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In the first of a two-part series considering whether the ICC’s approach is unlawful, James Onalaja explores the issued warrant for sitting heads of state and argues that this is based on a catalogue of misconceptions
It has been challenging to witness the catalogue of horrors unfolding in Ukraine, with a permanent member of the UN Security Council (UNSC) blatantly and grossly violating a fundamental principle of the UN Charter prohibiting the use of force against another state’s territorial integrity and political independence, with mounting alleged war crimes and crimes against humanity returning to the heart of Europe. There is little doubt that Putin’s ‘special military operation’ is a war of aggression. Thus, the International Criminal Court (ICC) Office of the Prosecutor (OTP) opening a preliminary investigation into the situation was unsurprising. What was surprising was the speed in which the Pre-Trial Chamber (PTC) issued arrest warrants, for Putin alongside his Children’s Rights Commissioner, Maria Levov-Belova on 17 March 2023.
In issuing the warrants for Levov-Belova and Putin, the PTC found that there were reasonable grounds to believe that both bear criminal responsibility for the unlawful transfer of Ukrainian children from occupied Ukraine to Russia, contrary to Article 8(2) of the Rome Statute (RS), with many processed into adoption in Russia, following Putin’s presidential decrees expediting conferral of Russian citizenship on them, making their adoption by Russian families easier. These allegations are likely to be the tip of the iceberg emerging from the Hague.
While not a party to the RS, following Ukraine lodging declarations with the Court’s Registrar under Article 12(3) RS on 17 April 2014 and 8 September 2015, accepting the ICC’s jurisdiction into allegations of war crimes, crimes against humanity and genocide committed on its territory since 21 November 2013, it is clear the ICC may exercise its jurisdiction over the situation, save re: allegations of crimes of aggression which the ICC has no jurisdiction with respect to Ukraine (see Article 15 bis). As a result, Ukraine is under the same obligation as state parties under Article 86 RS to cooperate with the court and be bound by its statute with respect to that situation, including the Article 27 impact on the immunity of its head of state and high officials.
The ICC requires all states parties to immediately execute Putin’s arrest warrant if he were to set foot on their territory and surrender him to the Court, in light of its Appeal Chamber’s decision in Prosecutor v Al-Bashir – Jordan Referral [2019] AC No.ICC 20/05-01/09 OA2 (‘Al-Bashir’). South Africa, hosting this August’s gathering of BRIC leaders (to which Putin was invited) wrestled with this predicament, and was only spared the consequences of this dilemma by Putin’s decision to attend via video link. Putting to one side the practical difficulties of executing a warrant to arrest the President of a UNSC permanent member and largest nuclear power, to what extent is the ICC jurisprudence on this issue founded on solid ground?
It is an established principle of customary international law that certain current holders of high-ranking offices of state, such as heads of state or governments and foreign ministers enjoy immunities from civil and criminal jurisdiction in foreign states: Arrest Warrant Case of 1 April 2000 Congo v Belgium Merits (‘Arrest Warrant Case’) [2002] ICJ Rep 3, para 51. This personal immunity ensures the effective performance of their functions on behalf of their respective states. Therefore, throughout the duration of Putin’s term of office, he ordinarily enjoys full immunity from criminal jurisdiction and inviolability (see para 53).
Putin’s attendance of international summits such as BRICS are part of his functions as president. However, personal immunities enjoyed by heads of states are more wide-ranging than those enjoyed by diplomats or ordinary functional immunity. It applies irrespective of whether Putin is travelling outside Russia for state or private purposes. Thus, there is no distinction between alleged criminal acts performed in his official capacity or in a private capacity and irrespective of when they occurred (Arrest Warrant Case paras 54-55; Certain Question of Mutual Assistance in Criminal Matters (Djibouti v France), ICJ Report 2008, 177, para 170). As his immunity belongs to the Russian Federation ordinarily, only the Russian State may waive it (Article 32, Vienna Convention on Diplomatic Relations).
This is different to functional immunity, which is linked to the maxim of sovereign equality that a state’s policies and actions cannot be judged without the consent of that state. Functional immunity only protects conduct carried out on behalf of a state by those who carry out state functions and remain attached to the act even after the official has left office. Alleged criminal acts carried out in a private capacity will not be barred from prosecution by functional immunity.
