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 The Scope and Nature of
Immunity From Jurisdiction for Heads of State Under International Law.
By Gabriel
Sawma,
The
Assassination of Former Prime Minister, Rafiq al-Hariri.
In
February 14, 2005 a powerful blast killed the former Prime Minister of
Lebanon Rafik al-Hariri in Beirut. The US recalled its ambassador to Syria
for consultations over the death, which raised fears of a return to the
violence of Lebanon’s civil war years.
The
United Nations Security Council called for the perpetrators to be brought
to justice. The Secretary General Kofi Annan urged more progress on the
withdrawal of Syrian forces from Lebanon. US Ambassador Margaret Scrobey
delivered a note to the Syrian government expressing US outrage over the
killing.
Mr.
Annan said in a statement that he had written to Syrian President Bashar
al-Assad, to urge him to comply with a UN resolution calling for the
withdrawal of foreign troops from Lebanon.
The United States and France
jointly initiated a demand by the Security Council to bring the killers to
justice. UN Secretary General Kofi Annan announced the dispatch of an
independent team to investigate the assassination. The mass demonstrations
in Lebanon, featuring harsh attacks against Syria, which until then had
been unprecedented, encouraged the West to place increased pressure on
Damascus to fulfill the terms of Security Council Resolution 1559 and
remove its forces from Lebanon. In April 26, 2005, the Syrian government
announced the withdrawal of their forces in compliance with the Security
Council Resolution.
A
probe was established to investigate the killing of Rafiq al-Hariri,
headed by a known German prosecutor, Detlev Mehlis. The investigation is
still going on at the time of this article. The Question is, what will
happen next. If Syria’s President is involved in this criminal activity,
does he loose his immunity as Head of State?
Immunity Under International
Law
Until
the 20th century, there were no international courts which
could exercise jurisdiction over heads of state, and national courts could
not exercise jurisdiction over serving heads of state or former heads of
state for public acts carried out while in office. This position under
international law has since evolved.
It
developed first under article 227 of the Treaty of Versailles (1919)
whereby the former Kaiser, William II, was indicted for prosecution before
special tribunal to be constituted by the victorious powers. Then came to
the trials before the Nuremberg and Tokyo International Military Tribunals
at the end of World War II.
Under the UN Charter Article
29, the Security Council has the power to establish subsidiary bodies to
perform its functions. The Council could establish a Liaison Group with
International Courts that would coordinate with the International
Court of Justice (ICJ), international criminal tribunal, two of which were
established: the International Criminal Tribunal for Yugoslavia (ICTY) and
Rwanda (ICTR).
Due to significant financial
and personnel requirements, none of the Security members supported the
establishment of another UN tribunal similar to the ICTY and ICTR.
Instead, the UN decided to create a special hybrid-court that will be
administered jointly by the government involved and the United Nations.
Accordingly, the Security Council set up several criminal tribunals, these
are:
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Special Court for Sierra Leone (SCSL) to look into the crimes committed
against civilians with mass amputation and rape. The SCSL is a “hybrid”
national and international court designed to bring the perpetrators of
these crimes to justice.
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Special Tribunal for Cambodia (STC) to look into the crimes committed by
the Khmer Rouge who killed an estimated 1 million people during the
1970s. Thirty years later, the UN and the Cambodian government agreed to
establish a joint national and international court to hold those
responsible accountable.
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Ad
Hoc Court for East Timor to look into the crimes committed by the
Indonesian military and pro-Indonesian militias who murdered thousands
of Timorese during the territory’s struggle for independence, and hold
responsible the perpetrators from the Indonesian government.
The
primary difference between the Special Court and the ICTY and ICTR is the
mandate under which they are created. The ICTY and ICTR were established
by the Security Council under Chapter VII of the UN Charter, which gives
the United Nations power to intervene in the affairs of sovereign state to
restore international peace and security. These tribunals are under the
jurisdiction of the UN and operate independently from and irrespective of
the Yugoslav and Rwandan governments.
