Head of State Immunity before
International Courts
An assessment of the ICC Appeal Chambers Customary International Law
Argument in the Jordan Referral re Al-Bashir Appeal
Name: Robin de Rijk Student ID: 10897534 E-mail: robinderijk95@gmail.com Supervisor: Rosanne van Alebeek Master track: Public International Law Date of Submission: 31 December 2019 Word count: 13.225
Abstract
Head of State (HoS) immunity before domestic courts is an uncontested rule within customary international law, however, its applicability before international courts has been the cause of much debate. This thesis critically analyzes the most recent judgment—Jordan Referral re Al-Bashir Appeal case—which discusses the existence of HoS immunity before international courts. The Appeals Chamber (AC) controversially reasons that HoS immunity under customary international law never developed vis-a-vis international courts, basing its reasoning on a fundamental difference between international and domestic courts under the par in parem
non habet imperium rationale. Following a critical assessment, this thesis concludes that: 1) the
AC wrongly identifies the rationale behind HoS immunity, and 2) the AC wrongly finds a fundamental difference between international and domestic courts. Building upon this, the thesis argues that an international court exception to HoS immunity must be established under customary international law, if international courts, like the ICC, wish to effectively exercise jurisdiction. Following a preliminary analysis of both State practice and opinio juris and the most frequently cited evidence for an international court exception, it will be established that such an exception does not yet exist. In sum, contrary to the conclusion drawn by the AC, HoS continue to enjoy HoS immunity before international courts.
Table of Contents
List of Abbreviations 3
Table of Cases 4
Table of Legislation 6
1. Introduction 7
2. No Head of State Immunity before International Courts: New Rule or Exception 9
2.1. Reasoning of the Appeals Chamber 9 2.2. The Rationale behind Head of State Immunity 11
2.2.1. State Immunity 11
2.2.2. Diplomatic Immunity 11
2.2.3. Head of State Immunity 12
2.2.3.1. Par in parem non habet imperium rationale 12
2.2.3.2. Functionality Rationale 13
2.2.3.3. Dual-Rationale 15
2.3. Methods for Identifying Customary International Law 16
2.3.1. Induction 17
2.3.2. Deduction 18
2.4. The “Fundamental Difference” Argument 20 2.4.1. A Fundamental Difference under the Functionality Rationale 20 2.4.2. A Fundamental Difference under the par in parem non habet imperium rationale 22
2.4.2.1. Defining an International Court 23
2.4.2.2. Defining the International Community 25
2.5. Sub-conclusion 26
3. An International Court Exception to Head of State Immunity 27
3.1. Nuremberg Trials & Nuremberg Principle III 28 3.2. UNSC-mandated ad hoc tribunals 30 3.3. Former cases against Heads of State 32
3.4. State Behavior 34
3.5. Sub-conclusion 36
4. Conclusion 37
Bibliography 39
List of Abbreviations
AC Appeals Chamber
AU African Union
BYIL British Yearbook of International Law CJIL Chinese Journal of International Law Colum L Rev Columbia Law Review
Crim LF Criminal Law Forum
Duke LJ Duke Law Journal
EJIL European Journal of International Law Hastings LJ Hastings Law Journal
HoS Head(s) of State
ICC International Criminal Court ICJ International Court of Justice
ICTY International Criminal Tribunal for the former Yugoslavia ICTR International Criminal Tribunal for Rwanda
ILC International Law Commission
Int CLR International Criminal Law Review ISR International Studies Review ISS Institute for Security Studies
JICJ Journal of International Criminal Justice
LPICT Law and Practice of International Courts and Tribunals
PTC Pre-Trial Chamber
NATO North Atlantic Treaty Organization SCSL Special Court for Sierra Leone
UN United Nations
UNGA United Nations General Assembly UNSC United Nations Security Council
VCDR Vienna Convention on Diplomatic Relations VCLT Vienna Convention on the Law of Treaties
Table of Cases
Asylum Case (Colombia v Peru) (Judgment) [1950] ICJ Rep 299
Barcelona Traction, Light and Power Company, Limited (Judgment) [1970] ICJ Rep 3 Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area
(Judgment) [1984] ICJ Rep 246
Case Concerning the Arrest Warrant of 11 April 2000 (Judgment) [2002] ICJ REP 3\ Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 4
Continental Shelf (Libyan Arab Jamahiriya/Malta) (Judgment) [1984] ICJ Rep 3
Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir (Decision) [2011] ICC-02/05-01/09
Decision under article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender or Omar Al-Bashir (Decision) [2017] ICC-02/05-01/09-309
Decision under article 87(7) of the Rome Statute on the non-compliance by South Africa with the request by the Court for the arrest and surrender of Omar Al-Bashir (Judgment) [2017] ICC-‐ 02/05-‐ 01/09
Jordan Referral re Al-Bashir Appeal [2019] (Judgment) ICC-02/05-01/09 OA2 Joint Concurring Opinion
Transcript of Hearing (2018) Questions and Answers
Fannie P Dujay, Executrix of the Estate of Gilbert F Dujay (USA) v United Mexican States (Decision) [1929] 4 UNRIAA 449
Jones v. Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) and others (Judgment) [2016] UKHL 26
Lafontant v. Aristide (Judgment) [EDNY 1994] 844 F. Supp. 128
Maritime Delimitation and Territorial Questions between Qatar and Bahrain, (Judgment) [2001] ICJ Rep 40
North Sea Continental Shelf Cases (Judgments) [1969] ICJ Rep 3 Dissenting Opinion Judge Tanaka
Prosecutor v. Charles Ghankay Taylor (Judgment) [2012] SCSL-03-1-T
Prosecutor v Krstic (Dissenting Opinion of Judge Shahabudeen) [2003] IT-98-33-A
Reparations for Injuries Suffered in the Service of the United Nations, (Advisory Opinion) [1949] ICJ Rep 174
Schooner Exchange v. M`Faddon Others (Judgment) [1812] 11 US 116
Table of Legislation
Charter of the International Military Tribunal (adopted en entered into force 8 August 1945) 82 UNTS 279
Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI
International Military Tribunal for the Far East Charter (adopted and entered into force on 19 January 1946) 1589 TIAS 20
Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (adopted on 27 June 2014) AFR 01/3063/2016
Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90
Statute of the International Court of justice (adopted 26 June 1945, entered into force 24 October 1945) 15 UNCIO 355
Vienna Convention on Diplomatic Relations (adopted 18 April 1961, entered into force 24 April 1964) 500 UNTS 95
Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331
Other
ILC, ‘Formulation of the principles recognized in the Charter of the Nurnberg Tribunal and in the judgment of the Tribunal’ (1949) Un Doc A/CN.4/5
UNSC Resolution 827 (1993) UN Doc S/RES/827 UNSC Resolution 955 (1994) UN Doc R/SES/995
1. Introduction
Last year marked twenty years since the adoption of the Rome Statute and the establishment of the ICC. One of its aims is to “put an end to impunity [and] to contribute to the prevention of [grave international] crimes”.1 This aim is essential yet ambitious. The ICC has been endowed with both territorial and active personality jurisdiction2 as well as jurisdiction over cases which are referred to it via the UNSC.3 The main perpetrators of such large-scale atrocities have been HoS who enjoy personal immunity. This impacts the ability of the ICC to exercise its jurisdiction. The drafting States enabled the ICC to maneuver around this issue by including article 27(2) in the Rome Statute. Article 27(2) reads as follows: “[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”.4 However, in accordance with the pacta tertiis principle, which is codified in article 34 VCLT, non-party States cannot be bound by articles of the Rome Statute without consenting to them.5 Thus, restrictions on the ICC’s ability to exercise its jurisdiction remain when the perpetrator is a national of a non-party State who benefits from and can invoke personal immunity. The most direct way to circumvent the pacta tertiis principle in such cases is by identifying that rules, like article 27(2), are part of customary international law.6
The tension between HoS immunity and the ICC’s ability to exercise jurisdiction is highlighted in the case against Omar Al-Bashir, the former President7 of non-party State Sudan. The arrest warrants8 against him have neither strong-armed Sudan into surrendering Al-Bashir nor ensured State party compliance in his arrest and surrender. The most recent non-compliance case has been against Jordan, which failed to arrest and surrender Al-Bashir during the 28th summit of the Arab League.9 The PTC held that article 27(2) is not applicable to Al-Bashir,
1 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187
UNTS 90 (Rome Statute), preamble.
