The Law of Immunity and the Prosecution of the Head of State of the Russian Federation for International Crimes in the War against Ukraine

The debate on how to prosecute the international crimes linked to the aggression of the Russian Federation against Ukraine is ongoing (for example, here, here and here). One of the most prominent aspects of the debate concerns the question of how to prosecute the persons who are allegedly most responsible for such crimes, particularly, the head of state of the Russian Federation and commander-in-chief of its armed forces, Vladimir Putin.

The prevalent view is that, apart from prosecution in their own country, heads of state may only be prosecuted in an international court. Underpinning such view is a decision of the International Court of Justice (ICJ) in the Arrest Warrant case. In this case, the ICJ considered that – despite the fact that heads of state, heads of government and foreign ministers enjoy “full immunity” from foreign jurisdiction and inviolability – they can be prosecuted before “certain international criminal courts”. Hence, the debate has so far focused on the possibility of his prosecution at an international criminal court or tribunal. The debate has been particularly alive in what concerns aggression, the “supreme international crime”. This is because the ICC does not have jurisdiction over the crime of aggression committed against Ukraine. Other avenues to trigger the jurisdiction of the court, like a referral by UNSC, are also in practice blocked because Russia holds a veto power at the UNSC. Several proposals have emerged to overcome the problem. The most prominent are: an amendment of the ICC Statute to permit a referral to the ICC by the United Nations General Assembly (UNGA); a Nuremberg-style ad hoc tribunal; and a hybrid ad hoc tribunal created by agreement between the UN and Ukraine. Other proposals include: a new specialized permanent international tribunal; an international tribunal established by the UNGA; and a hybrid tribunal created by agreement between Ukraine and the Council of Europe, or between Ukraine and the European Union. 

To a greater or lesser extent, all proposals assume they are able to “pierce the veil” of head of state immunity. The rationale is that Russian leaders cannot “plausibly” assert personal immunities if the UNGA refers the situation to the ICC, and that truly “international” tribunals avoid immunity issues that can be raised in national courts or in tribunals created by countries pooling their national jurisdictions. In other words, proposals claim to be “sufficiently international in nature” to bypass the issue of immunities.

On the other side of the coin, influenced by the Arrest Warrant decision, these proposals are grounded on the premise that, because heads of state, heads of government, and foreign ministers enjoy absolute immunity and inviolability from foreign jurisdiction, their prosecution in foreign national courts is absolutely barred.

This idea does not pass muster. That is mainly because the decision of the ICJ in the Arrest Warrant did not consider the effects of the laws of war on the question of immunity and the authoritative position about the same question set out in the judgment of the International Military Tribunal (IMT) in the aftermath of the Second World War. Indeed, a striking aspect arising from the decision of the majority in the Arrest Warrant case, and the vast array of declarations and opinions appended by its different judges, is that not even one amongst the sixteen judges considered those effects and judgment.

The IMT was established for the punishment of the major war criminals of the European Axis, i.e. for the trial and punishment of German high officials who perpetrated aggression, war crimes, and crimes against humanity “in connection” with the Second World War. At the end of the trial, the IMT issued one of the most important judgments in the history of international law. On the question of immunity, the position of the IMT consisted of the following:

The principle of International Law, which under certain circumstances protects the representatives of a State, cannot be applied to acts which are condemned as criminal by International Law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings […]. On the other hand […] he who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorizing action moves outside its competence under International Law (emphasis added).

Often, scholars view this statement of the IMT as if it only concerned immunities ratione materiae and international courts (for example, here). Such view is misguided.

The first sentence of the statement highlights that the protections of international law for representatives of the states are not absolute, i.e. immunities and inviolabilities apply “under certain circumstances”, but not in all circumstances. Particularly, said protections are set aside with regard to acts “which are condemned as criminal by International Law”. As the authors of the History of the United Nations War Crimes Commission noted, a remarkable feature of the IMT’s judgment is that the irrelevance of the doctrines of heads of state and state administrators was pronounced with regard to the whole field of international crimes covered by the Nuremberg Charter. According to the Nuremberg Charter, the field of international crimes consisted of three sets of criminal acts. First, acts of planning, preparation, initiation or waging of an international armed conflict in violation of international law (aggression or crimes against peace). Second, violations of the laws or customs of war perpetrated during an international armed conflict (war crimes). Third, inhumane acts perpetrated in the execution of, or in connection with, aggression or war crimes, i.e. linked to an international armed conflict (crimes against humanity).

