No immunity for presidents in international law, ICC rules

BY Nzau Musau

THERE is no immunity for sitting presidents in the international law as far as international crimes are concerned , ICC ruled earlier this week in a quiet but historic decision which also trashed African Union resolutions on the matter.

The ruling given in respect of Malawi over failure to arrest Sudan President Omar Bashir when he visited the country recently flies in the face of Attorney General Githu Muigai's statement that the Rome Statute itself recognizes this immunity.

It also flies in the face of AU which has been using Article 98 (1) of Rome Statute to urge its membership not to honor requests to arrest Bashir. Using AU's arguments, Kenya refused to arrest Bashir last year when he visited the country.

The article says that “the court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.”

This is in sharp contrast to Article 21 (2) which says that “Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.”

But in their ruling, Judges Sanji Monageng, Sylvia Steiner and Cuno Tarfusser said acceptance of article 27(2) of the Statute implies waiver of immunities for the purposes of article 98(1).

Moreover and according to them, there is no immunity for international crimes for anyone. They stretched their arguments on this back to March 1919 in the aftermath of the first World War when the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties rejected such an idea.

“There is no reason why rank, however exalted, should in any circumstances protect the holder of it from responsibility when that responsibility has been established before a properly constituted tribunal. This extends even to the case of heads of States,” the judges quoted the commission as recommending.

The commission also stated that the privilege of immunity for presidents is one of “practical expedience in municipal law” and is not fundamental. It said although applicable in home countries, it means nothing internationally.

The judges also quoted the precedents of the Tokyo and Nuremberg tribunals constituted after second world war and which both rejected the idea of immunity saying authors of international crimes could not be allowed to “shelter themselves behind their official positions” in order to escape punishment.

To arguments of diplomatic immunity, the judges reminded AU that the international military tribunal sitting in Tokyo in 1946 convicted defendant Hiroshi Oshima, the Japanese ambassador in Berlin despite his assertion that he was protected by this diplomatic immunity.

“Diplomatic privilege does not import immunity from legal liability, but only exemption from trial by the Courts of the State to which an Ambassador is accredited, in any event this immunity has no relation to crimes against international law charged before a tribunal having jurisdiction,” the 1946 judgment read.

The judges quoted the principles of international law recognized in the charter of the Nuremberg Tribunal and in the judgment of the tribunal as saying that the fact that a person who commits a crime against international law is a president “does not relieve him from responsibility.” The principles were adopted by the UN General Assembly in 1950 and are the basis for Rome Statute.

Further the judges quoted recent international tribunals and international practices as rejecting the idea of presidential immunity. They quoted Article 7(2) of the International Tribunal for the former Yugoslavia as saying that presidents are not exempt from criminal responsibility.

They said on several occasions especially after the transfer of Slobodan Milosevic, the ICTY stated that this provision (article 7(2) ) was assertive of customary international law. They said the same principle had been adopted by the International Law Commission in drafting a code of crimes against peace and security of mankind.

In their lengthy ruling, the judges also cited the International Court of Justice (ICJ) which held that although customary international law provided for immunity of certain officials, such immunities mean nothing in an international court arena.

“Therefore, the chamber finds 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 said.

They said this applies even to former or sitting heads of states which are not party to the statute as Sudan. In any case, the judges observed, trying heads of state has gained 'widespread recognition as accepted practice” in the last ten years.

“Even some states which have not joined the court have twice allowed for situations to be referred to the court by UN Security Council Resolutions, undoubtedly in the knowledge that these referrals might involve prosecution of heads of state who might ordinarily have immunity from domestic prosecution,” they said.

The judges said membership of the statute had hit a critical mass of 120 states, all of whom had accepted having any immunity they had under international law stripped from their top officials.

The ruling was provoked by an explanation by Malawi that it failed to arrest Bashir because he is a sitting head of state who enjoys certain privileges and immunities under the principles of public international law, because Sudan is not a member of ICC and because the AU had opposed such a move in the first place.

Malawi had also cited its domestic law granting the immunity but this was considered irrelevant by the court.

The judges said Malawi failed in its duty as ICC member by deciding on the law instead of letting the court do its work, refusing to respond to court's request to arrest Bashir and more substantially, in refusing to arrest him.