2 ibid, art 12. 3 ibid, art 13. 4 ibid, art 27(2).
5 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155
UNTS 331 (VCLT), art 34.
6 ibid, art 38.
7 Al-Bashir stepped down as HoS on 11 April 2019 following a military coup.
8 The warrants for arrest were issued on 4 March 2009 and 12 July 2010 (respectively) and are for five charges
of crimes against humanity, two charges of war crimes and three charges of genocide. See ICC, 'Alleged crimes (non-exhaustive list)' (International Criminal Court) <https://www.icc-cpi.int/darfur/albashir/pages/alleged-crimes.aspx> accessed 11 November 2019.
since Sudan is not a party to the Rome Statute. Instead, Al-Bashir’s immunity is implicitly revoked through the UNSC resolution.10 Jordan appealed this decision.
On 6 May 2019, the AC issued its judgment. The AC focuses principally on a customary international law avenue. Concluding that article 27(2) is best read as reflecting customary international law, since HoS immunity does not extend vis-a-vis international courts.11 If the customary international law avenue is indeed open, it enables the ICC to circumvent the pacta
tertiis principle, making article 27(2) applicable to non-party States. It could open doors for
international criminal law and be a step forward in combating impunity, since international courts would no longer be hampered by immunity in exercising jurisdiction. Thus, from an ethical and humane perspective, inapplicability of HoS immunity before international courts should be welcomed. Contrarily, if the customary international law avenue is not open, the judgment may be met with opposition. This could negatively impact the authority of the ICC and result in a digression for international criminal law. Since the judgment has met criticism12, it is important to assess the reasoning of the AC.
Consequently, this thesis will address two related but distinct issues.13 First, it will assess whether the customary international law argument of the AC in the Jordan Referral case is in accordance with the theory of customary international law identification. This thesis will argue that it is not and that the exception, rather than the immunity, should be established through the process of custom identification. Second, this thesis will build upon the previous assessment and address whether an exception to HoS immunity in relation to international courts has developed in customary international law.
10 Decision under article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender or Omar Al-Bashir (Decision) [2017] ICC-02/05-01/09-309 (Jordan). 11 Jordan Referral (Judgment) (n 9).
12See for instance Asad Kiyani, ‘Elisions and Omissions: Questioning the ICC’s Latest Bashir Immunity
Ruling’ (Just Security, 8 May 2019) https://www.justsecurity.org/63973/elisions-and-omissions-questioning-the-iccs-latest-bashir-immunity-ruling/> accessed 10 September 2019; Ben Batros, ‘A Confusing ICC Appeals Judgment on Head-of-State Immunity‘ (Just Security, 7 May 2019) <https://www.justsecurity.org/63962/a-confusing-icc-appeals-judgment-on-head-of-state-immunity/> accessed 8 September 2019; Claus Kress, ‘Preliminary Observations on the ICC Appeals Chamber’s Judgment of 6 May 2019 in the Jordan Referral re Al-Bashir Appeal’ [2019] Occasional Paper Series No. 9 1; Dapo Akande, ‘ICC Appeals Chamber holds that Head of State have no Immunity under Customary International Law before International Tribunals’ (Ejil: Talk!, 6 May 2019) <https://www.ejiltalk.org/icc-appeals-chamber-holds-that-heads-of-state-have-no-immunity-under-customary-international-law-before-international-tribunals/> accessed 12 September 2019.
13 In its judgment the AC also touches upon two other issues: 1) the vertical and horizontal applicability of
article 27 and 2) the UNSC Resolution argument. While both issues require further analysis, such analyses cannot be conducted within the scope of this thesis. Instead the choice was made to focus solely on HoS immunity under customary international law vis-a-vis international courts.
This thesis will primarily engage in a critical analysis of the AC’s reasoning, which will be done through a literature review using a combination of primary and secondary sources. Additionally, it will engage in a preliminary assessment of a potential international court exception to HoS immunity under customary international law, which will be conducted through mainly primary sources and some secondary sources. To achieve this, the thesis has been divided into two main chapters, with each chapter answering an individual research question. The first chapter will assess the customary international law argument of the AC. The second chapter will assess whether an international court exception to HoS immunity under customary international law exists.
2. No Head of State Immunity before International Courts:
New Rule or Exception
2.1. Reasoning of the Appeals Chamber
Although the issue in the Jordan case did not directly touch upon customary international law, the AC in the Jordan Referral case found it necessary to determine whether HoS enjoy immunity before international courts under customary international law.14 Below, the reasoning of the AC is set out.
The AC asserts that HoS immunity under customary international law “[prevents] one State from exercising its criminal jurisdiction over the [HoS] of another State”.15 Yet, the AC limits such immunity to the “relation between States”16, thereby, indicating that HoS immunity does not apply between States and other entities. The AC confirms this indication by concluding that, “article 27(2) [...] reflects the status of customary international law”17, since HoS immunity under customary international law never developed vis-a-vis international courts. Subsequently, “such immunity has never been recognized in international law as a bar to the jurisdiction of an international court”.18 Thus, while some argue HoS immunity is applicable before international courts, the AC, controversially,19 argues that it is not. Instead,
14 Jordan Referral (Judgment) (n 9), para 98. 15 ibid, para 101.
16 ibid, para 101. 17 ibid, para 103. 18 ibid, para 113.
