Immunity = impunity
The erosion of immunities for heads of state
Until the Second World War, heads of state were seen as immune from international criminal prosecution as they were said to embody the inviolable sovereign state. Since then, the law and practice of several international criminal tribunals has codified the understanding that grave crimes are committed by individuals, and dispelled the notion that personal responsibility can be avoided by claiming protection offered by the abstract idea of acting as the state.
It was the scale and planning behind the German atrocities of 1939-45 that led the Allies to prosecute the Nazi leadership at the war’s conclusion. The trials in Nuremburg set in motion the international justice movement we know today. However, it was not until the end of the Cold War that the idea gained further traction. In the 1990s, the conflicts in Yugoslavia, Rwanda and Sierra Leone prompted the United Nations (UN) to set up separate, temporary tribunals to prosecute those most responsible—including leaders such as Slobodan Milosevic and Charles Taylor. These efforts further solidified the principle of irrelevance of official capacity for serious crimes under international law.
Rome Statute definitively rejects immunity in effort to end impunity
When the Rome Statute establishing the permanent ICC was adopted in 1998, its Article 27 unequivocally read: “this Statute shall apply equally to all persons without any distinction based on official capacity.” This was a definitive rejection by the international community of the paradox that legal responsibility should be the least where power is the greatest.
In 2011, an ICC pre-trial chamber said that “the principle in international law is that immunity of either former or sitting heads of state can not be invoked to oppose a prosecution by an international court.” The judges noted that immunity for heads of state before international courts had been rejected time and again, emphasizing that initiating international prosecutions against heads of state has gained widespread recognition as accepted practice.
Past and present leaders such as the late Muammar Gaddafi, Omar Al-Bashir, Laurent Gbagbo and Uhuru Kenyatta have all come under scrutiny at the ICC in its short history to date.
Meanwhile, a seminal 2002 International Court of Justice decision specifically rejected the concept of immunity for heads of state, sitting or otherwise, before international courts.
The Coalition for the ICC remains a staunch defender of the Rome Statute, which has at its core the principle of equality of individuals, which applies without distinction, regardless of gender, age, race, color, language, religion, origin, wealth, birth or other status. The cornerstones of equality before the law and individuality go not only to the heart of international criminal responsibility, but also to the very nature of the redress which can be gained at the ICC.
At the national level, many of the ICC’s 122 member states have excluded immunities for heads of states or government officials for international crimes in their own domestic laws.
However, having seen that they no longer have a free hand to act with impunity, it appears some leaders are now trying to rewrite history to their own advantage.
Kenya amendment proposals threaten to undermine Rome Statute
In March 2014, the Kenyan government formally submitted to the UN Treaty Office a set of amendments to the Rome Statute, including to Article 27, to exempt heads of state or other senior government officials from criminal responsibility while in office.
Kenya, on behalf of the African Union (AU), is proposing that a third paragraph be added to Article 27 reading that “serving Heads of State, their deputies and anybody acting or is entitled to act as such may be exempt from prosecution during their current term of office….”
Such language would completely negate the earlier two paragraphs of Article 27. In particular it is impossible to see how the proposed amendment to allow immunity for serving heads of state and their deputies can be reconciled with Article 27(1) which definitively states that official capacity “shall in no case exempt a person from criminal responsibility under this Statute.”
The Coalition continues to strongly oppose any proposal which will fundamentally undermine the integrity of the Rome Statute and the ICC, including amendments which would confer immunity upon government and high-ranking officials. Such immunities would hold the real possibility that those who wield the most power and influence over a state’s apparatus and population could commit crimes with impunity, while providing an incentive for those committing the gravest crimes to entrench their power in order to avoid future accountability.
All ICC member states must also now stand up and defend the integrity of the Rome Statute as the Assembly of States Parties faces one of its most serious political challenges to date.
Immunities at the African Court?
In July 2014, the AU approved an expansion of the jurisdiction of the African Court of Justice and Human Rights to include war crimes, crimes against humanity and genocide, along with a range of transnational crimes which are important to the African continent. Unfortunately, the measure stipulates that heads of state and senior government officials would be immune from prosecution while they are in office.
In May, the Coalition joined 40 other civil society organizations in calling on African attorneys general and justice ministers to reject the proposed expansion, which would require 15 ratifications by AU member states to enter into force. If it does, it would be a hugely retrogressive development in customary international law, attempting to negate over 60 years of precedents to the contrary.
George Kegoro, executive director of the International Commission of Jurists-Kenya:
“The immunity provision is a regrettable departure from the AU’s Constitutive Act, which rejects impunity under Article 4. Immunity takes away the prospect that victims can access justice at the African court when leaders commit atrocities. African states should take a clear stand opposing this immunity.”
Ultimately, however, if the new jurisdiction does come into effect, it will have no effect on the ICC’s ability to try heads of state. The African Court might not be able to prosecute a sitting president, but if he or she is the president of a Rome Statute state party, the ICC certainly can.
William R. Pace, convenor of the Coalition for the ICC:
“The Coalition for the ICC vehemently opposes any hint of immunities for grave international crimes at the ICC, at the African Court or in national jurisdictions. The tragic events of the 20th century have shown us that the immunity enjoyed by world leaders led them to commit the most heinous crimes exactly because they knew they could act with impunity. The Rome Statute is the most important development in the past 50 years to rein in this unchecked power. Everything must be done to protect its integrity.”
Consigning immunities to history
It is clear that the idea of immunities for heads of state and senior government officials needs to remain consigned to the history books—where it was definitively sent with the adoption of the RS. Civil society stands ready to defend the integrity of the Rome Statute and continue the fight against impunity for all those responsible for grave crimes, no matter their rank or station.
A version of this post appeared in our 2014 Global Justice Monitor.