In line with R v Bow Street Magistrate, ex parte Pinochet (No. 3) [1999] 2 All ER 97, HL, an exception to the protection provided by functional immunity has emerged with respect to certain international crimes. While torture and other serious international crimes, may not be ranked (for functional immunity purposes) as official functions due to their jus cogens character, whether their prosecutions will be barred by functional immunities or not is irrelevant with respect to a sitting head of state such as Putin. As Lord Browne-Wilkinson stated in Pinochet (No. 3): ‘[t]his immunity enjoyed by a head of state in power... is a complete immunity attached to the person of the head of state… and rendering him immune from all actions or prosecutions...’ (pp 201-202). Furthermore, it is clear from the ICJ’s ruling in the Arrest Warrant Case (paras 58-59) that the fact that Putin is alleged to have committed international crimes will not provide an exception under customary international law to the rule re: his personal immunity.
The ICC-AC, however, concluded in the Al-Bashir Appeal (paras 113-119) that there is neither state practice nor opinion juris supporting the existence of head of state immunity under customary international law vis-à-vis an international court. This conclusion is based on several misapprehensions.
Firstly, the ICC-AC incorrectly concluded that statutes of previous international criminal tribunals provided evidence in support of this (paras 103-108). Article 7 of the Charter of the International Military Tribunal for Nuremberg states: ‘The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment’. A similar provision was reproduced at Articles: 6 of the Charter of the International Military Tribunal of Tokyo; 7(2) of the International Criminal Tribunal for the Former Yugoslavia (ICTY); 6(2) of the International Criminal Tribunal for Rwanda (ICTR) and of the Special Court for Sierra Leone (SCSL) statutes.
Clearly, these provisions simply remove the applicability of the defence of official capacity in relation to allegations before these international tribunals, i.e., arising from functional immunities. It is erroneous to conclude that they support a conclusion of the existence of an exception under customary international law to the principle of a sitting head of state’s personal immunity before international criminal tribunals. There is a difference between substantive defences and procedural bars to prosecution under which personal immunities must fall. As acknowledged by the ICJ in the Arrest Warrant Case (para 60), immunity from jurisdiction is not the same as responsibility for the alleged crime.
The ICC-AC in Al-Bashir (para 109) further relied on the now infamous para 61(4) of the Arrest Warrant Case decision and the SCSL Appeal Chamber (AC) decision in Prosecutor v Charles Taylor: Decision on Immunity (‘Taylor Case’) Case No. SCSL-2003-01-I, Appeal Chamber, 31 May 2004, relying on the same, where the ICJ stated that: ‘an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda, established pursuant to Security Council resolutions under Chapter VII of the United Nations Charter, and the future International Criminal Court created by the 1998 Rome Convention. The latter’s statute expressly provides, in Article 27, para 2, that “[i]mmunities 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”.’
Relying on this paragraph in the Taylor Case (paras 51-52), the SCSL-AC similarly concluded that there was now an established norm that the principle of sovereign equality of states which derives the principle of state immunity will not prevent a head of state from prosecution before an international criminal tribunal as it has no relevance as international criminal tribunals are not state organs but derive their mandate from the international community (Al-Bashir paras 109-115).
However, this is misconceived re: a sitting head of state. The principle of sovereign equality is the rationale for functional immunity, it is not the basis for personal immunity as applicable to a sitting head of state. The basis for personal immunities is to protect international relations by precluding avenues to interfere with high representatives without the consent of their sending state. As the ICJ set out in Arrest Warrant Case (paras 53-55), it is granted to ensure effective performances of functions of high representatives for the benefit of their respective States. ‘Even the mere risk that by travelling to or transiting another State [high representatives] might be exposing [themselves] to legal proceedings could deter [them] from travelling internationally when required to do so for the purpose of the performance of [their] official functions.’ It matters not whether this risk stems from prosecutions before national or international courts, it will hamper the ability of sitting heads of states to carry out their official functions, including potential peace negotiations. Attempting to sidestep personal immunities by arguing that an international court is not a state is a superficial argument. An international court is a creation of states. If individual states do not have the power to ignore the personal immunity of a third state without consent, a limited group of states acting together cannot create an international court and confer upon it a power that they do not possess.
Furthermore, the said ICJ para 61(4) is an obiter dictum lacking any detailed analysis to deliver such a conclusion. It is highly unlikely that the ICJ intended such far reaching consequences, but simply omitted to qualify the proposition appropriately as this was unnecessary for adjudicating the issues in that case i.e., the immunity of a foreign minister before a foreign national court. The ICJ did not hear submissions from the parties on the issue of immunities before international courts.