19 See Dov Jacobs, 'You have just entered Narnia: ICC Appeals Chamber adopts the worst possible solution on
immunities in the Bashir case' (Spreading the Jam, 6 May 2019) <https://dovjacobs.com/2019/05/06/you-have-just-entered-narnia-icc-appeals-chamber-adopts-the-worst-possible-solution-on-immunities-in-the-bashir-case/> accessed 7 September 2019.
the AC asserts that there is a fundamental difference between international and domestic courts. It finds this fundamental difference through the following reasoning:
“While [domestic courts] are essentially an expression of a State’s sovereign power, which is necessarily limited by the sovereign power of the other States, [international courts], when adjudicating international crimes, do not act on behalf of a particular State or States. Rather, international courts act on behalf of the international community as a whole. Accordingly, the principle of par in
parem non habet imperium, which is based on the sovereign equality of States,
finds no application in relation to an international court such as the [ICC]”.20 This leads the AC to conclude the following:
“[G]iven the fundamentally different nature of an international court as opposed to a domestic court exercising jurisdiction over a [HoS], it would be wrong to assume that an exception to the customary international law rule on [HoS] immunity applicable in the relationship between States has to be established; rather, the onus is on those who claim that there is such immunity in relation to international courts to establish sufficient State practice and opinio juris”.21
In sum, the AC reasons that the par in parem non habet imperium principle is the rationale behind HoS immunity. From this the AC reasons that a fundamental difference exists between domestic and international courts, since the latter represents the international community and not individual States. Therefore, the rationale is no longer applicable. Due to this fundamental difference, the onus is placed on those who claim that HoS immunity in relation to international courts exists. Additionally, the AC finds that there is neither State practice nor opinio juris that would support such a claim. This leads to the conclusion that article 27(2) is best read as reflecting customary international law.
In the following subsections, this reasoning of the AC will be critically analyzed. Section 2.2 will define HoS immunity and its rationales. Here a second rationale for HoS immunity, different from the par in parem non habet imperium rationale, will be identified. Following this, section 2.3 will assess whether a fundamental difference exists between
20Jordan Referral (Judgment) (n 9), para 115. 21 ibid, para 116-117.
international and domestic courts as indicated by the AC. Moreover, the AC judgment often refers to the concurring opinion of the Jordan Referral case for further clarification and treats it as the majority view.22 Admittedly, this is quite strange. Nevertheless, due to the AC’s frequent references, this thesis will consider the concurring opinion in its analysis.
2.2. The Rationale behind Head of State Immunity
Before analyzing the AC’s reasoning, it is important to define HoS immunity and its rationale. The origin of HoS immunity can be traced back to the origin of State immunity, when the sovereign and the State were one and the same.23 Although HoS are now distinct from the State that they represent, they are still sometimes considered to be an incarnation of the State itself.24 Nonetheless, HoS immunity and State immunity are not synonymous. Namely, the former also resembles aspects of diplomatic immunity.25 To better understand HoS immunity it is important to briefly define State and diplomatic immunity.
2.2.1. State Immunity
State immunity evolved because of the establishment of the territorial State and its sovereignty.26 Its roots lie in the par in parem non habet imperium principle, which dates back as far as 1354.27 The principle establishes that no sovereign can have jurisdiction over another sovereign. Through State immunity a State enjoys both immunity in respect to itself and its property from the jurisdiction of foreign courts.28 Although State immunity used to be absolute in nature, it is now limited to acts done in the public capacity (juri imperii).29
2.2.2. Diplomatic Immunity
Diplomatic immunity is bestowed upon diplomatic agents of a State and can be traced back to ancient Greece and Rome where messengers or heralds were inviolable.30 Currently, the rules
22 Jordan Referral (Joint Concurring Opinion) (n 9). Specifically paragraphs 52 until 252 are treated as
reflections of the majority view.
23Michael Tunks, 'Diplomats Or Defendants? Defining The Future Of Head-Of-State Immunity' (2002) 52 Duke
LJ 651, 652.
24 Rosanne van Alebeek, The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law (OUP 2008).
25 Tunks (n 23), 652.
26 Peter-Tobias Stoll, 'State Immunity', Max Planck Encyclopedias of International Law (2011). 27 ibid.
28 ibid. 29 ibid.
on diplomatic immunity are codified in the VCDR and are mostly reflected in customary international law. Article 29 VCDR stipulates that diplomatic agents shall be inviolable and shall not be arrested or detained.31 Article 31 VCDR further specifies that diplomatic agents are always immune from criminal jurisdiction and are almost always immune from civil and administrative jurisdiction.32 Diplomatic agents, thus, enjoy immunity from acts conducted in both their official capacity (functional immunity) and private capacity (personal immunity).33 Diplomatic agents require these immunities to effectively execute their functions.34 The functionality rationale is reflected in article 39.2 VCDR, which specifies that immunities will seize once the functions of the diplomatic agent have come to an end.35 The functionality rationale was also supported by the Italian Constitutional Court which held that personal immunity was required for “the purpose of assuring in all cases that the diplomat may fulfil his duties”.36 Moreover, diplomatic agents only enjoy personal immunity “between the sending and the receiving State (as well as towards the State through which a diplomatic agent is passing on his way to or from the receiving State).”37 In addition, diplomatic immunity is derived from the State and, subsequently, this immunity will always belong to the State and not the individual.38 For that reason, States may waive the immunity of their officials if they so desire.
Having briefly defined State immunity and diplomatic immunity, this thesis will now turn to defining HoS immunity and its rationales.
2.2.3. Head of State Immunity
2.2.3.1. Par in parem non habet imperium rationale
The concept of HoS immunity stems from a time when sovereign monarchs held ultimate power and were considered legibus solutus.39 There was no distinction between the monarch
and the State itself, resulting in the absolute immunity of such sovereigns.40 Following the
31 Vienna Convention on Diplomatic Relations (adopted 18 April 1961, entered into force 24 April 1964) 500
UNTS 95 (VCDR), art 29.
