, 538 F.3d 71, 81 (2d Cir. 2008)

However, in Matar v. Dichter, the Second Circuit upheld Dichter’s immunity, but noted that the question presented in this case was whether formerforiegn officials are entitled to immunity under the FSIA. Taking a different approach, the Court stated:

We decline to decide this close question because, whether the FSIA applies to former officials or not, they continue to enjoy immunity under common law. (P. 10)

In upholding the immunity of former officials under the common law, the Second Circuit relied on the views of the US Executive Branch (see here and here) which has long argued that it is not the FSIA that provides immunity to foreign officials (serving or former) in US law but rather the common law and customary international law. Also, the US Executive’s Statement of Interest (see here) argued that, under customary international law, there is no exception to the immunity of foreign officials based on alleged violations of jus cogens norms. This view was accepted by the Second Circuit, correctly in my view. In a previous post, I have argued that there is no jus cogens exception to immunity.

Although, at first glance, these cases relate only to how international law of state immunity is translated to US law, they raise issues of more general interest to international lawyers. The first question raised by these US cases is whether the functional immunity of foreign officials (the immunity of foreign officials with respect to acts performed in the exercise of their official capacity) is the same as the immunity of foreign States. If the two are the same then there is good reason for holding that foreign officials are a manifestation of the State for the purpose of according immunity and there would be good reason to interpret the FSIA (and similar immunity legislation, eg in the UK and Australia) as extending to individual officials. However, this would be erroneous. Read the rest of this entry…

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