 As to the second sentence, the expression “appropriate proceedings” encompasses both national and international proceedings. For the IMT, the allies “have done together what any one of them might have done singly”. Accordingly, its words mean that a prosecution, arrest, or punishment of a high official of a state (or any other person) on account of international crimes can be carried out by both national and international authorities. Nothing in its judgment suggests that a national prosecution, arrest or punishment would be inappropriate or that immunity or inviolability constituted an obstacle to such national undertakings. Also, the allusion in the second sentence to an “official position” naturally covers the personal immunities to which a person is entitled because of the very fact that he or she holds such an official position. An argument to the effect that the words of the IMT only cover former officials or functional immunities would be contrary to such words.

In the third sentence, the IMT alludes to the “laws of war”. The IMT uses this expression lato sensu, i.e. laws that cover aggression, war crimes stricto sensu, and crimes against humanity. This is particularly manifest in the following excerpt:

The charges in the Indictment that the defendants planned and waged aggressive wars are charges of the utmost gravity. War is essentially an evil thing. Its consequences are not confined to the belligerent States alone, but affect the whole world. To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole (emphasis added).

For the IMT, aggression, war crimes stricto sensu, and crimes against humanity are part of the larger genus of war crimes, and the ones who commit such crimes in violation of “the laws of war cannot obtain immunity”. These words are incompatible with a half-century later argument that personal immunities were not a bar for the IMT because of an “implicit” national waiver of immunities. Far from implying some sort of national waiver of immunity, the position of the IMT fleshes out what the international law of war prescribes on the matter.

Indeed, viewed in such a war setting, the position of the IMT was uncontroversial. First, it was in line with the position adopted in the aftermath of the First World War in the report of the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties:

An argument has been raised […] based upon the alleged immunity and in particular the alleged inviolability, of a sovereign of a state. But this privilege, where it is recognized, is one of practical expedience in municipal law, and is not fundamental. However, even if, in some countries, a sovereign is exempt from being prosecuted in a national court of his own country the position from an international point of view is quite different” (emphasis added).

Second, it was also in line with influential analyses of the problem of war criminals by prominent jurists (here and here). As Quincy Wright has put it, the non-immunity rationale with regard to the crimes covered by the Nuremberg Charter is related to the nature of war:

The principle of the independence and equality of states […] is suspended in relations of opposing belligerents to each other by the very nature of war. Each is seeking to impose his will on the other and is free to use measures of coercion permitted by the law of war in order to bring about a complete submission of the enemy to his will. Thus the reasons which accord immunity to chiefs of state in the courts of another state in times of peace do not apply to actions against an enemy ruler for breaches of the law of war […].

Third, it was also attuned with a historical fact that is rarely mentioned in the immunity debate that took place in connection with the “Al-Bashir saga”, namely the fact that Hitler was indicted during the Second World War while he was the sitting head of state of Germany. In March 1945, the United Nations War Crimes Commission constituted by sixteen states “endorsed at least seven separate indictments” against him, which were based upon national “formal charges” brought by the Czechs.

Finally, the IMT’s stance was grounded in simple common sense related with the logics of both the jus ad bellum and the jus in bello. From a jus ad bellum perspective, even if – before the Nuremberg Charter – aggression was not a crime under international law, this did not mean that heads of state were in the past entitled to any sort of immunity or inviolability shielding them from being prosecuted, arrested or punished in foreign countries on account of their de facto aggressive war acts. As a British Committee of Inquiry set up in the aftermath of the First World War had put in 1919,

The result of an examination of the authorities, if such can be said to exist, would seem to be that there is no rule or usage exempting from criminal jurisdiction sovereigns who have invaded the territory of another sovereign.

Indeed, it is illogical to argue that a head of state, who is responsible for the initiation and waging of a war against another country, is entitled to immunity or inviolability vis-à-vis the sovereign jurisdiction of the invaded country.

As to inviolability, the illogicality is particularly manifest if the head of state physically participates in the invasion. In such a case, it is difficult (if not impossible) to argue that the country victim of aggression cannot, on its own territory, arrest, detain, attack or otherwise use force against said head of state. This necessarily means that a head of state in this type of scenario is not entitled to inviolability. However, the absence of inviolability does not confine itself to the territory of the aggressed country. It is also difficult (if not impossible) to argue that international law prohibits the use of lethal force against the  head of an aggressor state on his or her own country as a means of self-defense by the victim state.

As to immunity, the idea that international law prohibits the invaded country from prosecuting or issuing a warrant for the capture of said head of state does not square with a simple notion, which flows from the very concept of sovereignty. It would be preposterous to prohibit the victim state from exercising jurisdiction over all aggressive war acts of death, injury and destruction perpetrated on its own sovereign territory. That is so irrespective of whether the person who perpetrates such acts is a mere soldier or a head of state.

In sum, as I put forward elsewhere,

[T]o argue that states can deploy all forceful and non-forceful measures necessary to repel aggression, except the measure[s] of [issuing an arrest warrant, arresting  or simply] prosecuting the sitting head of state who is perpetrating the very act of aggression, is pure nonsense.