32 VCDR, art 31.
33 Antonio Cassese, International Law (2nd edn, OUP 2005), 114. 34 ibid, 114.
35 VCDR, art 39.2.
36 Found in Cassese, ‘International Law’ (n 33), 114. 37 ibid, 116.
38 Tunks (n 23), 654.
39 Hersch Lauterpacht, ‘The Problem of Jurisdictional Immunities of Foreign States’, [1951] 28 BYIL 220, 232. 40 Udoka Ndidiamaka Nwasa, ‘Head of State Immunity in International Law’ (DPhil thesis, The London School
Peace of Westphalia in 1648, a distinction was made between the State and its sovereign.41 Even so, some argue that HoS continue to be the “personal manifestations of their States”.42 Thus, when HoS immunity was first discussed in 1812 in the Schoomer Exchange, the US Supreme Court held that sovereigns enjoy immunity as a consequence of the “perfect equality and absolute independence” of States.43 Similar language was reiterated in Marcos and Marcos
v. Federal Department of Police, where the Swiss court acknowledged HoS enjoy personal
immunity due to their status as a “symbolic embodiment of sovereignty”.44 This point of view is also reiterated in Oppenheim’s International Law, which notes that HoS immunity is only based in the par in parem non habet imperium rationale.45 In its reasoning, the AC also finds this to be the sole rationale behind HoS immunity.46 Nevertheless, due to the distinction between HoS and the State, HoS immunity cannot be completely defined by “principles of sovereign immunity”.47 Instead, as Jerold Mallory notes, “their immunity [should] be based on principles similar to diplomatic immunity”, since HoS perform ceremonial and diplomatic duties.48
2.2.3.2. Functionality Rationale
Some argue that the functionality rationale provides the basis for HoS immunity. There are after all quite some similarities between HoS and diplomatic immunity. HoS also enjoy both functional and personal immunity.49 As mentioned above, functional immunity refers to immunity from all acts conducted in the official capacity, while personal immunity refers to all acts conducted in the private capacity. Similarly to the rules of diplomatic immunity, HoS will enjoy lifelong functional immunity, while personal immunity is relinquished once a HoS leaves office.50 Furthermore, the State may always waive the immunity of a HoS.51 Already in 1986, Jerold Mallory held that HoS require immunity so that they are able to effectively execute their
41 ibid, 38.
42 van Alebeek, ‘The Immunity of States’ (n 24), 180
43 Schooner Exchange v. M`Faddon Others (Judgment) [1812] 11 US 116 (Schoomer Exchange), 11. 44 van Alebeek, ‘The Immunity of States’ (n 24), 180.
45 Robert Jennings & Arthur Watts, Oppenheim’s international law Vol. 1 Peace : introduction to part 1 (9th
edn, London etc. Longman 1992), para 499.
46 Jordan Referral (Judgment) (n 9).
47 Jerrold Mallory, 'Resolving the Confusion over Head of State Immunity: The Defined Rights of Kings' [1986]
Colum L Rev 169, 170.
48 ibid, 170.
49 Case Concerning the Arrest Warrant of 11 April 2000 (Judgment) [2002] ICJ REP 3 (Arrest Warrant), para
51.
50 ibid, para 61.
functions without “the threat or possibility of arrest or detention”.52 These functions are “extensive and all-encompassing” in nature and include “high-level diplomacy, negotiations, and [dispute settlement]”.53 The House of Lords in the Pinochet case highlighted that section 20 of the State Immunity Act 1978 reflects the wording of the VCDR.54 By analogy, this could mean that the rationale behind HoS immunity is functionality. Still, it was the ICJ in the Arrest
Warrant case which most directly affirmed the functionality rationale. It held that a Minister
of Foreign Affairs (or other high ranking officials, like HoS) are granted immunity not for their personal benefit but to “ensure the effective performance of their functions”.55 Moreover, the ICC’s PTC-II in the DRC case, recognized that HoS enjoy personal immunity to ensure the effective execution of their functions.56
The AC supports the par in parem non habet imperium rationale by completely dismissing this functionality rationale. In fact, the joint concurring opinion articulates that “the idea of [personal immunity] is not readily salvaged by the functional rationale”.57 In making this statement, the joint concurring opinion reasons that “no human being is indispensable in the life of a nation, by the mere virtue of occupying office as [HoS] or Government”.58 It refers, for instance, to situations of death or impeachment; both examples where the State is abruptly faced with the loss of their HoS.59 Correspondingly, there is no logic in the idea that a HoS would enjoy absolute personal immunity out of the need to “avoid disruption of tenure.”60 This reasoning indicates that the functionality rationale is irrelevant, since the State can still continue to function despite the arrest or surrender of a HoS. However, avoiding disruption of tenure is not the main reasoning behind the rationale.
Instead, HoS immunity enables HoS to execute their functions effectively, without fear of arrest, detention, or other treatment. Without this assurance HoS are more likely to stay at home preventing them from effectively engaging in international diplomacy.61 Consequently,
52 Mallory (n 47), 195.
53 Asad Kiyani, ‘Al-Bashir & the ICC: The Problem of Head of State Immunity’ [2013] Chin J Int 467, 472-473.
54 Andrea Bianchi, ‘Immunity versus Human Rights: The Pinochet Case’ [1999] EJIL 237, 240. 55 Arrest Warrant (n 49), para 53.
56 Michael Ramsden & Isaac Yeung, ‘Head of State Immunity and the Rome Statute: A Critique of the ptc’s
Malawi and drc Decisions’ [2016] IntCLR 703, 714.
57Jordan Referral (Joint Concurring Opinion) (n 9), para 181. 58 ibid, para 183.
59 ibid, para 183. 60 ibid, para 184. 61 Tunks (n 23), 656.
the system of peaceful cooperation and co-existence among States cannot be guaranteed.62 An example of this is the fact that the Israeli Prime Minister Ariel Sharon did not visit the European Union Headquarters when Belgium entertained the idea of bringing him to trial, potentially implicating EU-Israeli relations.63 While disruption of tenure can always occur, it is not perse paired with the constant fear of prosecution. Without the security of HoS immunity, some HoS might continuously be repressed in their ability to function by fear of prosecution; and consequently, the State will in essence be paralyzed in its ability to function within the international arena.
Having said that, HoS immunity can also not be solely explained through the functionality rationale. Since HoS are often the executives and main representatives of their State, they may need a broader immunity than what is bestowed upon ordinary diplomatic agents.64 The different status of a HoS can be observed through the fact that different restrictions apply to their immunity as compared to diplomatic immunity.65 For example, current HoS enjoy personal immunity in all States regardless of the nature of their visit, while diplomatic agents only enjoy personal immunity in the receiving State and any States they pass through while in transfer from and to the receiving State.66
2.2.3.3. Dual-Rationale
Section 2.2.3.1 and 2.2.3.2 found that neither the par in parem non habet imperium rationale nor the functionality rationale alone provides a sufficient basis for HoS immunity. Instead, authoritative doctrine leans towards a dual-rationale for HoS immunity.