A
treaty between the United Nations and the sovereign governments, usually
under joint jurisdiction, created the Special Courts for Sierra Leone,
Cambodia, and East Timor, and as such, the tribunals represent an entirely
new model for bringing perpetrators or war crimes to justice. These
Special Courts are staffed with both local and international judges and
prosecutors. The Secretary-General appoints a Chief Prosecutor for each
case, while the local governments, in consultation with the UN, appoint a
Deputy. Although the Deputy will have some input on the indictments, the
Chief Prosecutor will make the final decision.
If
security allows, the Special Courts is usually located in the country
where the crimes were committed; it is much easier for victims to follow
the court’s proceedings. At the same time, diplomats will facilitate the
diffusion of legal knowledge from international to local judicial
officials, which will assist in rebuilding the country’s judicial system.
The Security Council resolution in the case of Sierra Leon explicitly
notes the “pressing need for international cooperation to assist in
strengthening the judicial system of Sierra Leone.”
The
drawback of Special Tribunal is that, because the Security Council
directly establishes it, the court cannot assert primacy over the national
courts of third states, unless the Council endows the court with the power
to request the surrender of suspects in third states. It is important to
keep in mind that, with the absence of a Chapter VII mandate will also
prevent the court from extending its jurisdiction to prosecute war crimes
perpetrated in neighboring country. A UN tribunal established with a
Chapter VII mandate might be able to prosecute these crimes.
Prosecution of Heads of state, and high-ranking
officials. The immunity issue
The
immunity of head of state is one of the most controversial topics in
international law. The purpose of the immunities is to offer a complete
protection against national criminal jurisdiction. To create an exception
to this rule would be to create a possibility of abuse and thereby defeat
the purpose of the immunity. This principle has been held recently even
with respect to international crimes. In the Pinochet case, the judges
emphasized “head of state is till protected while in office by immunity
ratione personae even in respect of serious international crimes.”
That means a serving head of state or diplomat can still claim immunity if
charged with [torture]. “The nature of charge is irrelevant; his immunity
is personal and absolute.”
In
March 2001, the French Cour de cassation held in the Qaddafi case that the
crime charged, i.e. complicity in acts of terrorism, did not fall within
the categories of international crimes providing for an exception to
immunity from jurisdiction of Heads of State. A serving head of state is
immune from prosecution in national courts, even in relation to serious
acts of terrorism.
In the
case of Fidel Castro, the Spanish Audienco Nacional reached the same
conclusion. It stated that the Cuban President could not be tried even for
international crimes, as long as he was serving in his capacity as head of
state. He enjoys immunity under public international law.
The Spanish Court ruled that it has no jurisdiction to try Castro.In October 2001, the United
States Court reached a similar conclusion in Tachiona v. Mugabe. It
affirmed that the Torture Victim Protection Act did not override either
traditional diplomatic immunities or the comparable immunity given to
visiting heads of states.
Diplomatic immunity prevents national prosecutors from initiating a
lawsuit against foreign head of state or its diplomatic corps regardless
of the charge.
Attempts were made by other governments to limit the scope of the immunity
to heads of states and other high-ranking officials. In 1999, Belgium
passed a law providing universal jurisdiction over international crimes
committed by anyone, anywhere, even if the perpetrator was not present in
Belgium and denying all immunities for such crimes.
On April 11, 2000, a Belgium judge issued an international arrest warrant
against Mr. Yerodia, who was at the time serving as the minister for
Foreign Affairs for the Democratic Republic of Congo (DRC). The DRC
initiated proceedings against Belgium in the International Court of
Justice (ICJ), arguing that the universal jurisdiction in absentia
asserted by Belgium exceeded international law and that Belgium’s
non-recognition of the immunity of a serving minister of foreign affairs
was a violation of international law.
The
ICJ issued its ruling on Feb. 14, 2002 by 13 votes to 3 that Belgium had
violated a legal obligation towards the Democratic Republic of Vietnam.
The court firmly rejected the notion that, having regard to the
developments in international law and in particular customary
international, a serving foreign minister was entitled to claim immunity
before a national court. It held that the immunity before national courts
was not affected by the existence of treaties such as the Torture
Convention. The court held “in that they failed to respect the immunity
from criminal jurisdiction and the inviolability which the incumbent
Minister for Foreign Affairs of the DRV enjoyed under international law.
