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International Law Immunities and the International Criminal Court

  • Dapo Akande (a1)
Extract

The tension between the protection of human rights and the demands of state sovereignty is reflected in the debate on whether state officials should be held responsible in external fora for international crimes committed while in office. This debate involves the interplay between two branches of international law. Firstly, there is the well-established law according immunities to the state and its agents from the jurisdiction of other states (state and diplomatic immunities). This law proceeds from notions of sovereign equality and is aimed at ensuring that states do not unduly interfere with other states and their agents. On the other hand, there are those newer principles of international law that are based on humanitarian values and define certain types of conduct as crimes under international law (international criminal law). One of the challenges in this latter area has been to develop international and national mechanisms by which individuals who commit these crimes may be held responsible. Since states often fail to institute domestic prosecution of their own officials and agents alleged to have committed international crimes, renewed attention has been paid to the possibility of subjecting state agents to prosecution in foreign domestic courts or in international courts. For such prosecution in foreign domestic courts to take place, it will usually have to be shown (1) that those courts have jurisdiction over crimes committed abroad by foreigners against foreigners (i.e..universalorquasi-universal jurisdiction),and (2) that such jurisdiction extends to state agents (i.e., that international law immunities are unavailable). Recent years have seen a significant increase in attempts to institute prosecutions for alleged international crimes in the national courts of states other than that where the acts occurred. However, it has not proved easy to establish the two propositions identified above. Indeed, it has become apparent that the views that states possess universal jurisdiction over international crimes committed abroad and that incumbent and former state officials are subject to foreign domestic prosecution for such crimes are by no means universally held.

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1 For surveys of this body of law, see Denza Eileen, Diplomatic Law (1998); Fox Hazel, The Law of State Immunity (2002) Crawford James, International Law and Foreign Sovereigns: Distinguishing Immune Transactions, 1983 Brit.Y.B. Int’l L. 75 .

2 For surveys of this body of law, see Cassese Antonio, International Criminal Law (2003); Cassese Antonio, International Criminal Law, in International Law 720 (Evans Malcolm D. ed., 2003).

3 For surveys of domestic prosecutions relying on universal jurisdiction, see Reydams Luc, Universal Jurisdiction: International and Municipal Legal Perspectives (2003); Committee on International Human Rights Law and Practice, Final Report on the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offences, in 69 International Law Association, Conference Report 403, 424–43 (2000), available at <http://www.ila-hq.org/html/layout_committee.htm>.

4 In three recent ICJ proceedings, states have challenged both of these principles. Certain Criminal Proceedings in France (Rep. Congo v. Fr.), Request for Provisional Measures (June 17, 2003), 42 ILM 852 (2003); Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.) (Feb. 14, 2002), 41 ILM 536 (2002) [hereinafter Arrest Warrant]; and Liberia’s application instituting proceedings against Sierra Leone in respect of the indictment by the Special Court for Sierra Leone of the Liberian head of state, ICJ Press Release 2003/26 (Aug. 5, 2003), available at <http://www.icj-cij.org>.

5 By May 3, 2004, ninety-four states were parties to the ICC Statute. See <http://www.icc-cpi.int/statesparues.html>.

6 Rome Statute of the International Criminal Court, July 17, 1998, Arts. 17–20, UN Doc. A/CONF.183/9*, 37 ILM 1002 (1998), corrected through Jan. 16, 2002, at <http://www.icc-cpi.int/> [hereinafter ICC Statute]. For an analysis of these provisions, see Holmes John T., Complementarity: National Courts Versus the ICC, in 1 The Rome Statute of the International Criminal Court: A Commentary 667 (Cassese Antonio, Gaeta Paola, & John R. W. D. Jones eds., 2002) [hereinafter The Rome Statute] Kleffner Jann K., The Impact of Complementarity on National Implementation of Substantive International Criminal Law, 1 J. Int’l Crim. Just. 86 (2003).

7 Filartiga v. Pena-lrala, 630 F.2d 876 (2d Cir. 1980), 77 ILR 192.

8 See Stephens Beth & Ratner Michael, International Human Rights Litigation in United States Courts (1996); Anne-Marie Burley, The Alien Tort Claims Statute and the Judiciary Act of 1789: A Badge of Honor, 83 AJIL 461 (1997); Roger O’Keefe, Civil Actions in US Courts in Respect of Human Rights Abuses Committed Abroad: Would the World’s OppressorsBeWisetoStayatHome? 9 Afr.J. Int’l & Comp. L. 15 (1997).

9 See, e.g., Al-Adsani v. Kuwait, 107 ILR 536 (C.A. 1996) (Eng.)Jones v. Ministry of the Interior (Kingdom of Saudi Arabia), No. HQ02X01805 (Q.B.July 30, 2003), at<http://www.redress.org/Briefs/Judgment.pdf>.

10 See generally FOX, supra note 1, at 352–60 & ch. 10; Tomonori Mizushima, The Individual as Beneficiary of State Immunity: Problems of the Attribution of Ultra Vires Conduct, 29 Denv. J. Int’l L. & Pol’y 261 (2001); Watts Arthur, The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers, 247 Recueil des Cours 13 (1994 III); Whomersley C. A., Some Reflections on the Immunity of Individuals for Official Acts, 41 Int’l & Comp. L. Q. 848 (1992); Wickremasinghe Chanaka, Immunities Enjoyed by Officials of States and International Organizations, in International Law, supra note 2, at 387 .

11 Vienna Convention on Diplomatic Relations, Apr. 18, 1961, Arts. 29, 31, 23 UST 3227, 500 UNTS 95 [hereinafter VCDR].

12 The issues considered in this part are more extensively explored by this writer elsewhere. See Akande Dapo, International Immunities in Respect of Human Rights Violations and International Crimes: Why the Difference Between Civil and Criminal Proceedings? (manuscript under preparation).

13 See Watts, supra note 10.

14 VCDR, supra note 11, Arts. 29 & 31; United Nations Convention on Special Missions, Dec. 8, 1969, 1400 UNTS 231.

15 See Wickremasinghe, supranote 10, at 389.

16 See Tunks Michael A., Diplomats or Defendants’? Defining the Future of Head-of-State Immunity, 52 Duke L.J. 651, 656 (2002), who states:

Head-of-state immunity allows a nation’s leader to engage in his official duties, including travel to foreign countries, without fearing arrest, detention, or other treatment inconsistent with his role as the head of a sovereign state [footnote omitted]. Without the guarantee that they will not be subjected to trial in foreign courts, heads of state may simply choose to stay at home rather than assume the risks of engaging in international diplomacy abroad.

The same may be said of others entided to immunity ratione personae.

17 See Warrant Arrest, supra note 4, Joint Separate Opinion of Judges Higgins, Kooijmans & Buergenthal, para. 75 (stating that “immunities are granted to high State officials to guarantee the proper functioning of the network of mutual inter-State relations, which is of paramount importance for a well-ordered and harmonious international system”); see also FOX, supra note 1, at 427.