Michael Tunks highlights the dual-rationale doctrine by stressing that HoS immunity ensures both 1) respect for leaders as a “symbol of their State’s sovereign independence”; and 2) the ability to effectively perform their diplomatic functions without fear of arrest.67 The US district court in the Gladys M. Lafontant v. Jean-Betrand Aristide case, moreover, highlights that HoS immunity is a result of both the par in parem non habet imperium principle and the need to execute functions both domestically and abroad.68 This point of view is also reflected by the ILC. Special Rapporteur Kolodkin stresses that HoS immunity has complementary and
62 Dapo Akande & Sangeeta Shah, ‘Immunities of State Officials, International Crimes, and Foreign Domestic
Courts’ [2011] EJIL 815, 818.
63 Tunks (n 23), 656. 64 Mallory (n 47), 170.
65 van Alebeek, ‘The immunity of States’ (n 24). 66 ibid, 179.
67 Tunks (n 23), 654.
interrelated rationales: “functional and representative rationale; principles of international law concerning sovereign equality of States and non-interference in internal affairs; and the need to ensure the stability of international relations and the independent performance of their activities by States.”69 This is reiterated by special rapporteur Escobar Hernandez, who finds that HoS, Heads of Government and Ministers of Foreign Affairs70 have a special status due to their special functions.71 Consequently, the Troika are representatives by nature but also have a key role in the management of foreign policy.72 These determinations lead the ILC to conclude that HoS enjoy personal immunity for two reasons: representational and functional.73
In sum, HoS operate within a grey area of immunities. Although all can agree that HoS enjoy absolute immunity while in office, opinions differ as to the exact rationale behind this immunity. Still, this thesis finds that through the authoritative view a dual-rationale exists. This conclusion may affect the ‘fundamental difference’ argument of the AC, since it only relies on the par in parem non habet imperium rationale. This will be discussed in section 2.4. Before turning to the ‘fundamental difference’ argument, it is important to identify the various methods of customary international law identification.
2.3. Methods for Identifying Customary International Law
Although one of the main sources, customary international law is not a deliberate lawmaking process but rather a form of “unconscious and unintentional lawmaking”.74 It may even be compared to the formation of a path in a forest: at one point it simply exists.75 The accepted definition of customary international law is: “evidence of a general practice accepted as law.76 Although the travaux préparatoires of article 38 ICJ Statute do not identify a “predetermined
69 Roman Anatolevich Kolodkin, ‘Third report on the immunity of State officials from foreign criminal
jurisdiction’ (2011) Un Doc A/CN.4/646.
70 Also referred to as Troika.
71 Concepción Escobar Hernández, ‘Second report on the immunity of State officials from foreign criminal
jurisdiction’ (2013) Un Doc A/CN.4/661, para 59.
72 Concepción Escobar Hernández, ‘Third report on the immunity of State officials from foreign criminal
jurisdiction’ (2014) Un Doc A/CN.4/673.
73 Hernandez, ‘Third report on the immunity of State officials’ (n 72), para 26; see also Tunks (n 23), 654. 74 Cassese, ‘International Law’ (n 33), 153.
75Dapo Akande, 'The Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis
and Limits' [2003] JICJ 618, 626; Noora Arajärvi, The Changing Nature of Customary International Law: Methods of Interpreting the Concept of Custom in International Criminal Tribunals (Routledge 2014), 17.
76 Statute of the International Court of justice (adopted 26 June 1945, entered into force 24 October 1945) 15
method for discovering customary rules”,77 it is established that a two-element test is required. These elements are State practice and opinio juris.78 While mentioned in earlier cases79, this test was only fully established in 1969 when the ICJ asserted the following: “not only must the acts concerned amount to a settled practice, but they must also be [...] evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it [opinio juris].”80 Because of its complex formation process, it is important to establish a clear theory on customary international law identification. Stefan Talmon, highlights a variety of methods through which customary international law can be identified. Below, a condensed overview of his findings will be provided.
2.3.1. Induction
The inductive method relies heavily on the two element-test as it moves from empirically observable State practice and opinio juris to a general rule.81 The Mexico/USA General Claims Commission in Dujay v. United Mexican States affirmed the inductive method by holding that: “existence or non-existence of a rule of [customary] international law is established by a process of inductive reasoning.”82 In the Gulf of Maine, the ICJ concluded that customary international law “can be tested by induction based on the analysis of a sufficiently extensive and convincing practice.”83 The wording of the court should be read carefully. By using can be rather than is, the ICJ suggests that other methods for the identification of custom may also be used.84
While evidence of State practice and opinio juris is always required, the reality is that the evidentiary demands for identifying customary international law through induction are too high, and, if followed accurately, would turn every identification attempt into a dead end.85 Bodansky, compares the identification or creation of new customary international law to a
77 Alain Pellet, ‘Article 38’ in Andreas Zimmermann, Christian Tomuschat & Kann Oellers-Frahn (eds), The Statute of the International Court of Justice, A Commentary Comm Commentary ICJ statute (OUP), 208. 78 ibid (n 77).
79 See for instance, The Case of the S.S. Lotus (Judgment) [1927] PCIJ Series A No 10, 28; Asylum Case (Colombia v Peru) (Judgment) [1950] ICJ Rep 299, 276.
80 North Sea Continental Shelf Cases (Judgments) [1969] ICJ Rep 3, para 77.
81Stefan Talmon, 'Determining Customary International Law: The ICJ’s Methodology between Induction,
Deduction and Assertion' [2015] EJIL 417, 420.
82 Fannie P Dujay, Executrix of the Estate of Gilbert F Dujay (USA) v United Mexican States (Decision) [1929]
4 UNRIAA 449, 452.
83Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Judgment) [1984] ICJ
Rep 246, para 111.
84 Talmon (n 81), 418.
Herculean task.86 It is perhaps no coincidence that the ICJ rarely relies solely on the inductive method and instead declares new customary rules ex cathedra.87 Michael Reisman refers to these two realities, the official approach (inductive method) and observed behavior, as the “myth system” and the “operational code.”88 We should, thus, interpret the inductive method and its rigid reliance on the two-element test with a grain of salt, and instead opt for alternative methods through which customary international law can be identified.
2.3.2. Deduction
An alternative method for customary international law identification is deduction. It is a top-down approach, moving from the general to the specific through legal reasoning.89 Judge Tanaka in the North Sea Continental Shelf case identifies the purpose of the deductive method as follows: “[in] the event that the customary law character of a principle [...] cannot be proved, there exists another reason which seems more cogent for recognizing this character. That is the deduction of the necessity of this principle [...].”90 Stefan Talmon, in a detailed overview of this method, provides four scenarios in which deduction is required to prevent a possible non
liquet.