Without proper consideration of all relevant aspects of the judgment, the dictum could potentially drastically and incorrectly restrict immunities under international law. Thus, the sub-paragraph must be read with the preceding paragraphs to reveal the most appropriate interpretation. In considering the preceding paragraphs, the ICJ first acknowledged that none of the decisions or statutes of the Nuremberg and Tokyo tribunals, the ICTY, the ICTR, the ICC or the international conventions on the prevention and punishment of certain serious crimes affect the immunities of a serving minister of foreign affairs before a foreign national court with respect to international crimes under customary international law (paras 58-59).
The ICJ then addressed an apparent concern that its ruling may lead to impunity for some officials by emphasising that immunity from jurisdiction enjoyed by an incumbent foreign minister does not mean that the individual enjoys impunity. While jurisdictional immunity may bar prosecution for a certain period of time or for certain offences, it cannot exonerate the individual from all criminal responsibility (para 60). The ICJ then set out certain circumstances where immunities of incumbent or former foreign ministers will not bar a criminal prosecution, including: before the courts of the state of the said minister; if the state the minister represents decides to waive that immunity; when the individual ceases to hold that office; before the ICJ moved on to the fourth example set out in the disputed sub-paragraph relied on by the SCSL and ICC.
Considering that the fourth example begins with ‘... an incumbent or former Minister… may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction…’, it is arguably clear from the emphasised words that the ICJ was not suggesting that if a court can be termed ‘international’ it may ignore the personal immunities of officials, as interpreted by the SCSL and the ICC. The more plausible interpretation is that this subparagraph was simply part of a list of possible avenues for recourse against impunity. The ICJ was observing that there are international courts with power to supersede personal immunities in accordance with known principles of law such as state waiver by treaty as in the case of the RS or the exercise of Chapter VII UN Charter powers by the UNSC in the cases of the ICTY and ICTR.
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James Onalaja practises in domestic and international criminal law and human rights from 187 Chambers, Temple. He is appointed to the Lists of Counsel at the International Criminal Court and the Kosovo Specialist Chambers in the Hague and Chaired the International Criminal Court Bar Association’s Amicus Committee 2022/23.
It has been challenging to witness the catalogue of horrors unfolding in Ukraine, with a permanent member of the UN Security Council (UNSC) blatantly and grossly violating a fundamental principle of the UN Charter prohibiting the use of force against another state’s territorial integrity and political independence, with mounting alleged war crimes and crimes against humanity returning to the heart of Europe. There is little doubt that Putin’s ‘special military operation’ is a war of aggression. Thus, the International Criminal Court (ICC) Office of the Prosecutor (OTP) opening a preliminary investigation into the situation was unsurprising. What was surprising was the speed in which the Pre-Trial Chamber (PTC) issued arrest warrants, for Putin alongside his Children’s Rights Commissioner, Maria Levov-Belova on 17 March 2023.
In issuing the warrants for Levov-Belova and Putin, the PTC found that there were reasonable grounds to believe that both bear criminal responsibility for the unlawful transfer of Ukrainian children from occupied Ukraine to Russia, contrary to Article 8(2) of the Rome Statute (RS), with many processed into adoption in Russia, following Putin’s presidential decrees expediting conferral of Russian citizenship on them, making their adoption by Russian families easier. These allegations are likely to be the tip of the iceberg emerging from the Hague.
While not a party to the RS, following Ukraine lodging declarations with the Court’s Registrar under Article 12(3) RS on 17 April 2014 and 8 September 2015, accepting the ICC’s jurisdiction into allegations of war crimes, crimes against humanity and genocide committed on its territory since 21 November 2013, it is clear the ICC may exercise its jurisdiction over the situation, save re: allegations of crimes of aggression which the ICC has no jurisdiction with respect to Ukraine (see Article 15 bis). As a result, Ukraine is under the same obligation as state parties under Article 86 RS to cooperate with the court and be bound by its statute with respect to that situation, including the Article 27 impact on the immunity of its head of state and high officials.
The ICC requires all states parties to immediately execute Putin’s arrest warrant if he were to set foot on their territory and surrender him to the Court, in light of its Appeal Chamber’s decision in Prosecutor v Al-Bashir – Jordan Referral [2019] AC No.ICC 20/05-01/09 OA2 (‘Al-Bashir’). South Africa, hosting this August’s gathering of BRIC leaders (to which Putin was invited) wrestled with this predicament, and was only spared the consequences of this dilemma by Putin’s decision to attend via video link. Putting to one side the practical difficulties of executing a warrant to arrest the President of a UNSC permanent member and largest nuclear power, to what extent is the ICC jurisprudence on this issue founded on solid ground?