18 United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Merits, 1980 ICJ Rep. 3, para. 91 (May 24) (quoting United States Diplomatic and Consular Staff in Tehran, Provisional Measures, 1979 ICJ Rep. 7, para. 38 (Dec. 15)).

19 Arrest Warrant, supra note 4, para. 54; Fox, supra note 1, at 441. See also the treaty provisions cited supra note 14.

20 Arrest Warrant, supra note 4, paras. 54–55.

21 Id., paras. 55, 70–71.

22 Id., para. 55.

23 Id., para. 58.

24 See generally Cassese, International Criminal Law, supra note 2, at 271–73; Fox Hazel, The Resolution of the Institute of International Law on the Immunities of Heads of State and Government, 51 Int’l & Comp. L.Q. 119 (2002); Gaeta Paola, Official Capacities and Immunities, in The Rome Statute, supra note 6, at 975, 98389 ; Salvatore Zappalà, Do Heads of State in Office Enjoy Immunity from Jurisdiction for International Crimes ? The Ghaddafi Case Before the French Cour de Cassation, 12 Eur. J. Int’l L. 595 (2001).

25 See Tunks, supra note 16, at 678–79.

26 See Ghaddafi case, No. 1414 (Cass. crim. 2001) (Fr.), 125 ILR 456 (criminal proceedings against Col. Muammar el-Qaddafi, the Libyan head of state, relating to bombing of French airliner dismissed on grounds of immunity); Castro case, No. 1999/2723, Order (Audiencia nacional Mar. 4, 1999) (Spain), cited in Cassese, International Criminal Law, supra note 2, at 272 n.20 (criminal proceedings against Fidel Castro, the Cuban head of state, dismissed on grounds of immunity); H.SA et al. v. SA, Cass. 2e civ., Feb. 12, 2003, No. P.02.1139.F (Belg.), translated in 42 ILM 596 (2003) (criminal proceedings against Israeli prime minister Ariel Sharon alleging crimes against humanity and war crimes dismissed on grounds of immunity); Regina v. Bow Street Stipendiary Magistrate, ex parte Pinochet (No. 3), [1999] 2 All E.R. 97, 126–27, 149, 179, 189 (H.L.) (per Goff, Hope, Millett, Phillips, LJJ.) (stating that serving heads of state are immune from criminal jurisdiction of foreign states); Plaintiffs A, B, C, D, E, F v. Jiang Zemin, 282 F.Supp.2d 875 (N.D. 111. 2003) (civil proceedings against Chinese president Jiang Zemin alleging torture, genocide, and other human rights violations dismissed on grounds of immunity); Tachiona v. Mugabe, 169 F.Supp.2d 259 (S.D.N.Y. 2001) (civil proceedings against Zimbabwean president Robert Mugabe alleging torture dismissed on grounds of immunity). In January and February 2004, British district judges rejected, on grounds of immunity, applications for warrants for the arrest of Mugabe, the head of state of Zimbabwe, and General Shaul Mofaz, the Israeli minister of defense, regarding allegations of torture and war crimes, respectively Application for Arrest Warrant Against General Shaul Mofaz (Bow St. Mag. Ct. Feb. 12, 2004) (per Pratt, Dist. J.), reprinted in 53 Int’l & Comp. L.Q. 769, 771; Mugabe case (Bow St. Mag. Ct Jan. 14, 2004) (per Workman, Sr. Dist. J.), reprinted in id. at 770.

27 In 2002 the United States government issued a suggestion of immunity in a case brought against the then president of China alleging torture, genocide, and other human rights violations. See Plaintiffs A, B, C, D, E, F v. Jiang Zemin, 282 F.Supp.2d 875 (N.D. 111. 2003); Murphy Sean D., Contemporary Practice of the United States, 97 AJIL 97477 (2003). In August 2003, Saied Baghban, an Iranian diplomat accused of having been involved in the bombing of a Jewish center in Argentina was briefly detained in Belgium but then released on grounds of diplomatic immunity. Beeston Richard, Iran Threatens to Hit Back over Diplomat’s Arrest, Times (London), Aug. 28, 2003, at 17 . Similarly, despite accusations that the Israeli ambassador to Denmark was complicit in torture while he was head of Shin Bet, the Israeli Intelligence Service, Denmark has maintained that he is entitled to diplomatic immunity from Danish criminal jurisdiction. Osborn Andrew, Danish Protests Greet Israeli Envoy, Guardian, Aug. 16, 2001, at 13 . Likewise, the authorities of the United Kingdom took the view that a serving Israeli defense minister was entitled to immunity from arrest despite the allegation that he had been responsible for war crimes in the West Bank. McGreal Chris, Sharon’s Ally Safe from Arrest in Britain, Guardian, Feb. 11, 2004, at 19 .

28 Tunks, supra note 16, at 663 (stating that “no nation has yet gone so far as to actually pass judgment against a sitting head of state”). United States v. Noriega, 117 F.3d 1206 (11th Cir. 1997), is the only case that can be construed as denying immunity to a head of state. However, immunity was not accorded in this case on the ground that the U.S. government had never recognized General Noriega (the de facto ruler of Panama) as head of state.

29 Arrest Warrant, supra note 4, para. 51 (emphasis added). The use of the words “such as” suggests that the list of senior officials entitled to this immunity is not closed.

30 See Institut de Droit International, Resolution on Immunities from Jurisdiction and Execution of Heads of State and of Government in International Law, Arts. 1, 2, 15 (Aug. 26, 2001), reprinted in State Immunity: Selected Materials and Commentary 212 (Andrew Dickinson, Rae Lindsay, & James P. Loonam eds., 2004), available at <http://www.idi-iil.org/idiE/resolutionsE/2001_van_02_en.PDF>; Fox, supra note 1, at 437, 441; Watts, supranote 10, at 54, 106–07.

31 VCDR, supra note 11, Arts. 29, 31.

32 Watts, supra note 10, at 106–08.

33 Arrest Warrant, supra note 4, para. 53.

34 In Mofaz, supra note 26, 53 Int’l & Comp. L.Q. at 773, District Judge C. L. Pratt stated:

The function of various Ministers will vary enormously depending upon their sphere of responsibility. I would think it very unlikely that ministerial appointments such as Home Secretary, Employment Minister, Environment Minister, Culture Media and Sports Minister would automatically acquire a label of [S]tate immunity. However, I do believe that the Defence Minister may be a different matter.

However, in modern international affairs, it is difficult to see that the ministers listed above would not be involved in travel on behalf of the state.

35 See Convention on the Privileges and Immunities of the United Nations, Feb. 13, 1946, Art. IV, §11, 21 UST 1418, 1 UNTS 15, 90 UNTS 327 (corrigendum to vol. 1) [hereinafter UN Immunities Convention]; General Convention on the Privileges and Immunities of the Organization of African Unity, Oct. 25, 1965, Art. V, 1000 UNTS 393, available at <http://www.dfa.gov.za/foreign/Multilateral/africa/treaties/oaupriv.htm>.

