From times of the Nuremburg trials, there is an impression that the dispute on immunity for Heads of States was never at play. This can be partly explained by the fresh chilling effect the horrendous crimes committed some countries. The atmosphere was still covered with thick smoke of bitter Second World War memories which is not present in the current circumstances in terms of scale, impact and international engagement. Indeed allies had planned to bring to justice Adolf Hitler who was the Head of State of Germany for crimes under international law even when its doubted that he was still alive, an opportunity that his deputy Karl Doenitz the new head of state of Germany did not miss.1.
Where as it has been argued that the Nuremburg trials had under currents of victor -vanquished prejudices, it for the first time recognized that immunity for a head of state was not a tenable defense for crimes such as the ones that were alleged to have been committed by Germany and allies. Indeed the Nuremburg Charter provided thus;
“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.”2
The emotions and general feeling of people on the issue of immunity of Heads of State indicted for these crimes that was ornately articulated by Justice Robert H.Jackson:
“Nor should such a defense be recognised as the obsolete doctrine that a head of State is immune from legal liability. There is more than a suspicion that this idea is a relic of the doctrine of divine right of kings. It is, in any event, inconsistent with the position we take toward our own officials, who are frequently brought to court at the suit of citizens who allege their rights to have been invaded. We do not accept the paradox that legal responsibility should be the least where power is the greatest. We stand on the principle of responsible government declared some three centuries ago to King James by Lord Chief Justice Coke, who proclaimed that even a King is still ‘under God and the law'”3.
Robert Jacksons philosophy was that immunity for high ranking officials both real or imagine was one of the causes of wide spread impunity and that is need to be mitigated for the purposes of limiting future tendencies of officials of the state acting with impunity and reckless abandon because of the perceived immunity and protection from liability .This seemed to be a central issue in process leading to the drafting of the Rome Statute on ICC borrowing from the Nuremburg Experience.4 No wonder, when the foregoing article 7 is mirrored against the Article 27 of the Rome Statue one would clearly argue that the framers of the latter had clear intentions of ridding on the wave of the Nuremberg charter that seemed to have fizzled in between periods of two statues.
Therefore, the case of President Bashir should be interpreted with in the wider context of historical desire to bring to book all persons accused of international crimes irrespective of their status, and the Pinochet case5 gives insights on how international community even before birth of ICC was already in motion to acknowledge that immunities may have some exceptions particularly if the crimes against any one are those prohibited under international law.
This is particularly important, because it is irrational to imagine that a state in itself can commit crimes without involvement of individual who make decisions after summoning their own individual minds. It cannot be said that actually crimes such as genocide and other crimes against humanity can be part of public policy or state duties so as to entitle the offending individual immunity. To this, state parties have enacted laws that operationalised the Rome Statute in totality thereby making a commitment to adopt and implement the underlying principles as part of municipal law.6
It has been argued by Professor Crawford7 that State immunity is a rule of international law that aids execution of public functions of the state and its representatives by protecting them from both civil and criminal liability in foreign courts and hence it prevents the Courts of the forum state from applying judicial sanctions and asserting jurisdiction in certain classes of cases but not all in which a foreign state is a party. Accordingly, he argues that State immunity is merely procedural bar but not a substantive defense based on the standing and functions of the state or official in issue. It is his contention that ultimate application of immunity as part of international law is largely dependent on rules and the procedure of the forum state’8.
It is argued therefore while the argument that immunity for heads of state has exceptions in international law, it remains a contentious matter that remains unresolved to date. The historical perspectives from the days of the Nuremburg trials and the Rome Statute show that this exception should be applied to curb impunity .My thinking is that political leaders and international public policy actors who in most cases are beneficiaries of such immunity have not embraced this idea largely for self preservation as opposed to the desire to promote justice.
Omar Bashir indictment and International politics
Ridding on the good will of member states and general acceptance of the Rome Statute, ICC’s actions in the cases of Bashir, Ghadaffi, Laurent Gbagbo and Uhuru-Kenyatta seemed to have awakened hitherto unbothered African leaders to the reality that ICC ready to deal with anyone including any culpable Head of State. It is not fair for anyone to heap blame on the ICC for this, because allegations against the mentioned Heads of State cropped up nearly at the same time, and therefore the alleged ‘witch hunt’ is purely coincidental.
All active cases by 2011 were all revolving around crimes committed on African continent and this is largely because the intervention of court was solicited for by respective countries example Uganda referred the case of Joseph Kony in Northern Uganda in 2003; Democratic Republic of Congo invited ICC to probe atrocities in Eastern Congo and in 2005 ICC received a request from Central African Republic culminating into arrest and detention of Jean Pierre Bemba.9 What remains undisputed though is that such a move pushed more than three powerful Heads of State to the corner thereby it triggering a backlash from the continent.
The ICC prosecutor remained focused and uncompromising on the issue of Bashir and other sitting Heads of State which rubbed African states the wrong way. A continental block which provided the earliest proponents of the ICC was soon to be entangled in a bitter split, thereby turning the hitherto relationship of love10 into hate11 with in a shortest time.