From a jus in bello perspective, the common-sense outcome is the same. A head of state who as commander in chief is responsible for an armed invasion is a combatant and, therefore, a legitimate target according to the rules of war. Not only can he or she be lethally attacked but also, a fortiori, can be merely arrested or detained. This means non-inviolability. Arguably, an aggressor head of state, as any other person involved in an aggressive campaign, cannot be prosecuted with regard to the acts of death, injury and destruction carried out in accordance with the jus in bello. However, if a head of state (or any other person) perpetrates acts of death, injury and destruction in violation of the jus in bello, the laws of war determine that he or she may be subject to prosecution with regard to war crimes. This means non-immunity with regard to such crimes.

All told, the conclusion is inescapable that the position of the IMT constituted a sound rejection of any type of protection ratione personae or ratione materiae for representatives of a state with regard to the three types of war crimes provided for in the Nuremberg Charter. Of course, this conclusion also means that the position of the IMT is at odds with the holding of the ICJ that heads of state enjoy full immunity from foreign jurisdiction and inviolability, and with the widespread view that “it has long been clear that serving heads of state […] possess absolute immunity ratione personae in criminal cases” (emphasis added) (here).

Instead, the position of the IMT supports the view of a minority of scholars who argue that the whole history of international criminal law unequivocally disavows the position adopted by the ICJ in the Arrest Warrant. According to these minority views, the customary law non-immunity principle is all-encompassing, i.e. it covers “any form of immunity for any person, including a sitting or former head of state or other public official” (here); or, “sitting head-of-state immunity with regard to international crimes simply does not exist, be it before national courts or international ones” (here).

However, these views might not sufficiently take into account the effect of the Arrest Warrant in current state practice and opinio iuris. Indeed, today, the predominant practice and opinio of states, and the virtually unanimous view of courts and scholars, is that heads of state undoubtedly enjoy an absolute immunity from foreign jurisdiction and inviolability. Because the terms of the discussion are highly influenced by the Arrest Warrant, and its absolute immunity principle, one should perhaps pay heed to the following warning of Roger O’Keefe:

It would be a mistake to think that there exists among member states of the General Assembly the political will for the acceptance, even by explicit way of progressive development, of an international crime exception to the immunity of state officials, ratione personae or materiae, from foreign criminal jurisdiction.

Thus, short of purely setting aside the immunity and inviolability position put forward in the Arrest Warrant, it might be useful to think about what prompted the ICJ to arrive to a conclusion so at odds with the decision of the IMT. The explanation is simple.

The factual background of the decision of the IMT concerned the perpetration of aggression, war crimes and crimes against humanity by the highest representatives of a state within the context of an international armed conflict. As a result, the IMT necessarily took into account the effects that, in such a scenario, the laws of war have on the immunity issue (“he who violates the laws of war cannot obtain immunity”). Its legal findings necessarily took into account the relation between opposing belligerents during the course of an international armed conflict, and the right of “enemy nations” to prosecute “any enemy” individual guilty of international crimes, “both during peace time and war-time”.    

In contrast, the factual background in the Arrest Warrant was very different. Not only there was no question of enemy nations fighting a war or discussion about how immunity and inviolability operate between opposing belligerents in wartime, but also the ICJ was not even concerned by crimes committed while a person holds an official position; the crimes at stake were committed before the high official in question had taken office.

The contextual distinctiveness of the two decisions provides room for the argument that the IMT decision is the proper precedent to rely upon at least in the scenarios where the laws of war lato sensu come into play within the context of an international armed conflict. From a lex lata perspective, the laws of war that guided the IMT judgment are the lex specialis that set aside the lex generalis “created” by the ICJ.

All of the above means that the national courts of Ukraine may legitimately prosecute Vladimir Putin for any act of aggression, war crimes or crimes against humanity perpetrated “in connection” with the conflict in Ukraine. From a legal perspective, one must acknowledge without qualms the “primary interest” of the domestic courts of Ukraine. Ukraine is the country whose nationals and territory are most directly affected by the whole death, injury, and destruction caused by Russia’s aggression. In that legal sense, its courts have the strongest claim to being the most appropriate forum for the initiation of such proceedings. 

However, it might be wiser – from a political perspective – not to undertake such prosecution in the domestic courts of Ukraine. From this perspective, a prosecution at the ICC for war crimes or crimes against humanity or at a new sufficiently international court or tribunal created for the prosecution of the crime of aggression might be viewed as more legitimate. In that political sense, all proposals mentioned in the beginning of this post merit due consideration. And, of course, if Ukraine itself has the legal power to prosecute the head of state of the Russian Federation, it also has the legal power (and it might have the political interest) to transfer such power to any of those international courts or tribunals.

Photo: A view of the ICC premises. UN Photo/Rick Bajornas. 19 April 2016. The Hague, Netherlands.