36 See UN Convention on Special Missions, supra note 14, Arts. 29, 31. Whether these provisions represent customary international law has been doubted. See United States v. Sissoko, 121 ILR 599, 1997 U.S. Dist. lexis 22115 (S.D. Fla. 1997); Wickremasinghe, supra note 10, at 402.

37 See, e.g., Propend Fin. Pty Ltd v. Sing (C.A. 1997) (Eng.), 111 ILR 611; Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095 (9th Cir. 1990). For other cases, see Tomonori, supra note 10, at 269–73. For a consideration of U.S. and UK law on the matter, see FOX, supra note 1, at 352–60; Whomersley, supra note 10.

38 Wickremasinghe, supranote 10, at 403; see also VCDR, supra note 11, Art. 39(2) (in relation to former diplomats) ; Vienna Convention on Consular Relations, Art. 24, 1963, Art. 43 (1), 21 UST 77, 596 UNTS 261 [hereinafter VCCR] (in relation to consular officials). Some have doubted whether the immunity ratione materiae applicable to former diplomats is of the same nature as the general immunity applicable to other official acts of other state officials. For example, Dinstein Yoram, Diplomatic Immunity from Jurisdiction Ratione Materiae, 15 Int’l & Comp. L.Q. 76, 86–89 (1966), argues that diplomatic immunity ratione materiae is broader than that accorded to other state officials. Tomonori, supra note 10, at 281, questions whether other state officials possess immunity ratione materiae in criminal proceedings and in relation to ultra vires acts.

39 See Van Panhuys H. F., In the Borderland Between the Act of State Doctrine and Questions of Jurisdictional Immunities, 13 Int’l & Comp. L.Q. 1193, 1201 (1964); see also UK State Immunity Act, 1978, ch. 33, §14(2); Kuwait Airways Corp. v. Iraq Airways Co., [1995] 3 All E.R. 694 (H.L.); Walker v. Bank of New York, [1994] 16 O.R.3d 504 (Ct. App.) (Can.); Twycross v. Dreyfus, [1877] 5 Ch. D. 605 (C.A.) (Eng.).

40 For the suggestion that the paucity of domestic criminal cases recognizing the immunity ratione materiae of state officials makes it difficult to prove that this type of immunity applies in criminal proceedings, see Tomonori, supra note 10, at 262.

41 The most well-known case in which this type of immunity was asserted with respect to criminal proceedings is McLeods case. See Jennings R. Y., The Caroline and McLeod Cases, 32 AJIL 82, 92 (1938). While both the British and U.S. governments accepted that there was immunity under international law from both civil and criminal processes, McLeod was actually subjected to trial owing to the inability of the U.S. federal government to interfere with the prosecution. However, in the Rainbow Warrior case, 74 ILR 241 (arb. 1987), the French government’s assertion that military officers should not be tried in New Zealand once France had accepted international responsibility was rejected by New Zealand. See also the few cases cited by Tomonori, supra note 10, at 262.

42 See Cassese, International Criminal Law, supra note 2, at 266; Fox, supra note 1, at 510–13. In Attorney General of Israel v. Eichmann, 36 ILR 277, 308–09 (Sup. Ct. 1962), the Israeli Supreme Court stated:

The theory of “Act of State” means that the act performed by a person as an organ of the State—whether he was Head of the State or a responsible official acting on the Government’s orders—must be regarded as an act of the State alone. It follows that only the latter bears responsibility therefor, and it also follows that another State has no right to punish the person who committed the act, save with the consent of the State whose mission he performed. Were it not so, the first State would be interfering in the internal affairs of the second, which is contrary to the conception of the equality of States based on their sovereignty.

However, the Court was not prepared to accept that this theory applied in all cases. In Prosecutor v. Blaškić, Objection to Issue of Subpoenae duces tecum, No. IT–95–14–AR108 bis (Oct. 29, 1997), 110 ILR609, 707, para. 38, the appeals chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) stated that

[state] officials are mere instruments of a State and their official action can only be attributed to the State. They cannot be the subject of sanctions or penalties for conduct that is not private but undertaken on behalf of the State. In other words, State officials cannot suffer the consequences of wrongful acts which are not attributable to them personally but to the State on whose behalf they act: they enjoy so called “functional immunity”. This is a well-established rule of customary international law going back to the eighteenth and nineteenth centuries, restated many times since.

See also the correspondence in the McLeod case, supra note 41.

43 See Fox, supra note 1, at 353–54; Wickremasinghe, supra note 10, at 403; see also Propend Fin. Pty Ltd v. Sing, 111 ILR 611, 669 (C.A. 1997) (Eng.); Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095, 1101 (9th Cir. 1990); Zoernsch v. Waldock, [1964] 1 W.L.R. 675, 692 (C.A., per Diplock, L.J.).

44 See Cassese Antonio, When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case, 13 Eur. J. Int’l L. 853, 870–71 (2002) (referring to cases in which British, Dutch, French, Israeli, Italian, Mexican, Polish, Spanish, and U.S. courts have entertained proceedings against foreign state officials [particularly foreign military officers] with respect to war crimes, crimes against humanity, and genocide).

45 See, e.g., Eichmann, 36 ILR 5, 44–48 (Dist. Ct. Jerusalem 1961); id. at 308–11 (Sup. Ct. 1962); & Pinochet (No. 3), supra note 26.

46 See Pinochet (No. 3), supra note 26, at 113, 166 (H.L., per Browne Wilkinson, Hutton, L.JJ.); Regina v. Bow Street Stipendiary Magistrate, ex Parte Pinochet (No. 1), [1998] 4 A11 E.R. 897, 939–40, 945–46 (H.L., per Nicholls, Steyn, L.JJ.). It is amazing that these judges could have reached this conclusion about torture, which under Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Dec. 10, 1984, 1465 UNTS 85 [hereinafter Torture Convention], is limited to acts “of a public official or other person acting in an official capacity” (emphasis added). See also Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, Arrest Warrant, supra note 4, para. 85 (citing Bouterse case, para. 42 (Hof Amsterdam Nov. 20, 2000)). A similar position has been taken in a number of U.S. civil cases under the Alien Tort Claims Act. See, e.g., In re Estate of Ferdinand Marcos, 25 F.3d 1467, 1469–72 (9th Cir. 1994); Cabiri v. Assasie-Gyimah, 921 F.Supp. 1189, 1197–98 (S.D.N.Y. 1996); Xuncax v. Gramajo, 886 F.Supp. 162, 175 (D. Mass. 1995); see also Orakhelashvili Alexander, State Immunity and International Public Order, 2002 Ger.Y.B. Int’l L. 227, 238–39; Tomonori, supra note 10, at 283–86; Tunks, supra note 16, at 659–60.