One would argue that the willingness for African leaders to embrace the ICC was buttressed in the thinking at that time that ICC would help them deal with perceived and real political opponents in their own states12 .To this they imagined that since States were mandated to have jurisdiction to refer cases in their own territories to ICC,Heads of States and other officials friendly to the Power that are would be protected and hence a move by the United Nations Security Council to swing into action was not anywhere in their contemplation from the onset.
The indictment of Bashir ignited a wave of defiance in Africa as countries moved assert themselves to protect the immunity for Heads of State and ‘state sovereignty’.
Members of African union (AU) started mobilizing amongst themselves to defeat the arrest warrant against Bashir and on 21st July 20108 AU Peace and Security Council (PSC) issued a communiqué stating:
“in accordance with Article 16 of the Rome Statute of the ICC, to defer the process initiated by the ICC, taking into account the need to ensure that the ongoing peace efforts are not jeopardized, as well as the fact that, in the current circumstances, a prosecution may not be in the interest of victims and justice.”13
This was brought to the attention of the Security Council but did not bring forth results that had been anticipated by the most members of the African Union .This provoked the African Union which boasted of 34 ICC member states at that time to push through a unanimous resolution calling for all African countries pullout from the ICC in solidarity with African leaders who were indicted.
It should be noted that the communiqué and indeed most arguments around ICC among African leaders are not so much inclined into the legalities of the immunity of the Head of State or lack of it, but rather that they view the ICC arrangement as tool for suppression of state sovereignty and a rise of some new form of imperialism by powerful states against small states. That is not surprising, because countries which had earlier ratified or domesticated the Rome Statue didn’t not make any effort through domestic legal processes to question the validity of immunity of Heads of State, if they became subject of the international criminal court.
The biggest concern has been how to reverse gains so far registered under the Security Council referral and Article 27 of the Rome Statue .This can be evidenced from the deliberations from various meetings by State Parties which it was resolved inter alia that;
” Articles 27 and 98 of the Rome Statute should be discussed by the Assembly of States Parties under the agenda item “stock taking” in order to obtain clarification on the scope and application of these Articles particularly with regard to non States Parties. In this regard, there is need to clarify whether immunities enjoyed by officials of non states parties under international law have been removed by the Rome Statute or not.”14
It seems to me that Article 27 that waives immunities has unsettled leaders around the world and yet in my view this remains a very important aspect of the Rome Statue and if tampered with will diminish the relevancy of the treaty.
1 Telford Taylor, The Anatomy of the Nuremberg Trials (New York: Alfred A. Knopf 1992), p. 38-86). See also the Judgment of the Nuremberg International Military Tribunal 1946 (1947) 41 AJIL 172
2 Article 7 of Nuremburg Charter United Nations General Assembly 1946 (Resolutions 95(1)
3 Robert H.Jackson , Report to President Truman on the Legal Basis for Trial of War Criminals”, Temp. L.Q. (1946), 19, p. 148).
4 Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN GAOR, 51st Sess., Supp. (No. 22), UN Doc. A/51/22 (1996), para. 193).
5 Rv Bow Street Metropolitan Stipendiary Magistrate and Others, Exparte Pinochet Ugarte ibid 16
6 International Criminal Court Act, 2010, Laws of Uganda.
7 James Richard Crawford is a distinguished academician and practitioner in the field of international law
8 James Crawford Brownlie’s Principles of Public International Law 8 ed (2012) (Brownlie) at 487- 488.
9 Kurt Mills ‘Bashir is Dividing Us”: Africa and the International Criminal Court Human Rights Quarterly, Volume 34, Number 2, May 2012, pp. 404-447 (Article) Published by Johns Hopkins University Press
10 United Nations. 1999. Senegal first State to ratify Rome Statute of International Criminal Court. Press release
L/2905. Rome: United Nations. October 2016: www.un.org/press/en/1999/19990203.l2905.html. Accessed on 5th January 2018
11 Burundi’s notification to the UNSG here: https://treaties.un.org/doc/Publication/CN/2016/CN.805.2016-Eng.pdf. Accessed Two motions were approved in Kenya’s Parliament (in 2013 and June 2016) backing Kenya’s withdrawal from the ICC but the Cabinet is yet to deliberate on the matter. Gambia, Kenya and South African have initiated such moves.
12 https://www.globalpolicy.org/international-justice/the-international-criminal-court/icc-investigations/uganda.html accessed on 5th January 2018.It should be noted that President Museveni of Uganda was very enthusiastic about ICC as he believed it would help apprehend Joseph Kony of the Lord’s Resistance Army which committed many atrocities in the northern part of Uganda for over 20 years.
13 AU Peace and Security Council Communiqué PSC/Min/Comm(CXLII) 21 July 2008.
14 Report of the 2nd Ministerial Meeting on the Rome Statute of the International Criminal
Court (ICC), 6 Nov. 2009, A.U. Doc. Min/ICC/legal/Rpt.(II).