It held that the immunities ratione personae enjoyed by a Foreign
Minister could not be set aside by a national court by charging them with
war crimes or crimes against humanity.
The
personal immunity of Heads of State from jurisdiction always covers
official visits abroad, private visits are also protected, although to a
more limited extent. In an exception to immunity given to high state
officials from foreign jurisdiction, the International Court of Justice
stated that the immunity seizes if the state they represent waives their
immunity.
The Immunity of Head of State
Under the Special Tribunals
With the establishment of UN
Special Tribunals and a growing body of international human rights law,
the international community has strongly asserted individual
responsibility for violations of human rights. The status of sitting Head
of State appears to be the last battleground on this issue; prime
ministers, presidents, and kings are remaining individuals who are granted
immunity for the gravest crimes by a system of international law, which
refutes impunity for all other individuals. This situation is being
reversed gradually.
Sierra Leone suffered through a
gruesome, ten-year civil war. The Revolutionary United Front (RUF), led by
Foday Snakoh, used amputations and mass rape to terrorize the population
and gain control of the country’s lucrative diamond mines. Charles Taylor,
then president of neighboring Liberia, backed the insurgency providing
arms and training to the RUF in exchange for diamonds. In 1999 the UN
eventually brokered the Lome Peace Accord between the warring parties.
In January 2002 the UN Security
Council approved the Special Court for Sierra Leone (SCSL) to try those
responsible for the crimes committed during the civil war. The purpose of
the Special Court was to prosecute those with the “greatest
responsibility” for crimes against humanity, the court may decide whether
to indict individuals who continually instigate conflict and brutality in
their region. On June 4, 2003, the Special Court for Sierra Leone (SCSL)
issued an arrest warrant against Charles Taylor, the incumbent President
of Liberia. When the warrant was issued, Mr. Taylor was traveling to Ghana
for talks with Liberian rebel groups to end a four-year civil war that has
destabilized West Africa. The indictment against Mr. Taylor had been
issued on March 7, 2003, but was kept sealed until the Special Court
Prosecutor saw in Mr. Taylor’s trip an opportunity to apprehend him. The
warrant was served on the authorities of Ghana, and transmitted to
Interpol. Ghanaian authorities did not apprehend him.
On May
31, 2004, the Appeals Chamber of the Special Court for Sierra Leone (SCSL)
in Freetown ruled unanimously that Charles Taylor does not enjoy any
immunity from prosecution by the Court though he was the serving Head of
State of Liberia at the time criminal proceedings were initiated.
This historic ruling by the Court is a significant contribution to the
modern international law norm asserting that Heads of State and other
high-ranking governmental officials are not absolved of criminal
responsibility for serious international crimes.
Despite its hybrid nature, the SCSL is not considered a national
court; it acts as an international court, even though it functions on the
territory of Sierra Leone. In other words, it is based outside the legal
system of Sierra Leone. The State of Sierra Leone transferred the
jurisdiction to the SCSL on the basis of an agreement with the UN Security
Council. Given the Arrest Warrant case, Sierra Leone courts would
have been unable to prosecute Mr. Taylor.
As the
SCSL performs its job in Sierra Leone, it is independent from the national
judicial system; the prosecutor and judges enjoy diplomatic immunity from
any undue influence by its host state on judicial decisions. The fact that
Sierra Leone has appointed three judges is negligible as they can always
be overruled by a majority opinion of international judges, or in cases of
clear prejudice may be disqualified.
Chapter VII of the UN Charter, which governs ICTR and ICTY, does not back
the agreement between the Security Council and Sierra Leone. Both ICTR and
ICTY were established by Chapter VII Security Council resolutions, by
which all members of the UN were bound by the decision to remove immunity
for state officials. Although the SCSL did not have Chapter VII backing,
nevertheless, it had the “will” of the international community behind it.
The broad support from all sections of the international community for its
creation-political and financial-, and that it was set up pursuant to
(although not by) a Security Council resolution. It was this unexpressed
fact, which gave the SCSL a sufficient degree of comfort to hold that it
was an international court before which immunity of a Head of State did
not apply. The majority opinion among legal scholars favored the view that
there is no entitlement to immunity before international courts, and
therefore nothing to be waived.