47 See Bianchi Andrea, Immunity Versus Human Rights: The Pinochet Case, 10 Eur.J. Int’l L. 237, 265 (1999) (“As a matter of international law, there is no doubt that jus cogens norms, because of their higher status, must prevail over other international rules, includingjurisdictional immunities.”); see also Byers Michael, Comment on Al-Adsani v. Kuwait, 1996 Brit. Y.B. Int’l L. 537, 539–40; Orakhelashvili Alexander, State Immunity in National and International Law: Three Recent Cases Before the European Court of Human Rights, 15 Leiden J. Int’l L. 703, 712–13 (2002); Orakhelashvili Alexander, Case Report: Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), in 96 AJIL 677 (2002); Orakhelashvili, supra note 46, at 255; Reimann Mathias, A Human Rights Exception to Sovereign Immunity: Some Thoughts on Princz v. Federal Republic of Germany, 16 Mich.J. Int’l L. 403, 42123 (1995).

48 Akande, supra note 12 .

49 Arrest Warrant, supra note 4, para. 58; see quote in text at note 23 supra.

50 Al-Adsani v. United Kingdom, 2001–XI Eur. Ct. H.R., 123 ILR 24, para. 61, in which the Court held, by 9 to 8:

Notwithstanding the special character of the prohibition of torture in international law, the Court is unable to discern in the international instruments, judicial authorities or other materials before it any firm basis for concluding that, as a matter of international law, a State no longer enjoys immunity from civil suit in the courts of another State where acts of torture are alleged.

51 Distomo Massacre Case, No. BGH–112R 245/98 (Greek Citizens v. FRG) (Fed. Sup. Ct. June 26, 2003) (FRG), translated in 42 ILM 1030, 1033–34 (2003); Germany v. Margellos, No. 6/17–9-2002 (Spec. Sup. Ct. Sept. 17, 2002) (Greece); Al-Adsani v. Kuwait, 107 ILR 536 (CA 1996) (Eng.); Smith v. Libya, 101 F.3d 239 (2d Cir. 1996); Princz v. Federal Republic of Germany, 26 F.3d 1166 (D.C. Cir. 1994), 103 ILR 594; Persinger v. Islamic Republic of Iran, 729 F.2d 835 (D.C. Cir. 1984); Sampson v. Federal Republic of Germany, 975 F.Supp. 1108 (N.D. 111. 1997); Bouzari v. Iran, 124 ILR 427, 2002 Ont. Sup. C.J. LEXIS 701 (Ont. Sup. Ct.).

52 See text supra at notes 42–43.

53 See Cassese, International Criminal Law, supra note 2, at 267; Cassese, supra note 44, at 870; Gaeta, supra note 24, at 981–83; Wirth Steffen, Immunity for Core Crimes? The ICJ’s Judgment in the Congo v. Belgium Case, 13 Eur. J. Int’l L. 877, 891 (2002); Zappalà, supra note 24, at 601–05.

54 See In re Goering, 13 ILR 203, 221 (Int’l Mil. Trib. 1946). Provisions stating that official capacity does not amount to a substantive defense are included in the statutes of several international criminal tribunals. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, Art. 7, 59 Stat. 1544, 82 UNTS 279; Charter of the International Military Tribunal for the Far East, Jan. 19 & Apr. 26, 1946, Art 6, TIAS No. 1589, 4 Bevans 20; Statute of the International Criminal Tribunal for the Former Yugoslavia, UN Doc. S/25704, annex, Art 7(2), reprinted in 32 ILM 1192 (1993); Statute of the International Criminal Tribunal for Rwanda, SC Res. 955, annex, UN SCOR, 49th Sess., Res. & Dec, at 15, Art. 6(2), UN Doc. S/INF/50 (1994), reprinted in 33 ILM 1602 (1994); ICC Statute, supra note 6, Art. 27(1); Statute of the Special Court for Leone Sierra, as amended Jan. 16, 2002, Art. 6(2), available at <http://www.specialcourt.org/documents/Statute.html>.

55 Pinochet (No. 3), supranote 26, at 114, 169–70, 178–79, 190 (per Browne Wilkinson, Saville, Millett, Phillips, L.JJ.).

56 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, Art. 49, 6 UST 3114, 75 UNTS 31; Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, Art. 50, 6 UST 3217, 75 UNTS 85; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, Art. 129, 6 UST 3316, 75 UNTS 135; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Art 146, 6 UST 3516, 75 UNTS 287; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, Art. 85(1), 1125 UNTS 609.

57 See Akande, supra note 12, for fuller development of the arguments contained in this paragraph.

58 See Gaeta, supra note 24, at 991, who states:

Strictly speaking, under international law individuals are only entitled to enjoy personal immunities vis-à-vis the authorities of the State where they are authorized to discharge official functions (the ‘receiving or territorial State’). Clearly, these immunities cannot be relied upon before the ICC; hence they cannot preclude the exercise of the Court’s jurisdiction.

59 Arrest Warrant, supra note 4, para. 61.

60 The Special Court for Sierra Leone is an international tribunal created under a treaty between the United Nations and Sierra Leone to prosecute persons that committed serious international crimes during the Sierra Leonean civil war. The agreement establishing the Court and its Statute are available online at <http://www.sc-sl.org>. Unlike the ICTY and the ICTR, the Court was not established by Security Council resolution and cannot bind all UN members. While Security Council Resolution 1315 (Aug. 14, 2000), 40 ILM 248 (2000), encouraged the establishment of the Special Court, it is not the legal basis for its creation. See Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915, para. 9. For analysis of the Court, see Cryer Robert, A ‘Special Court’ for Sierra Leone? 50 Int’l & Comp. L.Q. 435 (2001); John R. W. D. Jones, Claire Carlton-Hanciles, Haddijatou Kah-Jallow, Scratch Sam, & Yillah Ibrahim, The Special Court for Sierra Leone?, 2 J. Int’l Crim. Just. 211 (2004).

61 Prosecutor v. Charles Taylor, Immunity from Jurisdiction, No. SCSL–03–01–I (May 31, 2004). On March 7, 2003, the prosecutor issued an indictment charging Charles Taylor (then the head of state of Liberia) with responsibility for crimes against humanity and war crimes committed on the territory of neighboring Sierra Leone during the civil war in that state. In June 2003, the prosecutor sought the arrest of Taylor on the basis of the indictment while Taylor was in Ghana for peace talks with Liberian rebels. The Ghanaian government declined to arrest him. See Welsh Paul, Liberian Leader’s Strange Day in Ghana, BBC News, at <http://news.bbc.co.uk/l/hi/world/africa/2965110.stm> (last modified June 5, 2003). After Taylor stepped down from power in Liberia, he was allowed to live in exile in Nigeria. See Nigeria Defends Taylor Exile, BBC News, at <http://news.bbc.co.uk/l/hi/world/africa/3142659.stm> (last modified Aug. 12, 2003).

62 Oral hearings relating to the defense motion to quash the indictment against Taylor were held on October 31, and November 1, 2003. For a summary of these proceedings, see No Peace Without Justice, Reports on Appeal Hearings, at <http://www.specialcouit.org/documents/WhatHappening/ReportsOnAppealHearings.html> (visited May 11, 2004).