First, the question at hand may be too new and, hence, State practice in support of or against the new issue is practically non-existent.91 In the Reparation for Injuries case the ICJ was confronted with a new scenario when having to determine whether the UN had legal personality.92 Although no practice existed, the court concluded that international organizations could have legal personality within international law. Second, State practice may not be uniform enough and, thus, yield inconclusive results.93 The ICJ at times faces such inclusive results. This, for instance, occurred in Qatar v. Bahrain, where the court deduced, despite the inconclusiveness of State practice, that low-tide elevations do not serve as a baseline for the equidistance line.94 Third, it may not always be possible to establish the opinio juris of States,
86 Daniel Bodansky, ‘Does Custom Have A Source?] [2014] AJIL Unbound 179, 179. 87 Talmon (n 81), 437.
88 See Michael Reisman in Bodansky (n 86), 180. 89 Talmon (n 81), 420.
90 North Sea Continental Shelf Cases (Dissenting Opinion Judge Tanaka) (n 80), 179. 91Talmon (n 81), 422.
92 Reparations for Injuries Suffered in the Service of the United Nations, (Advisory Opinion) [1949] ICJ Rep
174 (Reparations).
93 Talmon (n 81), 422.
94 Maritime Delimitation and Territorial Questions between Qatar and Bahrain, (Judgment) [2001] ICJ Rep 40,
this is especially the case for negative State practice, like abstentions or omissions.95 As a consequence, “customary international law rules prohibiting certain actions are thus more likely to be arrived at by deduction.”96 Fourth, there may be a discrepancy between the practice of States and their opinio juris.97
As not every situation is the same, a variety of deductive methods exist: normative, functional and analogical deduction. Through normative deduction one infers new rules from “existing rules and principles of customary international law”.98 The ICJ has used this method multiple times; in the Corfu Channel case the court deduced the obligation to warn ships of the existence of minefields in its territory in times of peace from the more general principle of humanity and the obligation to allow for safe passage.99 Using functional deduction allows one to deduce “rules from general considerations concerning the function of a person or an organization.”100 This method was used by the ICJ in the Reparation for Injuries case, when it had to determine whether the UN held functions that required it to have legal personality within international law.101 Finally, analogical deduction extends the rationale of an existing rule to “a situation that does not fall within the wording of that rule.”102 In order for this method of deduction to be viable a common cause or link must bind the existing rule and the new situation.103 This method has, for instance, been used by the ICJ in the Libya/Malta Continental
Shelf case, where it determined through a relation between the continental shelf and the
exclusive economic zone that every State was entitled under customary international law to 200 nautical miles of continental shelf.104
Of the methods highlighted above, this thesis will use analogical deduction to extend the existing rule to a new situation. The AC, too, opts for this method, however, it is unable to find the common cause or link which would allow the already existing rule to be extended to the new situations. The existing rule being HoS immunity and the new situation being international courts. The AC, therefore, concludes that there is no rule. In the following section,
95 Talmon (n 81), 422. 96 ibid, 422.
97 ibid. 98 ibid, 423.
99 Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 4, para 22. 100 Talmon (n 81), 425.
101 Reparations (n 92), para 184-185. 102 Talmon (n 81), 426.
103 ibid, 426.
this thesis will determine that a common cause or link does exist between international and domestic courts for HoS immunity. First, under the functionality rationale, which the AC disregards. Second, under the par in parem non habet imperium rationale, for which the AC concludes that a fundamental difference exists between international and domestic courts.
2.4. The “Fundamental Difference” Argument
Having defined HoS immunity and its rationales as well as the various methods of customary international law identification, the core reasoning of the AC can now be critically analyzed. In section 2.1, the AC’s reasoning was set out. The AC was unable to reason through analogical deduction, since it found a fundamental difference between international and domestic courts. As a result, there exists no rule of HoS immunity under customary international law which is applicable vis-a-vis international courts. Therefore, the onus is placed on those who wish to prove that HoS immunity is applicable before international courts. In the following sections this thesis will unpack this fundamental difference argument and decide whether the reasoning of the AC is in line with analogical deduction. Section 2.4.1 will analyze whether a common link exists under the functionality rationale. Section 2.4.2 will analyze the ‘fundamental difference’ argument of the AC in relation to the par in parem non habet imperium rationale.
2.4.1. A Fundamental Difference under the Functionality Rationale
Section 2.2 determined that the basis for HoS immunity can be found in two rationales: the par
in parem non habet imperium rationale and the functionality rationale. The AC, however, does
not recognize the latter rationale. Consequently, it is important to assess whether a common link under the functionality rationale exists, as this would be enough to extend, by analogy, the rule of HoS immunity before foreign courts to international courts. This would be sufficient to conclude that the AC’s customary international law argument is flawed.
Under the functionality rationale HoS immunity is required to ensure the effective execution of functions. Without immunity from foreign jurisdictions a HoS lives in fear of arrest, making them immobile which may lead to the inability to exercise one's functions. By evaluating the travel behavior of Al-Bashir, since the arrest warrants, it becomes clear that HoS are faced with the same limitations of immobility when an international court seeks their arrest and surrender. Although it is true that Al-Bashir has travelled to various States since the arrest warrants have been issued, it is evident that the majority of States he travels to are non-party
States.105 Moreover, the Mapping Al-Bashir Project found that if he does travel to a State party he rarely returns for a second visit.106 Furthermore, visits are meticulously planned beforehand to ensure Al-Bashir’s immunity will be respected.107 If such immunity cannot be guaranteed the trip will not continue.108 According to the Mapping Al-Bashir project, at least seven trips have been cancelled as a direct result of the ICC arrest warrants.109 Some examples of cancelled trips include the UNGA in New York,110 the Organization of Islamic Cooperation in Kazakhstan111 and the Arab League Summit in Tunisia.112 It is also not surprising to note that most of Al-Bashir’s travels have been made within Africa. From the moment the arrest warrants were issued, the AU has urged its members to uphold Al-Bashir’s immunity.113 In statements made by Sudan it is evident that this assurance has played a huge role in his ability to travel freely to African and some Arab League States.114
Besides the fear of arrest, which would impair a HoS ability to execute their functions, the actual arrest, trial and prosecution would also make it impossible for the HoS to execute their functions effectively. Similar to domestic courts, international courts, such as the ICC, may issue a sentence of imprisonment,115 which would have serious implications on a HoS ability to execute their functions. Moreover, the ICC may for instance place the accused in detention for the duration of the trial.116 This, too, is a burden on the HoS ability to function. Even the appearance at an international court, such as the ICC, can negatively impact the HoS effective execution of functions. The ICC proceedings against the then Kenyan President Kenyatta demonstrate a concrete example. Following a court order to appear before the ICC,
105 Michael A. Newton, Observations on the Merits of the Legal Questions Presented in the Appeal of The Hashemite Kingdom of Jordan’s appeal against the “Decision under article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender [of] Omar Al-Bashir
[2018] ICC-02/05-01/09-361.