It is an established principle of customary international law that certain current holders of high-ranking offices of state, such as heads of state or governments and foreign ministers enjoy immunities from civil and criminal jurisdiction in foreign states: Arrest Warrant Case of 1 April 2000 Congo v Belgium Merits (‘Arrest Warrant Case’) [2002] ICJ Rep 3, para 51. This personal immunity ensures the effective performance of their functions on behalf of their respective states. Therefore, throughout the duration of Putin’s term of office, he ordinarily enjoys full immunity from criminal jurisdiction and inviolability (see para 53).
Putin’s attendance of international summits such as BRICS are part of his functions as president. However, personal immunities enjoyed by heads of states are more wide-ranging than those enjoyed by diplomats or ordinary functional immunity. It applies irrespective of whether Putin is travelling outside Russia for state or private purposes. Thus, there is no distinction between alleged criminal acts performed in his official capacity or in a private capacity and irrespective of when they occurred (Arrest Warrant Case paras 54-55; Certain Question of Mutual Assistance in Criminal Matters (Djibouti v France), ICJ Report 2008, 177, para 170). As his immunity belongs to the Russian Federation ordinarily, only the Russian State may waive it (Article 32, Vienna Convention on Diplomatic Relations).
This is different to functional immunity, which is linked to the maxim of sovereign equality that a state’s policies and actions cannot be judged without the consent of that state. Functional immunity only protects conduct carried out on behalf of a state by those who carry out state functions and remain attached to the act even after the official has left office. Alleged criminal acts carried out in a private capacity will not be barred from prosecution by functional immunity.
In line with R v Bow Street Magistrate, ex parte Pinochet (No. 3) [1999] 2 All ER 97, HL, an exception to the protection provided by functional immunity has emerged with respect to certain international crimes. While torture and other serious international crimes, may not be ranked (for functional immunity purposes) as official functions due to their jus cogens character, whether their prosecutions will be barred by functional immunities or not is irrelevant with respect to a sitting head of state such as Putin. As Lord Browne-Wilkinson stated in Pinochet (No. 3): ‘[t]his immunity enjoyed by a head of state in power... is a complete immunity attached to the person of the head of state… and rendering him immune from all actions or prosecutions...’ (pp 201-202). Furthermore, it is clear from the ICJ’s ruling in the Arrest Warrant Case (paras 58-59) that the fact that Putin is alleged to have committed international crimes will not provide an exception under customary international law to the rule re: his personal immunity.
The ICC-AC, however, concluded in the Al-Bashir Appeal (paras 113-119) that there is neither state practice nor opinion juris supporting the existence of head of state immunity under customary international law vis-à-vis an international court. This conclusion is based on several misapprehensions.
Firstly, the ICC-AC incorrectly concluded that statutes of previous international criminal tribunals provided evidence in support of this (paras 103-108). Article 7 of the Charter of the International Military Tribunal for Nuremberg states: ‘The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment’. A similar provision was reproduced at Articles: 6 of the Charter of the International Military Tribunal of Tokyo; 7(2) of the International Criminal Tribunal for the Former Yugoslavia (ICTY); 6(2) of the International Criminal Tribunal for Rwanda (ICTR) and of the Special Court for Sierra Leone (SCSL) statutes.
Clearly, these provisions simply remove the applicability of the defence of official capacity in relation to allegations before these international tribunals, i.e., arising from functional immunities. It is erroneous to conclude that they support a conclusion of the existence of an exception under customary international law to the principle of a sitting head of state’s personal immunity before international criminal tribunals. There is a difference between substantive defences and procedural bars to prosecution under which personal immunities must fall. As acknowledged by the ICJ in the Arrest Warrant Case (para 60), immunity from jurisdiction is not the same as responsibility for the alleged crime.
The ICC-AC in Al-Bashir (para 109) further relied on the now infamous para 61(4) of the Arrest Warrant Case decision and the SCSL Appeal Chamber (AC) decision in Prosecutor v Charles Taylor: Decision on Immunity (‘Taylor Case’) Case No. SCSL-2003-01-I, Appeal Chamber, 31 May 2004, relying on the same, where the ICJ stated that: ‘an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda, established pursuant to Security Council resolutions under Chapter VII of the United Nations Charter, and the future International Criminal Court created by the 1998 Rome Convention. The latter’s statute expressly provides, in Article 27, para 2, that “[i]mmunities 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”.’