63 Prosecutor v. Charles Taylor, supra note 61.

64 See provisions cited supra note 54.

65 Prosecutor v. Charles Taylor, supra note 61, para. 52. The Court’s judgment drew from and approved the submissions of amici curiae Philippe Sands and Alison McDonald, and Diane Orentlicher. The former argued that

[i]nternational practise and a majority of academic commentary supports the view that . . . an international criminal court or tribunal (whether or not it has been established under Chapter VII of the UN Charter) may exercise jurisdiction over a serving head of State and that such person is not entitled to claim immunity under customary international law in respect of international crimes.

Prosecutor v. Charles Taylor (No. SCSL–2003–01–I), Submissions of the Amicus Curiae on Head of State Immunity, paras. 56(3), 118(3), available at <http://www.icc-cpi.int/library/organs/otp/Sands.pdf>. This submission (in para. 51) cites an earlier draft of the present article as one of the works taking the opposite view that international immunities might be available before international tribunals.

66 See Fox, supra note 1, at 431; Gaeta, supra note 24, at 991.

67 See provisions cited supra note 54.

68 Because the decision was taken not to prosecute the Japanese emperor after World War II, Article 6 of the Charter of the Tokyo Tribunal (unlike Article 7 of the Nuremberg Tribunal Agreement), both supra note 54, does not explicitly provide that a person’s position as head of state may not be relied on as exempting individual responsibility. Also, while Article 27 of the ICC Statute, supra note 6, denies immunity, Article 98 of the Statute preserves it for certain persons.

69 UN Charter Art. 25.

70 It may be asked whether the Security Council can override the immunities normally accruing to representatives of states that are not members of the United Nations. This question may have been raised in 1999 when the ICTY indicted the then head of state of the Federal Republic of Yugoslavia (FRY)—Slobodan Milošević—and other senior members of the FRY government. At the time of the indictment, there was some doubt as to whether the FRY was a member of the United Nations. To the extent that the FRY was not a UN member, an attempt by other states to execute the indictment and arrest warrant would arguably have engaged the legal responsibility of the arresting state and/or even mat of the United Nations. By the time Milošević was handed over to the ICTY in June 2001, the FRY had been admitted to the United Nations (in 2000). In any event, surrender by the FRY would have constituted a waiver of any available immunities. For analysis of the status of the FRY in the United Nations prior to 2000, see Akande Dapo, The Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits, 1 J. Int’l Crim. Just. 618, 62831 (2003); Blum Yehuda Z., UN Membership of the “New” Yugoslavia: Continuity or Break? 86 AJIL 830 (1992); Craven Matthew, The Genocide Case, the Law of Treaties and State Succession, 1997 Brit. Y.B. Int’l L. 127, 13135 ; Scharf Michael P., Musical Chairs: The Dissolution of States and Membership in the United Nations, 28 Cornell Int’l L.J. 29 (1995); Wood Michael, Participation of Former Yugoslav States in the United Nations and in Multilateral Treaties, 1997 Y.B. UN L. 231, 24151 .

71 Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Art. 34, 1155 UNTS 331 [hereinafter VCLT].

72 See Liberia’s challenge at the ICJ to the indictment by the Special Court for Sierra Leone of the Liberian head of state, ICJ Press Release 2003/26, supra note 4. See also Cesare P. R, Romano & André Nollkaemper, The Arrest Warrant Against the Liberian President, Charles Taylor, ASIL Insights, June 2003, available at <http://www.asil.org/insights/insigh110.htm>

73 Submissions of the Amicus Curiae on Head of State Immunity, supra note 65, para. 78; see also Tunks, supra note 16, at 665 n.75 (noting that the ICJ’s statement in the Arrest Warrant case that immunity does not exist before international tribunals only holds true with respect to officials whose home country has assented to the jurisdiction of that tribunal.” [N]o other country hasjurisdiction over a third party’s head of state, and, consequently, no two states (or group of states) may agree by treaty to waive the immunity of a third party’s head of state without that other nation’s consent”).

74 See supra note 65 and corresponding text.

75 Prosecutor v. Blaskic, supra note 42, paras. 38–43.

76 Id., para. 41.

77 Prosecutor v. Krstić, Decision on Application for Subpoenas, No. IT–98–33–A, para. 26 (July 1, 2003), available at <http://www.un.org/icty/Krstić/Appeal/decision-e/030701.htm>

78 The appeals chamber held in Krstić that while state officials could not be compelled to produce a document in their possession in their official capacity, they could be compelled to give evidence of what they had seen or heard in the course of their official functions. Id., para. 27.

79 Judge Shahabuddeen states in his dissenting opinion in Krstić.

In my view, . . . there is no substance in the suggested automaticity of disappearance of the immunity just because of the establishment of international criminal courts. . . .

. . . International criminal courts are established by States acting together, whether directly or indirectly as in the case of the Tribunal, which was established by the Security Council on behalf of States members of the United Nations. There is no basis for suggesting that by merely acting together to establish such a court States signify an intention to waive their individual functional immunities. A presumption of continuance of their immunities as these exist under international law is only offset where some element in the decision to establish such a court shows that they agreed otherwise.

Id., Dissenting Opinion of Judge Shahabuddeen, paras. 11–12.

80 See supra note 54.

81 Fox, supra note 1, at 429–30.

82 See Arrest Warrant, supra note 4, para. 58; Cassese, International Criminal Law, supra note 2, at 267; Gaeta, supra note 24, at 981–82.

83 See text supra at note 42.

84 States parties have an obligation to cooperate with the ICC with regard to the arrest and surrender of wanted persons. ICC Statute, supra note 6, Arts. 86, 89.

85 See Broomhall Bruce, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law 13941 (2003); Gaeta, supra note 24, at 996–1000. As a result of the waiver of national law immunities in Article 27(2), some states parties (such as France) have been obliged to amend the provisions of their constitutions that grant immunity to heads of state or government. See Re Treaty Establishing the International Criminal Court, 125 ILR 442 (Cons, const. Jan. 22, 1999) (Fr.).

86 In addition, Article 98(2) of the ICC Statute, supra note 6, provides:

The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.

87 Broomhall, supra note 85, at 141.

88 The risk of this happening is quite high, since the principle of complementarity adopted in the ICC Statute means that the ICC will exercise its jurisdiction only when the national state has genuinely failed to exercise its own jurisdiction in the case. See id. at 143–44.

