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

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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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JordanPaust says

February 27, 2012

It is nice to have worked out your own logical scheme of things and to have some support from what I consider to be errant decisions from the ICJ, but where is the analysis of the meaning of the preamble to the Rome Statute and the meaning of Article 27(1) of the Statute, as well as Articles 27(2) and 28(2)? As we all know, when interpreting a treaty one must consider the preamble and other portions of the treaty and their ordinary meaning. Moreover, other relevant international agreements (like the Genocide Convention, the Geneva Conventions, the CAT -- each of which can reach a head of state and other officials) are relevant for interpretation. And what about the Charters of the IMT at Nuremberg and for the Far East? And what about the 1950 Nuremberg Principles? And what about the prosecutions that have actually occured of heads of state and other public officials, which are only increasing in the last several decades?
And, from a policy perspective, who wants to live in a world where someone like Adolf Hitler is immune from prosection or civil suit?

Dapo Akande says

February 28, 2012

Dear Jordan,

Thank you for the comment. In this post I was not trying to set out detailed arguments as to the scope of the immunty that Article 98 of the ICC Statute recognises. I did not intend, in this post, to discuss in full the extent to which heads of States and other officials may or may not have immunity from ICC jurisdiction or from arrest and surrender by States acting at the request of the ICC. Rather, I was seeking to make the more limited that point that when Art. 98 (1) refers to State immunity that reference includes a reference to the immunity of State officials and in particular includes a reference to the immunity of heads of States.

I have in fact dealt with Article 27 and its relationship with Article 98 in several posts on this blog (most recently at http://www.ejiltalk.org/icc-issues-detailed-decision-on-bashir%e2%80%99s-immunity-at-long-last-but-gets-the-law-wrong/) and also in journal articles (particularly (2004) 98 AJIL 407 http://www.jstor.org/pss/3181639)

With regard to your question on the underling policy, the immunity of serving heads of States from criminal prosecution should not (as the ICJ reminded us in the Arrest Warrant case!) necessarily be regarded as impunity. Heads of States lose their status immunity (immunity ratione personae) after they leave office. They can also be prosecuted domestically. These points have become more significant in recent years. The book Prosecuting Heads of States (Lutz & Reiger, eds, 2009) reminds us that:

"Since 1990, 65 former heads of state or government have been legitimately prosecuted for serious human rights or financial crimes. Many of these leaders were brought to trial in reasonably free and fair judicial processes, and some served time in prison as a result"

Just last month the former head of State of Guatemala was put on trial on for genocide and crimes against humanity (see http://www.bbc.co.uk/news/world-latin-america-16750880)

And then heads of ICC State parties (and as I argue) leaders of States in respect of which there is a Security Council referral to the ICC, also lose their immunity.

Hossein Sadat says

February 27, 2012

I fully concur with your interpretation from para 1, Article 98 of the Rome Statute. I find the opportunity and once more put some part of my earlier comment that I have sent before on Jens’note. Here: http://www.ejiltalk.org/head-of-state-immunity-is-not-the-same-as-state-immunity-a-response-to-the-african-unions-position-on-article-98-of-the-icc-statute/#comment-14450

Article 98 (1) of the ICC’ Statute was proposed by the delegation of Singapore during the Rome Conference on 26 June 1998 (available here : http://www.legal-tools.org/en/doc/3e2694/ ) and later on it was adopted in the Working Group on International Cooperation and Judicial Assistance on 16 July 1998 with some minor changes (available here: http://www.legal-tools.org/en/doc/6c12cb/)

I agree with Jens that head of states are not covered in the category of “diplomats” and the reference to diplomatic immunity in article 98 (1) is not relevant to the immunity of heads of state. Even, the foreign ministers were not considered as diplomats in the famous case of Yourodia and for this reason the ICJ did not apply the 1961 Vienna Convention and instead it applied the customary international law. That is the same here.

But on the other side, I concur with Dapo that the reference to “State Immunity” dose include the immunity of State Officials too.The travaux préparatoires of the Rome Statue does not clearly indicate the intent of 98 (1) drafters and what is the exact scope of the “the State or diplomatic immunity of a person or property of a third State” ratio persona. However, if one utilizes the principles and rules governing treaty interpretation in particular those referred in the VCLT and in the ICJ jurisprudence, it would be acceptable to argue that “State Immunity of a person” shall be read as “immunity of state officials” rather than only the “immunity of the State itself”. These are two dimensions of the same coin and that was looked in the same way recently by the ICJ.

I had a different interpretation from para. 87 of the ICJ judgement in the Immunity Case (Germany v. Italy) that was invoked by Jens. The Court at the beginning of the paragraph said that Pinochet case concerned the immunity of head of State and not immunity of the State “itself”. It means that the immunity of State does have two folds; one to the State “itself” and the other to those who represent the State. This interpretation would gives a role to the word “person” in para 1, Article 98 of the Rome Statute too. It would lead to a coherent and reasonable understanding from this provision. It could be possible to introduce different arguments sustain such interpretation. If the notion of “Immunity of State” does not include the natural persons, then what practical effects are expected for this paragraph? How a request for “surrender” or even “assistance” would be relevant with State Immunity, in particular jurisdictional immunity? It is noteworthy that in the first draft prepared in the Rome Conference there was no reference to “assistance” and only “transfer, extradition and surrender” were used as the title of the provision which indicates that the Article is less pertinent to immunity from execution and the main purpose of the drafters was the immunity of those who could be subject of cooperation (transfer, extradition and surrender) with the Court. If one would limit this paragraph only to the immunity from execution then what role for the word “person”. And finally, when the immunity for diplomats has been accepted in the Statute, a priori it shall be the reasonable to presume the drafters were intending to the provide the same for the higher officials -for sure not all but at least for heads of states and foreign ministers- that has been admitted in the customary international law. The reference to the “international law” is also another indication that the immunity under this paragraph meant to cover both those embodied in the treaties and the international customary law as well.

As it was indicated by Prof Crawford and Prof Sands in the context of para 2, Article 98: “The general object and purpose and of the ICC Statute is, however, subject to limitations which States Parties have accepted. Article 98 identifies two sets of obligations that may lawfully prevent a State Party from acceding to a request to surrender a person to the Court – State and diplomatic immunity (under Article 98(1)), and a certain class of international agreements (under Article 98(2)). On its own terms, therefore, the ICC Statute limits the possibility of the complete realization of the policy of avoiding impunity by ensuring investigation or prosecution of persons within the territory of a State Party.” Available here: http://www.legal-tools.org/en/doc/2733c5/

jpaust says

February 28, 2012

and even the Arrest Warrant opinion recognized per dictum that immunity before international criminal tribunals does not pertain.

Douglas Guilfoyle says

February 29, 2012

No, the Arrest Warrant opinion did not say there can never be a plea of immunity before international courts.

It simply says "an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction" (para 61). The judgment then refers expressly - and only - to the ICTY, ICTR established under Chapter VII and Art 27(2) of the Rome Statute.

The lack of immunity before these courts arises (for members of the UN) from the exercise of Chapter VII powers and (for ICC members) from the express treaty provision.

All that once can say based on para 61 of Arrest Warrant is that there must be a clear source of law removing immunity; not that there can be no plea of immunity before international courts.