On
June 29, 2001, the prosecutor of the International Criminal Tribunal for
the former Yugoslavia, pursuant to her authority under article 18 of the
Statute indicted Slobodan Milosevic while he was President of Yugoslavia.
The Statute of Rome, which
established the ICC adopted in 1998 article 27, which provides that there
was no entitlement to immunity for any person subject to the Jurisdiction
of the ICC.
The
Iraq Tribunal Trying Saddam Hussein and Other Top Baath Leaders
The capture of Saddam Hussein
on December 13, 2003 prompted a worldwide debate about how best to try him
and other top Baath Party Leaders. On August 11, 2005, the Iraqi
Transitional National Assembly approved a war crimes tribunal in Iraq,
which was originally established by the US-installed Iraqi government
Council. The court is mandated to prosecute numerous high level members of
the former Iraqi regime who are accused of crimes against humanity, war
crimes and genocide, but the court has mainly focused on its most
high-profile case: Saddam Hussein. Saddam went on trial on October 19,
2005, for a 1982 massacre that took place in Dujail, north of Baghdad.
Human Rights groups and legal
experts agree that the Iraqi people must have the right to try their own
persecutors, but question the competence and impartiality of Iraq’s
judicial system. The Regime Crimes Liaison Office (RCLO), run by the US
Department of Justice, is actively involved in the court’s investigations,
the translation of materials and the training of Iraqi lawyers and judges.
Critics believe that by backing a trial in Iraq, Washington hopes that its
past support for Saddam Hussein will not be revealed. Opponents of the
court had hoped for an internationally organized tribunal with significant
domestic participation, similar to the Special Court for Sierra Leone (SCSL),
to avoid the tribunal degenerating into a “political show trial.” An
international tribunal would also allow Kuwait and Iran to take part in
the trial (as they have requested) for crimes committed against these two
countries.
Is the
President of Syria Immune From Prosecution Under International Law?
Without commenting on the
merits of the case, the assassination of the former Prime Minister al-Hariri
of Lebanon by foreign elements from Syria constitutes a violation to
international law. Should the President of Syria be implicated in such a
terrorist attack, his immunity will be hanging in the air.
The assassination of former
Lebanese Prime Minister Rafiq Al-Hariri in February 2005 led the UN
Security Council to issue Resolution 1595 setting up an international
commission of inquiry.
On October 31, 2005, the
Security Council met at Ministerial Level and formally endorsed the Report
of the United Nations Independent Investigation Commission that found
evidence of Syrian involvement in the assassination of former Lebanese
Prime Minister Rafiq al-Hariri. The Security Council issued Resolution
1636 under Chapter VII of the United Nations Charter. It called for Syria
to “cooperate fully and unconditionally with the Commission and insisted
it not interfere in Lebanese affairs.”
On December 17, 2005, the UN
Security Council adopted Resolution 1644 in which it demanded that Syria
respond “unambiguously and immediately” to the Commission investigating
the terrorist attack that killed former Lebanese Prime Minister Rafiq
Hariri and extended the probe initially until June 15, 2006, leaving open
the possibility of further extension.
The Council also authorized the
Commission, following the request of the Lebanese Government, to extend
its technical assistance to that Government with regard to their
investigations on the terrorist attacks perpetrated in Lebanon since
October 1, 2004, and caused the murder of prominent journalists including
Gibran Tueini, editor in chief of a leading Lebanese newspaper “An Nahar”.
It asked the Secretary-General, in consultations with the Commission and
the Lebanese Government, “to present recommendations to expand the
Commission’s mandate to include investigations of those other attacks.”
The Security Council also
acknowledged the Lebanese Government’s request that “those eventually
charged with involvement in the terrorist attack be tried by an
international tribunal, the Council asked the Secretary-General to help
that Government identify the nature and scope of the international
assistance needed in that regard, and to report to the Council in a timely
manner.”
In a recent TV interview, the
former Vice President of Syria, Abdul-Halim Khaddam, who defected to
France, said that Assad had threatened Hariri during their last meeting.