89 ICC Statute, supra note 6, Art. 12 (2) (a) (providing for ICC jurisdiction with respect to crimes committed on the territory of an ICC party). This writer and others have argued that states are legally entitled to create, by treaty, an international tribunal with criminal jurisdiction over nationals of nonparties. Akande, supra note 70; Danilenko Gennady M., ICC Statute and Third States, in 2 The Rome Statute of the International Criminal Court: A Commentary 1871, 189197 (Cassese Antonio, Gaeta Paola, & John R. W. D. Jones eds., 2002) Paust Jordan J., The Reach of ICC Jurisdiction over Non-Signatory Nationals, 33 Vand. J. Transnat’l L. 1 (2000); Scharf Michael P., The ICC’s Jurisdiction over the Nationals of Non-Party States: A Critique of the U.S. Position, 64 L. & Contemp. Probs. 67 (2001). The United States and others have taken the contrary view and argued that the exercise of ICC jurisdiction over nationals of nonparties is illegitimate and even unlawful. Morris Madeline, High Crimes and Misconceptions: The ICC and Non-Party States, 64 L. & Contemp. Probs. 13 (2001); Scheffer David J., The United States and the International Criminal Court, 93 AJIL 12, 18 (1999); Wedgwood Ruth, The Irresolution of Rome, 64 L. & Contemp. Probs. 193, 199200 (2001).

90 See text at notes 71–73 supra. While the provisions of the ICC Statute may eventually influence the development of customary law so that international law immunities are never available in cases of international crimes, this is clearly some way from the present position.

91 Part I above contains a discussion of the circumstances in which international law immunities are available when a person is accused of committing an international crime.

92 See Akande, supra note 70.

93 See text at notes 68–78.

94 The arrest warrant issued under Article 58(1) by the ICC’s pretrial chamber after the conclusion of investigations by the prosecutor appears to be preliminary to, and different from, the request for arrest to which Article 98 (1) relates. The latter is provided for in Part 9 of the ICC Statute (specifically Articles 89–92). That there is a difference is implicit in the requirement that a request for arrest under Article 91 must be supported by a copy of the arrest warrant.

95 Arrest Warrant, supra note 4, paras. 70–71. Some of the dissenting judges in diiscase (Judge Oda and Judge ad hoc Van den Wyngaert, paras. 13 & 78–80, respectively, of their dissenting opinions) have argued that the mere issuance or international circulation of an arrest warrant is not a violation of applicable immunities because the receiving state is not obligated to carry it out. See also Submissions of the Amicus Curiae on Head of State Immunity, note 65 supra. This argument is unconvincing because the mere issuance and circulation of the warrant is sufficient, and likely to restrict the ability of the relevant serving senior state officials (such as heads of state, heads of government, and foreign ministers) to travel and carry out their international functions. The very purpose of immunity ratione personae is to permit the senior serving state officials to carry out their international functions.

96 Arguably, the position of diplomatic and consular officials is different since international law accords immunities to these officials only in the state to which they are accredited or through which they transit. VCDR, supra note 11, Arts. 39, 40; VCCR, supra note 38, Arts. 53, 54. Other states have no obligation to refrain from arresting such persons, and the issuance and circulation of an arrest warrant to other states will not violate immunities accorded by international law.

97 Broomhall, supra note 85, at 145; Schabas William A., An Introduction to the International Criminal Court 92 (2001); Gaeta, supra note 24, at 993–96; Wirth Steffen, Immunities, Related Problems, and Article 98 of the Rome Statute, 12 Crim. L.F. 429, 45254 (2001).

98 In the margins of the July-August 1999 session of the ICC Preparatory Commission, delegates from Canada and the United Kingdom circulated a paper, quoted in Broomhall, supra note 85, at 144, in which they stated:

The interpretation which should be given to Article 98 is as follows. Having regard to the terms of the Statute, the Court shall not be required to obtain a waiver of immunity with respect to the surrender by one State Party of a head of State or government, or diplomat, of another State Party.

This informal paper [hereinafter UK/Canada paper] was circulated after discussions among the “like-minded” group of countries on the relationship between Articles 2V and 98.

99 International Criminal Court Act, 2001, c. 17, §23(1), (2) [hereinafter UK Act]; International Criminal Court Act, 2002, c. 453 (Malta) (inserting a new Art. 26S into the Extradition Act, c. 276, whose paras. (1) and (2) are identical to §23(1) and (2) of the UK Act); International Criminal Court Bill, 2003, No. 36, §60(1) (Ir.) (to the same effect).

100 Crimes Against Humanity and War Crimes Act, 2000, ch. 24, §48 (Can.) (inserting a new §6.1 into the Extradition Act, 1999, ch. 18: “Despite any other Act or law, no person who is the subject of a request for surrender by the International Criminal Court . . . may claim immunity under common law or by statute from arrest or extradition under this Act.”); see also id. §70; International Crimes and International Criminal Court Act, 2000, No. 26, §31(1) (N.Z.) (“The existence of any immunity or special procedural rule attaching to the official capacity of any person is not a ground for—(a) refusing or postponing the execution of a request for surrender or other assistance by the ICC; or (b) holding that a person is ineligible for surrender, transfer, or removal to the ICC or another State under this Act” Under §31(2), subsection (1) is subject to §§66 and 120, which permit proceedings to be stayed while the ICC makes a determination under Art. 98).

101 The courts in these countries will probably apply the common law rule that ambiguous legislation ought to be construed in a manner consistent with the state’s international obligations rather than in a manner contrary to them. Sec Salomon v. Customs & Excise Commissioners, [1967] 2 Q.B. 116 (C.A.); Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804).

102 Under Article 26S (4) of the Maltese Act and §23 (4) of the UK Act (but not under the Irish bill), supra note 99, the minister or secretary of state may, after consultations with the ICC and the other state, direct that proceedings which, but for subsections (1) & (2), would be prohibited by state or diplomatic immunity, shall not be taken.

103 See Part I for a discussion of the immunities available to state officials in cases in which they are accused of committing international crimes.

104 See supra note 88.

105 Broomhall, supra note 85, at 145.

106 See VCLT, supra note 71, Arts. 34–38.

107 Gaeta, supra note 24, at 993; see, e.g., ICC Statute, supra note 6, Art. 90(4).

108 ICC Statute, supranote 6, Art. 73; see also id., Art. 93 (9) (b) (providing that where a request for assistance from the Court “concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization”).

109 See id., pmbl., 4th & 5th paras.:

Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation,

Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.

110 Broomhall, supra note 85, at 145; Gaeta, supra note 24, at 993–94; Wirth, supra note 97, at 452.

111 United States—Standards for Reformulated and Conventional Gasoline, WTO Doc. WT/DS2/AB/R, at 23 (adopted May 20, 1996) (Appellate Body report).

112 Wirth, supra note 97, at 452.

113 ICC Statute, supra note 6, Art. 98(1).

114 See supra note 94.

113 See O t to Triffterer, Article 27, in Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article 513 margin n.24 (Otto Triffterer ed., 1999) [hereinafter ROME COMMENTARY].

116 It cannot be excluded that private parties, or peacekeeping or peace enforcement forces operating under a mandate from an international organization will be involved in surrendering persons to the ICC. Some persons have been transferred to the ICTY by NATO forces operating in Bosnia and Croatia. In one case there appeared to be collusion between private parties and the NATO force. See Prosecutor v. Nikolić, Interlocutory Appeals Decision, No. IT–94–2–AR73 (June 5, 2003). Since peacekeeping or peace enforcement forces are composed of state forces, any limitations that apply to states (e.g., the immunities retained in Article 98) would arguably apply to such forces as well.

