Piercing the Veil of State Immunity: Exceptions to the rule

Incumbent head of state immunity at international law is a multi-layered issue. Whether an incumbent head of state always has immunity therefore depends on certain variables. In this short piece, I will discuss the current state of the law on state immunity.

Revisiting old tensions: Horizontality

Incumbent head of state immunity hugs the boundaries of the verticality/ horizontality discourse. Although derived from customary international law, state immunity is rooted in the horizontal level through its objective of maintaining a peaceful coexistence[1] between States and ensuring states’ sovereignty. As underscored in Arrest Warrant[2], courts at the horizontal level cannot interfere with head of state immunity because such an action would hinder the effective performance of the official’s duties.  At this level, there is no exception for State official immunity – not even for derogation of jus cogens norms.[3] Although this may seem a high price to pay to grease the wheels of international camaraderie, some argue[4] that absence of immunity in relation to human rights violations is more likely to hinder international cooperation than it is to significantly increasing protection of human rights.[5]

Peeling back the layers: Ratione materiae and Ratione personae

Viewed through a human rights lens, the finding of absolute immunity in Arrest Warrant is contentious. However, I argue that in failing to make a clear distinction between ratione materiae and ratione personae, the Arrest Warrant judgement missed an opportunity to limit the polemic nature of its overarching judgment. Ratione personae (immunity attaching to the office) is much broader than ratione materiae (immunity attaching to official acts). Ratione materiae is narrower by definition but travels with the official after s/he leaves office. So while in office, the official is blanketed by both ratione materiae and ratione personae. Once the individual leaves office, his ratione materiae ‘protection’ may be peeled off by showing for example that certain acts are not official in nature (see generally Pinochet and the torture as an official act argument). The Arrest Warrant decision bases its finding of absolute immunity primarily on ratione personae. I find this significant because it moves the justification beyond ‘effective performance’[6] (which tends more toward ratione materiae) to the basic integrity of the state and its offices.  Though not explicit in Arrest Warrant, it must be this integrity that requires absolute immunity. No state should be able to jeopardize the integrity of another state by interfering with ratione personae.

(On a side note, I would be curious to see how the Arrest Warrant horizontal ratione personae argument would apply to a human rights violating president for life; it seems easy to make an immunity argument when the official’s period of office is finite but the reality is that most human right official violators are also abusers of power who will stay indefinitely. At this horizontal level, do immunity and impunity not then collide?)

Revisiting old tensions: Verticality

While a State cannot claim jurisdiction over another State’s incumbent head of state, an international tribunal can (see generally Prosecutor v. Charles Ghankay Taylor). In this way, heads of state and other high ranking officials do not enjoy impunity.[7] On this vertical level, international criminal justice is recognized as being more appealing than the competing ‘horizontal’ values it may trample (here at 34). However, this vertical claim of jurisdiction is subject to two conditions:[8]

(1) that the instruments creating the tribunals expressly or implicitly remove the relevant immunity of the official, and

(2) that the state of the official concerned is bound by the instrument removing the immunity.

Arguably, condition (1) forces ad-hoc tribunals to continually re-justify their verticality thus weakening international criminal law’s mandate.  In Prosecutor v. Charles Ghankay Taylor for example, the SCSL had to first justify that Charles Taylor was not subject to ratione materiae by proving that it was behaving vertically through customary international law. However, from a purely practical stance, this process allows accused officials to fully explore all avenues of defence.

The ICC fulfills condition (1) expressly through article 27 (of the Rome Statute).  With regard to condition (2), the Court has jurisdiction over parties to the Rome Statute and those the Security Council refers to the court (e.g. incumbent President al Bashir).

Referral of the situation to the ICC by the Security Council implicitly makes the Statute and Article 27 applicable to Sudan.[9]

How far can this go?

Is the removal of immunity merely factual? Arguably no state will hand over their Head of State if s/he is found guilty by an international tribunal. Can the ICC merely try the President in absentia or can an incumbent head of State be arrested?

Though the Court does not have independent powers to arrest, through Article 98, States are conferred the power to arrest a visiting head of state. Questions concerning the tensions in Article 98 and possible conflict of treaty obligations are outside the scope of this paper.

Conclusion

Incumbent head of state immunity presents an interesting snapshot of the horizontal/vertical dichotomy that exists in international criminal law. While absolute immunity reigns on the horizontal plain, international tribunals have managed to carve out a place of superiority using their enabling Statutes and customary international law. In this way, they reiterate the fact they are not peers of States and are therefore endowed with the capacity to fully render international criminal justice by stripping heads of state of their immunity.

[2] Democratic Republic of the Congo v. Belgium (Case Concerning the Arrest Warrant of 11 April 2000), [2002] I.C.J. Rep. 3 [Arresst Warrant].

[3] Ibid at para. 58.

[4] Dapo Akande, “International Law Immunities and the International Criminal Court” (2004) 98:3 AJIL 407 at 410 – 411 [Akande].

[5] Also see my previous short paper for policy arguments on the distinction between international justice and diplomatic peace.

[6] Arrest Warrant, supra note 2 at para. 53.

[7] Ibid, at para. 48.

[8] Akande, supra note 4 at 418.

[9] Dapo Akande, “The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities” at 348.

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