Syrian President denied the charge, but suggested in an interview that he
would not allow UN investigators to interview him about the Hariri’s
killing.
Under the current situation,
and before the formation of the International Tribunal, the Prosecutor can
issue an Arrest Warrant against the president of Syria, but
national courts, based on the precedents mentioned earlier,
will not agree to that.
However, as soon as the
International Special Court is established, the Prosecutor can issue an
International Arrest Warrant; upon the approval of the Court,
the Interpol will be notified and the Head of State will be considered a
fugitive. An arrest warrant is an order issued by the Prosecutor to
authorize the arrest and detention of an individual.
Under the rules of the
International Criminal Court, the Pre-Trial Chamber (PTC) will authorize
such an arrest warrant, upon an application by the Prosecutor. (An
indictment, mostly used in common law countries, is a formal charge
against an individual ‘or formal accusation’ for having allegedly
committed a serious criminal offense. The ICTY but not the ICC is using
the indictment procedure.)
Once the Prosecutor has
initiated an investigation, he then may at any time make an application
for an arrest warrant to a Pre-Trial Chamber (PTC). The Prosecutor’s
application for an arrest warrant shall contain the following
information (Rome Statute, Art. 58):
·
The person’s name and
identifying information;
·
A specific reference to the
alleged crimes and a concise statement of the facts thereof;
·
A summary of evidence and
information establishing the reasonable grounds for a warrant; and
·
The reason why the Prosecutor
believes the arrest is needed.
Following receipt of the
Prosecutor’s application, the PTC will evaluate the materials presented by
the Prosecutor and issue an arrest warrant when the PTC feels that
there are reasonable grounds to believe that the person has committed a
crime under the jurisdiction of the ICC; and when the PTC finds it
necessary that the person be arrested. Arrest warrant remains in
effect until the Court decides otherwise.
The Chamber may decide to keep
a decision “sealed”, this means that the decision will be confidential and
only accessible to those persons or organs of the ICC (or outside actors),
which the Court authorizes.
On the basis of this arrest
warrant, the Court may request a State Party to make a provisional or a
full arrest and surrender. The Registrar is responsible for
transmitting a request for cooperation issued by the Chambers (e.g. a
request for arrest) to a State Party or international organization. The
Registrar will also be responsible for receiving all responses to the
request from the requested State or international organization. However, a
Chamber may allocate to the Prosecutor, instead of the Registrar, the
responsibility to transmit a particular request for cooperation, or
warrant of arrest, and to receive the responses to such requests.
What
happens after an arrest warrant and a request for arrest has been issued?
The ICC does not have its own
police force. When the Pre-Trial Chamber has issued an arrest warrant, the
Court relies on the cooperation of States and international organizations
to arrest and surrender the person. Moreover, the Court may, by itself or
following a request by the Prosecutor, take certain measures that are
necessary to ensure the safety and well being of any victims and
witnesses, including measures related to the protection of information.
A State Party receiving a
request for cooperation has to keep the request confidential. Any
information about the request may only be disclosed if this is necessary
for the execution of that request.
Once a person has been arrested
and the Court has been informed about the arrest, the Court must hand over
the arrest warrant to the arrested person. The arrested person must then
be brought before a court in the State Custody, which must determine,
based on its national laws, that the right person has been lawfully
arrested.
Beyond
A Reasonable Doubt
Judicial authorities should be
aware of the fact that it may be very difficult to determine the personal
responsibility of a Head of State. Indeed, it would be necessary to
prove beyond reasonable doubt that he ordered or instigated the
perpetration of the crimes charged with, or, despite having the effective
power and authority to prevent or punish the persons responsible for the
commission of those crimes, willfully failed to do so. So far no Syrian
official has been brought to justice.
©Copyright 2006 Gabriel Sawma Esq. all rights reserved.
For
interviews about international law, or about the Scope and Nature of
Immunity from Jurisdiction for Heads of State Under International Law,
please contact the author. Tel 609-275-6321; Fax 609-275-0355 or Email:
gabrielsawma@yahoo.com, or visit our web log at:
http://www.gabrielsawma.blogspot.com
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materials contained on this website are for general purposes only and are
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