117 Gaeta, supra note 24, at 994; Triffterer, supra note 115.

118 See notes 99 and 100 supra, see also UK/Canada paper, supra note 98. For collected national legislation implementing the ICC Statute, see, for example, <http://web.amnesty.org/web/web.nsf/pages/implementation>; <http://www.nottingham.ac.uk/law/hrlc/hrlc_enacted%201egislation.htm>.

119 Co-operation with the International Criminal Court, Arts. 6, 4 June 22, 2001 (Switz.) (providing, respectively, that the Swiss Federal Council “shall decide on questions of immunity relating to article 98 in conjunction with article 27 of the Statute which arise in the course of the execution of requests,” and that consultations be held with the ICC where it appears that a request from the Court could violate state or diplomatic immunity); Implementation of the Rome Statute of the International Criminal Court Act, 2002, No. 27, §10(9) (S. Afr.) (providing that the fact that, under §4(2) (a), a person “is or was a head of State or government, a member of a government or parliament, an elected representative or a government official” does not constitute a ground for refusing to issue an order for surrender to the ICC). The latter provision arguably refers only to domestic and not foreign officials, but since §4(2) states that the official position of these persons shall not constitute a defense despite any other law to the contrary, “including customary and conventional international law,” it suggests that foreign officials are contemplated as well.

120 VCLT, supra note 71, Art. 31 (3) (b) (emphasis added).

121 See the cases of Charles Taylor, supra note 61, and Slobodan Milošević, supra note 70, and text at notes 68–74.

122 Articles 27 and 98 were drafted by different committees. See Triffterer, supra note 115. It is not clear whether any thought was given to the consistency of the two provisions with one another or to the question whether Article 98 applied to ICC parties.

123 For an analysis of Article 98(2), see Akande, supra note 70, at 642–46; Salvatore Zappalà, The Reaction of the US to the Entry into Force of the ICC Statute: Comments on UNSC Resolution 1422 (2002) and Article 98 Agreements, 1 J. Int’l Crim. Just. 114 (2003).

124 See, e.g., Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of their Forces, June 19, 1951, 4 UST 1792, 199 UNTS 67 [hereinafter NATO SOFA]. Some have doubted whether the NATO and similar SOFAs come within the scope of Article 98(2). See AmnestyInternational, International Criminal Court: US Efforts to Obtain Impunity for Genocide, Crimes Against Humanity and War Crimes, pt. III (AI Index No.IOR 40/025/2002), available at <http://web.amnesty.org/library/index/engior400252002>; Fleck Dieter, Are Foreign Military Personnel Exempt from International Criminal Jurisdiction Under Status of Forces Agreements? 1 J. Int’l Crim. Just. 651 (2003); Paust, supra note 89, at 10; Wirth, supra note 97, at 455.

This writer has argued elsewhere, Akande, supra note 70, at 644, that Articles VII(3) (C) and VII(5) of the NATO SOFA fall within the language of Article 98 (2). Moreover, it is generally admitted that Article 98 (2) was drafted with the intention of applying to SOFAs. See Prost Kimberly & Schlunck Angelika, Article 98, in Rome Commentary, supra note 115, at 1133 margin n.6.

125 E.g., European Convention on Extradition, Dec. 13, 1957, Art. 15, 359 UNTS 273; see Akande, supra note 70; Prost & Schlunck, supra note 124, at 1133 margin n.6; Wirth, supra note 97, at 455.

126 Typically, under these agreements,

Persons of one Party present in the territory of the other shall not, absent the expressed consent of the first Party,

  • (a)

    (a) be surrendered or transferred by any means to the International Criminal Court for any purpose, or

  • (b)

    (b) be surrendered or transferred by any means to any other entity or third country, or expelled to a third country, for the purpose of surrender to or transfer to the International Criminal Court.

For the purposes of the agreement, “ ‘persons’ are current or former government officials, employees (including contractors), or military personnel or nationals of one Party.” For the text of the agreement, see Sean D. Murphy, Contemporary Practice of the United States, 97 AJIL 200, 201–02 (2003).

127 See Akande, supra note 70, at 643–44; Crawford James, Sands Philippe, & Wilde Ralph, In The Matter of the International Criminal Court and in the Matter of Bilateral Agreements Sought by the United States Under Article 98(2) of the Statute (June 5, 2003), available at <http://www.lchr.org/internationaljustice/Art98_061403.pdf> (arguing that these agreements are inconsistent with Article 98(2) because (1) they deal with persons who cannot objectively be treated as having been “sent” by a state, and (2) the object and purpose of the ICC Statute precludes a state party from entering into an agreement whose purpose or effect may lead to impunity); Zappalà, supra note 123, at 129. For similar views, see Council of the European Union, EU Guiding Principles Concerning Arrangements Between a State Party to the Rome Statute of the International Criminal Court and the United States Regarding the Conditions to Surrender of Persons to the Court, in Council Conclusions—International Criminal Court, annex (Sept. 30, 2002), 42 ILM 240, 241 (2003).

128 By April 7, 2004, the Department of State reported that seventy-four states had concluded such agreements with the United States. Thirty-four are parties to the ICC Statute. For a list, see <http://www.iccnow.org/documents/usandtheicc.html>. It has been debated whether Article 98 (2) covers agreements entered into after the entry into force of the Rome Statute or only preexisting agreements. The better view is that it covers both. See Crawford, Sands, & Wilde, supranote 127, para. 38; Akande, supra note 70, at 645; Zappalà, supra note 123, at 122–23.

129 Military Technical Agreement Between the International Security Assistance Force (ISAF) and the Interim Administration of Afghanistan Jan. 4, 2002, Annex A, §1(4), 41 ILM 1032 (2002) (“The Interim Administration agree that ISAF and supporting personnel, including associated liaison personnel, may not be surrendered to, or otherwise transferred to the custody of, an international tribunal or any other entity or State without the express consent of the contributing nation.”).

130 For the composition of ISAF at its inception, see Fact Sheet: International Security Assistance Force (ISAF) in Afghanistan, at <http://www.cdi.org/terrorism/isaf.cfm> (last modified Feb. 14, 2002). For a more recent list, see International Assistance Security Force, at <http://www.afnorth.nato.int/ISAF/index.htm> (last modified Apr. 20, 2004).

131 This is evidently not the view of the members of the EU. Council of the European Union, supra note 127, annex, at 241 (stating: “Nationality of persons not to be surrendered: any solution should only cover persons who are not nationals of an ICC State Party.”).