106 ibid. 107 ibid. 108 ibid. 109 ibid.
110 'Bashir Cancels Indonesia Trip Over Denied Flight Permission' (Sudan Tribune, 2015)
<https://www.sudantribune.com/spip.php?article54679> accessed 27 November 2019.
111 'Sudanese President Abruptly Cancels Trip To Islamic Meeting In Kazakhstan' (Sudan Tribune, 2017)
<https://www.sudantribune.com/spip.php?iframe&page=imprimable&id_article=63446> accessed 26 December 2019.
112 'Fearing Arrest In Tunisia, Sudan’S Bashir Cancels Trip To Arab League' (Middle East Monitor, 2019)
<https://www.middleeastmonitor.com/20190328-fearing-arrest-in-tunisia-sudans-bashir-cancels-trip-to-arab-league/> accessed 22 December 2019.
113 Andrew Heavens, 'AU Ruling Means Bashir Can Travel In Africa -Sudan' (Reuters, 2009)
<https://www.reuters.com/article/idINIndia-40805120090704> accessed 22 December 2019.
114 ibid.
115 Rome Statute, art 77. 116 ibid.
Kenyatta issued a statement declaring that he would temporarily have to relinquish his role as HoS to be able to appear before the ICC.117 Stepping down from one's function due to an appearance at an international court is perhaps the clearest example of the direct effect an international court can have on the execution of functions. The AU has, additionally, issued a resolution stating that no sitting HoS will ever appear before the ICC as this would endanger the “constitutional order, stability and integrity of Member States”.118
From these brief examples, similarities can be observed between the effects international and domestic courts may have on the accused's ability to exercise their functions. This allows for the conclusion that, through analogical deduction, HoS immunity under customary international law does extend vis-a-vis international courts under the functionality rationale. Although this may be enough to reject the AC’s customary international law argument, it is, nevertheless, important to also assess whether the reasoning of the AC would be sound if the par in parem non habet imperium rationale had been the sole rationale for HoS immunity. Thus, the following section will assess whether a fundamental difference exists between international and domestic courts in relation to the par in parem non habet imperium rationale.
2.4.2. A Fundamental Difference under the par in parem non habet imperium rationale
In the previous section, it was determined through analogical deduction that HoS immunity is applicable before international courts, since similarities could be observed between international and domestic courts under the functionality rationale. However, since the AC never considered this rationale, this thesis will conduct a second analysis to determine whether the AC’s ‘fundamental difference’ argument is sound in relation to the par in parem non habet
imperium rationale. The conclusion drawn is that it is not and that under this rationale we also
find a common link between international and domestic courts. This conclusion is built on two arguments, which are unpacked in the following subsections. Subsection 2.4.2.1 defines an international court and finds that the AC does not accurately capture the definition of such a court. Subsection 2.4.2.2 builds upon this, arguing that even if the AC had accurately defined
117 'Kenyatta To Step Down During ICC Hearing' (Aljazeera, 2014)
<https://www.aljazeera.com/news/africa/2014/10/kenyatta-step-down-during-icc-hearing-201410614742538287.html> accessed 20 December 2019.
118 'African Union Expresses Opposition To International Criminal Court Prosecutions And Seeks
Postponement Of Kenyatta Trial' (International Justice Resource Center, 2013)
<https://ijrcenter.org/2013/10/16/african-union-expresses-opposition-to-international-criminal-court-prosecutions-and-seeks-postponement-of-kenyatta-trial/> accessed 15 December 2019.
an international court in the context of non-applicability of HoS immunity, the international community which it represents is still nothing more than the pooling of sovereignties.
2.4.2.1. Defining an International Court
At the core of the ‘fundamental difference’ argument lies the definition of an international court. The concurring opinion defines an international court as “an adjudicatory body that exercises jurisdiction at the behest of two or more States”.119 It can come into existence through a variety of ways.120 It may be regional or universal in orientation as well as ad hoc or permanent in duration.121 Furthermore, international courts have jurisdiction bestowed upon them by States, providing them with competencies over a variety of subjects.122 Finally, an international court does not represent individual States but rather the international community.123 From the concurring opinion, it is evident that the AC has an unrestrictive definition of international courts, as any two States can form an international court. Although the entire definition can be assessed, this thesis will only further assess the bottleneck of the definition and adopt the rest. The bottleneck in this definition is the fact that an international court exercises the will of the collective international community rather than the will of individual States. This difference forms the core of the ‘fundamental difference’ argument and allows the AC to conclude that the par in parem non habet imperium rationale finds no application in relation to an international court.
The preamble of the Rome Statute stresses that the ICC has jurisdiction over the most serious crimes of concern to the “international community”.124 The ICC is not alone in using this phrase as it is frequently used by courts, politicians, international organizations, news agencies and academics. The ICJ in the Barcelona Traction case emphasized that a “distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State [...]”.125 The former are obligations erga omnes or obligations owed to all States equally. This indeed suggests that international courts do represent the international community. However, does this mean that any two States can form
119 Jordan Referral (Joint Concurring Opinion) (n 9), para 56. 120 ibid, para 56.
121 ibid, para 57. 122 ibid, para 58. 123 ibid.
124 Rome Statute, preamble.
an international court and represent this community or are certain conditions required? This thesis will show that the latter is the case.
In his amicus curiae brief to the Jordan Appeal case, Claus Kreẞ provides the AC with several conditions that must be satisfied for an international court to represent the international community. The fact that only some international courts represent the international community was also highlighted by the ICJ, which held that HoS immunity does not apply before “certain international criminal courts” (emphasis added).126 Kreẞ suggests that all international courts created through the UNSC represent the international community. Yet, international courts established via a treaty must meet certain conditions. First, such a treaty should be confined to international crimes reflected in customary international law.127 Second, such a treaty must be the result of truly universal negotiations and must be open to universal membership.128 This can be referred to as the universality requirement. It follows that no regional international court can represent the international community. Kreẞ’s conditions create a high threshold for international courts who wish to claim that they represent the international community.
Unfortunately, the AC does not adequately adopt these restrictive conditions and at most implicitly alludes to them. For example, it refers to international courts “adjudicating international crimes”129 or to “jurisdiction over crimes under international law”.130 While these statements allude to the first requirement listed by Kreẞ, they say nothing about the second requirement.
