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War crimes universal jurisdiction and immunity

Nov 27, 2010 4:03:38 PM- transcurrents.com

by Maithri Wickremesinghe

Ordinarily a state exercises criminal jurisdiction only over offences which occur within its geographical boundaries. However, since the Nazi atrocities and the Nuremberg trials, international law recognises a number of offences such as war crime, torture, genocide, and crime against humanity as being international crimes. Individual states have taken jurisdiction to try these international crimes even in cases where such crimes were not committed within the geographical boundaries of such states. This jurisdiction is sometimes referred to as universal jurisdiction.

There are several statutory provisions in Britain that create a modified version of universal jurisdiction in respect of international crimes. Section 1 of the Geneva Conventions Act 1957 (war crime), Section 1 of the Taking of Hostages Act 1982 (hostage taking), Section 134 of the Criminal Justice Act 1988 (torture) and Part 5 of the International Criminal Court Act 2001 (genocide, crime against humanity and war crime) are some of the principle statutory provisions in this regard.

In December 2009 a British Magistrate, on the application of some of the Palestinian victims of the fighting issued an arrest warrant for Israel’s former foreign minister Tzipi Livni over war crimes allegedly committed in Gaza that year. Ms. Livni cancelled her visit to Britain. Less than three months earlier a similar application was made by Palestinians for an arrest warrant against Ehud Barak who was the Deputy Prime Minister of Israel and its Defence Minister. He was in London and scheduled to meet the then Prime Minister, Gordon Brown and the then Foreign Secretary, David Miliband.

The court refused to issue an arrest warrant observing that allegations of war crimes had been well documented, but that it was "satisfied that under customary international law Mr. Barak had immunity from prosecution as he would not be able to perform his functions efficiently if he were the subject of criminal proceeding" in Britain. In 2005 an arrest warrant was issued against a retired Major General of the Israeli Army on the application of victims in Gaza for his alleged violation of Article 147 of the Fourth Geneva Convention 1949 relative to the Protection of Civilian Persons in Time of War, a criminal offence in Britain under the Geneva Conventions Act 1957. Major General (retired) Doron Almog presumably fearing arrest, did not disembark from the airplane he had arrived in at Heathrow Airport in London.

The arrest of Senator Pinochet, the former Head of State of Chile.

The arrest of Senator Pinochet in London is the best known instance of an arrest in Britain of a foreign national for alleged war crimes committed outside Britain. The resulting litigation (indeed there were three separate applications to the House of Lords) laid down the law of England on the issue of an arrest warrant on a Head of State.

On 11th September 1973 a right wing coup evicted the left wing regime of President Allende of Chile. The coup was led by Senator (then General) Pinochet. At some stage Pinochet became Head of State and remained so until 11th March 1990. In 1998 while Senator Pinochet was in Britain for medical treatment, a Spanish Court invoking principles of universal jurisdiction issued two international arrest warrants for several crimes allegedly committed by Pinochet primarily in Chile during his tenure as Head of State. Acting on these international arrest warrants, a British Magistrates Court issued two provisional arrest warrants. On the application of Pinochet, the High Court in London by a unanimous decision quashed both warrants holding that Pinochet (as former Head of State) was entitled to state immunity in respect of the acts with which he was charged. The decision of the High Court to quash the warrants was appealed to the House of Lords.

Submissions were made on behalf of several parties including Amnesty International and Human Rights Watch. By a 3 to 2 majority (with Lord Hoffmann in the majority) the House of Lords in this first Pinochet case allowed the appeal and held that Senator Pinochet was not entitled to immunity. Shortly thereafter Pinochet’s lawyers brought it to the attention of the House of Lords that Lord Hoffmann was connected with Amnesty International Charitable Trust albeit in an honorary capacity and that his wife was employed by Amnesty International. The House of Lords then reviewed the matter in a second Pinochet case and held that although there was no suggestion that Lord Hoffmann was actually biased against Senator Pinochet, he had "an interest in the outcome of the proceedings", was "in effect, acting as a judge in his own cause" and that "public confidence in the integrity of the administration of justice would be shaken if his decision were allowed to stand". The House of Lords ordered a fresh hearing.

Immunity available to a serving foreign head of state and a former foreign head of state.

The opinion of the House of Lords in the fresh hearing in the third Pinochet case held by a majority of 6 to 1 that the arrest warrant was validly issued. In doing so they drew a distinction between the immunity available to a serving head of state on the one hand and a former head of state on the other. Customary international law conferred on a serving head of state immunity ratione personae. A person who has immunity ratione personae enjoys immunity by reason of his person and such immunity is absolute and inviolable by another State. Immunity ratione personae the House of Lords determined is confined to serving heads of state and heads of Diplomatic Missions, their families and servants. According to the House of Lords it is not available to serving heads of government who are not also heads of state, military commanders and those in charge of the security forces or their subordinates. It would therefore have been available to Hitler but not to Mussolini or Tojo.

Former heads of state such as Senator Pinochet, according to the House of Lords enjoyed immunity ratione materiae. A person entitled to immunity ratione materiae does not enjoy absolute immunity. His immunity must be referable to his official acts on behalf of the State while in office. In other words, he cannot be charged by a foreign state for any official act he engaged in while he was Head of State. The House of Lords held that commissions of acts of torture alleged to have been committed by Pinochet infringed jus cognes (a crime that infringed the principles of international law from which no derogation is permitted) which could not be an official act of a head of state and therefore the immunity to which Senator Pinochet is entitled to as a former head of state did not arise.