132 See EC Commission Legal Service, Effective Functioning of the International Criminal Court Undermined by Bilateral Agreements as Proposed by the U.S., 23 Hum. Rts. L.J. 15859 (2002) (internal opinion); Human Rights Watch, United States Efforts to Undermine the International Criminal Court: Legal Analysis of Impunity Agreements (Sept. 4, 2002), at <http://www.hrw.org/campaigns/icc/docs/art98analysis.htm>. Those taking this view argue that to interpret Article 98(2) as extending to agreements with nonparties would result in impunity in cases where the nonparty decides not to prosecute. They then argue that such an interpretation must be rejected since one of the purposes of the Statute is the prevention of impunity. According to this view, Article 98(2) is only a “routing device,” allowing the ICC party on whose territory a national of another ICC party is found to comply with its treaty obligations to the latter ICC party but leaving the Court free to request surrender from the latter state.

133 See pp. 421–22 supra. See also Akande, supra note 70, at 643, for further reasons suggesting this argument is unacceptable.

134 Admittedly, it is more difficult to interpret the wording of Article 98(2) as applying only to agreements concluded by nonparties. Since that provision prevents requests for surrender that would “require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required,” it does not explicitly exclude agreements concluded by parties. In addition, while obligations under the Statute (such as those in Article 27) are part of the “obligations under international law” of states parties and can therefore be taken into account under Article 98 (1), it may be argued that Article 98 (2) only requires consideration of the obligations under other international agreements and not under the Statute. Although, as between the same parties, the obligations under the Statute would normally prevail over those in prior agreements, see VCLT, supra note 71, Art. 30(3), it could be argued that Article 98(2) effectively specifies that the Statute is subject to the agreements referred to in that provision. In such circumstances, the provision of that other agreement would prevail, see id., Art. 30(2).

135 While extradition agreements within the scope of Article 98(2), see supra note 125 and corresponding text, will not be covered by the waiver in Article 27, it has been argued that the right of ICC parties, under those extradition treaties, to demand that persons they extradite not be transferred to the Court has been waived by Article 89 of the ICC Statute. See Wirth, supra note 97, at 455.

136 See Akande, supra note 70.

137 VCLT, supra note 71, Art. 30(3).

138 Id.

139 Id., Art. 30(4) (b).

140 See, e.g., UN Immunities Convention, supra note 35, Art. V, §18(a). A range of treaties deal with the immunities of international organizations. However, the provisions in those treaties dealing with immunity from arrest and criminal process tend to be uniform.

141 See part I above for the argument that acts which amount to international crimes are nevertheless to be regarded as official acts where they are done under “color of law.”

142 See Schermers Henry G. & Blokker Niels M., International Institutional Law 358, §534 (3d rev. ed. 1995); Szasz Paul C. & Ingadottir Thordis, The UN and the ICC: The Immunity of the UN and Its Officials, 14 Leiden J. Int’l L. 867, 880 (2001).

143 See, e.g., UN Immunities Convention, supra note 35, Art. V, §19. Since many heads of international organizations were previously senior state officials or government members, it is not inconceivable that they may be accused of having committed or been involved in the commission of an international crime prior to their appointment by the organization. For example, it was alleged that Kurt Waldheim—a former Austrian UN secretary-general (1972–1981)—had been involved in the commission of war crimes during World War II.

144 See, e.g., id., Art. VI, §22(a).

145 ICC Statute, supra note 6, Art. 98(1).

146 Id., Art. 98(2). This provision is wide enough to cover treaty provisions conferring immunity on the representatives of states to international organizations since it is the member state and not the organization that is usually empowered to waive the immunity. See, e.g., UN Immunities Convention, supra note 35, Art. IV, §14.

147 See Triffterer, supra note 115, at 509.

148 Szasz & Ingadottir, supra note 142, at 881–82.

149 This follows from the principle that an official or expert of an international organization is entitled to immunity even from the jurisdiction of his own state. See Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, 1999 ICJ Rep. 62, para. 46 (Apr. 29); Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, 1989 ICJ Rep. 177, paras. 51–52 (Dec. 15); see also Amerasinghe C. F., Principles of the Institutional Law of International Organizations 370 (1996).

150 See, e.g., UN Immunities Convention, supra note 35, Art. V, §20 & Art. VI, §23.

151 Under Article 87(6) ICC Statute, the Court is empowered to request cooperation and assistance from international organizations.

152 Article 19 provides:

If the Court seeks to exercise its jurisdiction over a person who is alleged to be criminally responsible for a crime within the jurisdiction of the Court and if, in the circumstances, such person enjoys, according to the relevant rules of international law, any privileges and immunities as are necessary for the independent exercise of his or her work for the United Nations, the United Nations undertakes to cooperate fully with the Court and to take all necessary measures to allow the Court to exercise its jurisdiction, in particular by waiving any such privileges and immunities.

Draft Relationship Agreement Between the United Nations and the International Criminal Court, UN Doc. ICCASP/13 (2002), available at <http://www.un.org/law/icc/asp/lstsession/report/english/part_ii_g_e.pdf> (last modified Dec. 19, 2003).

153 See Crawford, Sands, & Wilde, supra note 127, paras. 58–59 (arguing that where the ICC has requested or intends to request the surrender of a person, it is for the Court to decide whether a bilateral nonsurrender agreement covering the person is consistent with Art. 98 (2)).

154 ICC Rules of Procedure and Evidence, Rule 195, Doc. ICC–ASP/1/3, available at <http://www.icc-cpi.int> (visited May 10, 2004).

155 Broomhall, supra note 85, at 145, and Wirth, supra note 97, at 458, argue that the final decision should be left to the ICC.

156 See Crawford, Sands, & Wilde, supra note 127, para. 58(6).

157 Ch. 24, §48, 2000 S.C. (amending Extradition Act, ch. 18, §6, 1999 S.C.); see also Crimes Against Humanity and War Crimes Act, supra note 100, §70 (amending State Immunity Act, ch. 41, §16, 1991 S.C).

158 International Crimes and International Criminal Court Act, supra note 100, §31, amended by No. 67, 2000. Under sections 66 and 120, the New Zealand executive may request that the ICC make a final determination on whether or not Article 98 applies to a request for surrender. However, if the ICC advises that it intends to proceed with the request, the New Zealand authorities must comply.

159 International Criminal Court Act, 2002, No. 41, §12 (Austl.); Co-operation with the International Criminal Court (Switz.), supra note 119, Arts. 4(d), 6.

160 UK Act, supra note 99, §23(3); International Criminal Court Act (Malta), supra note 99, Art. 14 (inserting a new Art. 26S(3) into the Extradition Act).

161 UK Act, supra note 99, §23(4); International Criminal Court Act (Malta), supranote 99, Art. 14 (inserting a new Art. 26S(4) into the Extradition Act).

162 ICC Statute, supra note 6, pmbl.

163 Fox, supra note 1, at 30.

* This is a revised version of a paper first presented in March 2003 at the conference organized by the Nationalism and Ethnic Conflict Research Group, University of Western Ontario, Canada, entitled “Bringing Power to Justice? The Prospects of International Criminal Law.” I am grateful to Sir Franklin Berman, Dr. Robert Cryer, Professor Joanna Harrington, Sangeeta Shah, Professor Colin Warbrick, and Elizabeth Wilmshurst for their many helpful comments on earlier drafts.

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