The universality requirement is necessary if an international court is to represent the international community. Two States forming an international court with jurisdiction over international crimes is not enough. Still, the AC does not allude to this requirement. This has been criticized for it would potentially enable any two States to circumvent HoS immunity under customary international law by establishing international courts that do not actually represent the international community.131 The ICC’s spokesperson had the opportunity to respond to these criticisms and include the universality requirement in the AC’s definition of an international court. However, they merely dismissed the concerns as unwarranted, holding
126 Arrest Warrant (n 49), para 61.
127 Claus Kreẞ & Erin Pobjie, Written observations of Professor Claus Kreẞ as amicus curiae, with assistance of Ms Erin Pobjie, on the merits of the legal questions presented in ‘The Hashemite Kingdom of Jordan’s appeal against the “Decision under article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender [of] Omar Al-Bashir”’ [2018] ICC-02/05-01/09-326, para 14
128 ibid, para 14.
129 Jordan Referral (Judgment) (n 9), para 115. 130 ibid.
that there is no need for concern, since HoS immunity is only inapplicable before courts with proper jurisdiction.132 However, this still leaves out the universality requirement and, thus, the AC’s definition of an international court remains too broad. Kreẞ stresses that the AC, by referring only to international courts, which are universal in nature, suggests that only those types of courts represent the international community.133 However, this argument requires too much interpretation and is, therefore, not strong enough to positively conclude that the AC, in its definition, is only referring to international courts, which are universal in nature.
In short, the AC’s definition of an international court does not establish the requirements needed to represent the international community. Hence, under the AC’s current definition, these courts need not always represent this community and are not perse different to domestic courts in that respect.
Even if an international court meets Kreẞ’s conditions, it is questionable whether a fundamental difference exists between such an international court and a domestic court in relation to the par in parem non habet imperium rationale. It is, therefore, important to define the international community itself: is it its own entity or is it merely the pooling of individual sovereignties? If it is its own entity and not merely the pooling of sovereignties, then the par
in parem non habet imperium rationale and by corollary HoS immunity is not applicable.
However, if the rationale is applicable, because the international community is just a collection of individual States, then no fundamental difference exists.
2.4.2.2. Defining the International Community
The AC itself does not define the international community in the Jordan Referral case. However, some academics have specifically aimed to define the international community in this context. David Ellis identifies an international community as a unified society of States adhering to generally the same “norms, rules, identities, and views of moral conduct”.134 He emphasizes that an international community, as described above, is not to be confused with the international society, which is based on common interests and values alone.135 This distinction is also observed by Robert Jackson who notes that an international society is an “association of independent and legally equal members” while the international community functions as an “enterprise in its own right.”136 Tod Lindberger, in his working paper on the international
132 Jordan Referral (Questions and Answers) (n 9). 133 Kreẞ (n 12).
134 David Ellis, ‘On the Possibility of “International Community”’ [2009] ISR 1, 4. 135 ibid, 5.
community, argues that it is neither a world government nor a form of global governance and as such it holds no independent sovereign power.137 Furthermore, Lindberger stresses that the international community should not be seen as an aggregation of its members.138 Lindberger’s version of an international community, thus, coincides more with what Ellis terms the international society. From this, the conclusion can be drawn that a truly autonomous international community is yet to be formed. Instead it is more accurate to say that the international community referred to by the AC is nothing more than the pooling of sovereignties.
Since the international community is indeed nothing more than the pooling of sovereignties, then that means that the par in parem non habet imperium rationale still stands. If this rationale is still applicable, then the AC’s fundamental difference argument no longer holds. Ergo, through analogical deduction HoS immunity under customary international law could extend vis-a-vis international courts.
2.5. Sub-conclusion
After assessing whether a fundamental difference exists between international and domestic courts, in relation to both the functionality and par in parem non habet imperium rationale, it has become evident that this is not the case. In fact, a common link exists between these courts under both rationales. It is, therefore, possible to analogically deduce that HoS immunity under customary international law is applicable before international courts. The fact that the AC attempted to use analogical deduction means that it was not perse acting contrary to the theory of customary international law identification. Where it takes a wrong turn is in its reasoning: first, it reasons that HoS immunity is only supported by the par in parem non habet imperium rationale. Section 2.2 determined that HoS immunity has a dual-rationale, namely both the functionality and par in parem non habet imperium rationale. As a consequence, the AC does not engage in an assessment on the applicability of the functionality rationale before international courts. This thesis did engage in such an assessment and found that international courts, like domestic courts, negatively impact a HoS’s ability to effectively execute one’s functions. Thus, under the functionality rationale HoS immunity can be extended vis-a-vis international courts. Second, the AC reasons that a fundamental difference exists between international and domestic courts under the par in parem non habet imperium rationale, which
137 Tod Lindberger, ‘Making Sense of the “International Community”’ (Working paper, Council on Foreign
Relations 2014), 14.
leads it to conclude that analogical deduction is not possible. This is also not sound, since the AC does not accurately define an international court nor define the international community. Following an analysis of the international community, this thesis found that it is nothing more than the pooling of sovereignties. Since the international community is still just a collection of individual States, there is no reason why the par in parem non habet imperium rationale would not apply. Thus, also under this second rationale, HoS immunity can be extended vis-a-vis international courts.
Although the rule of HoS immunity is applicable before international courts, this does not necessarily mean that HoS immunity can be relied upon. It is possible that under customary international law an international court exception to the rule of HoS immunity exists, thereby, preventing HoS from inoking such immunity before international courts. The next chapter will assess whether such an exception exists. Such an exception would still enable the ICC to investigate and prosecute sitting HoS of non-party States.
3. An International Court Exception to Head of State
Immunity
The previous chapter analogically deduced that HoS immunity under customary international law extends vis-a-vis international courts. Consequently, an international court exception to HoS immunity under customary international law is necessary if the ICC wishes to use the customary international law avenue.
In the Arrest Warrant case, the ICJ held that HoS or other members of the troika “may be subject to criminal proceedings before certain international courts, where they have jurisdiction.”139 This statement is often referenced as confirmation of an international court exception. The SCSL, for instance, based its decision, that HoS immunity is not applicable before it, on the abovementioned statement of the ICJ.140 However, there is also criticism towards those who interpret this statement as a solidification of the international court exception. Dapo Akande suggests that the ICJ is not referring to a development of customary international law at all, but rather to situations where the State of the official has consented to an instrument of an international court that expressly or implicitly removes the immunity of said persons.141 Only in such situations will immunity not bar the international court from
139Arrest Warrant (n 49), para 61.
140 Prosecutor v. Charles Ghankay Taylor (Judgment) [2012] SCSL-03-1-T.