Relying on this paragraph in the Taylor Case (paras 51-52), the SCSL-AC similarly concluded that there was now an established norm that the principle of sovereign equality of states which derives the principle of state immunity will not prevent a head of state from prosecution before an international criminal tribunal as it has no relevance as international criminal tribunals are not state organs but derive their mandate from the international community (Al-Bashir paras 109-115).
However, this is misconceived re: a sitting head of state. The principle of sovereign equality is the rationale for functional immunity, it is not the basis for personal immunity as applicable to a sitting head of state. The basis for personal immunities is to protect international relations by precluding avenues to interfere with high representatives without the consent of their sending state. As the ICJ set out in Arrest Warrant Case (paras 53-55), it is granted to ensure effective performances of functions of high representatives for the benefit of their respective States. ‘Even the mere risk that by travelling to or transiting another State [high representatives] might be exposing [themselves] to legal proceedings could deter [them] from travelling internationally when required to do so for the purpose of the performance of [their] official functions.’ It matters not whether this risk stems from prosecutions before national or international courts, it will hamper the ability of sitting heads of states to carry out their official functions, including potential peace negotiations. Attempting to sidestep personal immunities by arguing that an international court is not a state is a superficial argument. An international court is a creation of states. If individual states do not have the power to ignore the personal immunity of a third state without consent, a limited group of states acting together cannot create an international court and confer upon it a power that they do not possess.
Furthermore, the said ICJ para 61(4) is an obiter dictum lacking any detailed analysis to deliver such a conclusion. It is highly unlikely that the ICJ intended such far reaching consequences, but simply omitted to qualify the proposition appropriately as this was unnecessary for adjudicating the issues in that case i.e., the immunity of a foreign minister before a foreign national court. The ICJ did not hear submissions from the parties on the issue of immunities before international courts.
Without proper consideration of all relevant aspects of the judgment, the dictum could potentially drastically and incorrectly restrict immunities under international law. Thus, the sub-paragraph must be read with the preceding paragraphs to reveal the most appropriate interpretation. In considering the preceding paragraphs, the ICJ first acknowledged that none of the decisions or statutes of the Nuremberg and Tokyo tribunals, the ICTY, the ICTR, the ICC or the international conventions on the prevention and punishment of certain serious crimes affect the immunities of a serving minister of foreign affairs before a foreign national court with respect to international crimes under customary international law (paras 58-59).
The ICJ then addressed an apparent concern that its ruling may lead to impunity for some officials by emphasising that immunity from jurisdiction enjoyed by an incumbent foreign minister does not mean that the individual enjoys impunity. While jurisdictional immunity may bar prosecution for a certain period of time or for certain offences, it cannot exonerate the individual from all criminal responsibility (para 60). The ICJ then set out certain circumstances where immunities of incumbent or former foreign ministers will not bar a criminal prosecution, including: before the courts of the state of the said minister; if the state the minister represents decides to waive that immunity; when the individual ceases to hold that office; before the ICJ moved on to the fourth example set out in the disputed sub-paragraph relied on by the SCSL and ICC.
Considering that the fourth example begins with ‘... an incumbent or former Minister… may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction…’, it is arguably clear from the emphasised words that the ICJ was not suggesting that if a court can be termed ‘international’ it may ignore the personal immunities of officials, as interpreted by the SCSL and the ICC. The more plausible interpretation is that this subparagraph was simply part of a list of possible avenues for recourse against impunity. The ICJ was observing that there are international courts with power to supersede personal immunities in accordance with known principles of law such as state waiver by treaty as in the case of the RS or the exercise of Chapter VII UN Charter powers by the UNSC in the cases of the ICTY and ICTR.
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In the first of a two-part series considering whether the ICC’s approach is unlawful, James Onalaja explores the issued warrant for sitting heads of state and argues that this is based on a catalogue of misconceptions
Sam Townend KC explains the Bar Council’s efforts towards ensuring a bright future for the profession
Giovanni D’Avola explores the issue of over-citation of unreported cases and the ‘added value’ elements of a law report
Louise Crush explores the key points and opportunities for tax efficiency
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