Posted by: captainfalcon | February 15, 2010

Hard PIL to Swallow

The European Journal of International Law blog notices a nifty “tension” in public international law. Article 27 of the Rome Statute (the International Criminal Court’s charter) reads (in part):

[O]fficial capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence…Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

In short: the Court may prosecute (and punish) criminals over which it has jurisdiction even if those criminals are heads of state.

But (as far as I can tell) the Court may not actually arrest anybody for whose arrest its issued a warrant. Rather, it must either “request” a party to the Rome Statute to do so, “invite” a non-party or “ask any intergovernmental organization…for other forms of cooperation and assistance which may be agreed upon with such an organization and which are in accordance with its competence or mandate” (Article 87 lays out this regime).

Additionally, Article 98 forbids the ICC from requesting that any State “act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.” Arguably, this means that the ICC may not ever ask a State to arrest a head of state; in 2002, the International Court of Justice implied that customary international law obliges States to respect a head of state’s immunity. From this (very nice) review:

The ICJ agreed…under customary international law, sitting foreign ministers when abroad enjoy full immunity from criminal jurisdiction as well as inviolability protecting them from “any act of authority” by another State which would hinder them in the performance of their duties. The Court could not discern any exception to this rule in State practice. Thus, it does not matter whether a foreign minister was, at the time of arrest, present in the territory of the arresting State on an “official” or a “private” visit, or whether the arrest relates to acts allegedly committed before the foreign minister took office or while in office. It also is immaterial whether or not the arrest relates to alleged acts performed in an “official” capacity or a “private” capacity. Moreover, there is no exception to an incumbent foreign minister’s absolute immunity from criminal process where that person is accused of having committed crimes under international law.

[snip]

Although the decision is limited by its terms to sitting foreign ministers and, by virtue of Article 59 of the ICJ Statute, is binding only on the [parties to the dispute] and only with regard to this particular case, its impact is potentially much broader. The judgment indicates that the ICJ would apply a similar analysis to other high-ranking officials who, like foreign ministers, represent the State in international affairs and must travel to carry out their duties.

It is true, as the ASIL Insight notes, that ICJ opinions have no precedential weight (the ICJ rejects stare decisis*). However, written as they are by supremely eminent, meticulous and dispassionate scholars, they are generally regarded as authoritative expressions of what international law – customary or otherwise – enjoins.

Putting this all together: it seems possible that the ICC could have jurisdiction over somebody it is illegal for them to get a hold of. If (i) only States may deliver those for whom the ICC issues warrants into the ICC’s hands and (ii) States may not apprehend heads of state then, given that (iii) the ICC may issue warrants for heads of state, the paradoxical conclusion follows. (Of course, despite the sketchy motivations I’ve proffered, both (i) and (ii) are open to challenge. The EJIL post (still worth a look) adduces considerations against (ii); the fact that the ICC may ask “intergovernmental organizations” to assist them in various (portentously) unspecified ways speaks against (i).)

* Article 59 reads, in full, “The decision of the Court has no binding force except between the parties and in respect of that particular case.” That doesn’t seem to preclude the ICJ from opting to employ stare decisis; all it means is that they are under no statutory obligation to incorporate it in their methodology (and, maybe, that considerations of stare decisis can never oblige them to rule on way or another).  But it’s perfectly consistent with (the plain meaning of) Art. 59 to take considerations of stare decisis into account. Still, I don’t think the ICJ likes to do that.

official capacity as a Head of State or Government, a
member of a Government or parliament, an elected representative or a
government official shall in no case exempt a person from criminal responsibility
under this Statute, nor shall it, in and of itself, constitute a ground for reduction of
sentence.
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