The House of Lords held unanimously that the position would have been different if Pinochet was a serving head of state. In the words of Lord Millet:

"The immunity of a serving head of state is enjoyed by reason of a special status as the holder of his state’s highest office. He is regarded as the personal embodiment of the state itself. It would be an affront to the dignity and sovereignty of the state which he personifies and a denial of equality of sovereign states to subject him to the jurisdiction of the municipal courts of another state whether in respect of his public acts or private affairs. His person is inviolable; he is not liable to be arrested or detained on any ground whatsoever."

The Law Lords however went on to hold that while a serving head of state may not be charged in a court of another State, he may be liable to be charged by an international tribunal if the instruments creating such tribunal makes express provisions to this effect. So for example, even a serving head of state was liable to be tried in terms of the Nuremberg Charter which provides that

"The official position of defendants, whether as head of state or responsible officials in Government Departments shall not be considered as freeing them from responsibility or mitigating punishment."

Similar provisions are contained in Tokyo Charter of 1946, the Statute of Tribunal for the Former Yugoslavia, the Statute of the Tribunal for Rwanda and the Statute of the International Criminal Court.

The decision of the International Court of Justice in Congo v Belgium.

Absolute immunity enjoyed by a serving head of state from courts of another State was confirmed in emphatic terms by the International Court of Justice (ICJ) in the Democratic Republic of the Congo v the Kingdom of Belgium.

Belgium issued an arrest warrant for Congo’s Minister of Foreign Affairs, Aboulaye Yerodia Ndombasi for crimes against humanity. Congo made an application to the ICJ claiming that Mr. Yerodia as its incumbent Minister of Foreign Affairs enjoyed absolute immunity before Belgium courts and that the warrant violated such immunity. In its judgment on 14 February 2002 the ICJ emphatically held that

"in International Law it is firmly established that, as also diplomatic consular agents, certain holders of high - ranking office in a state, such as Head of State, Head of Government and Minister of Foreign Affairs, enjoy immunities from jurisdiction in other States both civil and criminal."

The ICJ went on to hold that if a minister for Foreign Affairs is arrested in another State on a criminal charge, he or she is clearly thereby prevented from exercising the functions of his or her office. The consequences of such impediment to the exercise of those official functions are equally serious, regardless of whether the minister for Foreign Affairs was, at the time of arrest, present in the territory of the arresting State on an ‘official’ visit or a ‘private’ visit."

Accordingly the ICJ held that whether on a private visit or an official visit a serving minister of foreign affairs and a fortiori a serving head of state is entitled to absolute immunity from arrest by a foreign state. The ICJ held that the warrant was unlawful and that Belgium must cancel the warrant and inform the authorities to whom it was circulated.

The ICJ like the House of Lords held that this immunity from arrest may not be available in respect of warrants issued by certain international criminal courts such as the International Criminal Tribunal for former Yugoslavia and the International Criminal Court where they have jurisdiction.

Arrest and prosecution in Britain of a foreign Head of State in the exercise of universal jurisdiction

Prosecutions in Britain of international crimes under its statutes creating universal jurisdiction require the consent of the Attorney-General. No private individual can institute any such prosecution without such consent. Needless to say in view of international law, whatever are the merits of the matter, it is inconceivable that the Attorney General of Britain would grant approval for the prosecution of a serving foreign head of state, and even if he did, such head of state will enjoy immunity ratione personae.

However, no consent of the Attorney-General is required to obtain an arrest warrant in view of section 25 of the Prosecution of Offences Act 1985. It is this provision that is used by private individuals to obtain arrest warrants in cases involving alleged war crimes, the prosecution of which necessarily requires the consent of the Attorney-General. Although a prosecution of such crimes cannot be successfully maintained without the consent of the Attorney-General, an arrest warrant may be obtained pending the grant or refusal of consent to prosecute, on the basis that there is no time to obtain such consent before the suspect leaves the territory of Britain. However, in the case of a serving head of state customary international law would preclude the issue of even an arrest warrant.

Can a foreign Head of State visiting the United Kingdom be arrested on an International Warrant issued by the International Criminal Court?

An instance in which a serving head of state of another State may be lawfully arrested in Britain is where the International Criminal Court (ICC) issues an International Warrant for his arrest and surrender alleging that he has committed an ICC crime, or been convicted by the ICC. Part 2 of the International Criminal Court Act 2001 (ICC Act) makes such warrant executable in Britain. In terms of the ICC Act (Section 23) if the warrant is with regard to a head of state of a state which is a party to the Statute of the International Criminal Court 1998 (Rome Statute) no immunity would attach to such Head of State but a head of state of a state which is not a state party to the Rome Statute will have immunity unless a waiver of immunity is obtained by the ICC in relation to a request for the surrender of such Head of State. In effect then, while the Head of State of a state party to the Rome Statute may be arrested in Britain on an International Warrant issued by the ICC, the Head of State of a non State Party to the Rome Statute such as the President of the USA, India, Russia or Sri Lanka cannot be so arrested unless a waiver of immunity has been obtained by the ICC.

(The writer is a practicing Attorney-at-Law and a Fellow of the Chartered Institute of Management Accountants of the UK. He has previously lectured at the Faculty of Laws of the University of Colombo and at the Kotalawela Defence Academy)