Immunity and International Criminal Law

Yitiha Simbeye

• Publisher: Routledge
• Year: 2017
• Topic: Law
• eBook ISBN:
  9781351928458
• Subtopic: Criminal Law
• Index: Law

Two events occurred in 1998 that had far-reaching consequences for international justice: the adoption of the Statute for the International Criminal Court by the Diplomatic Conference of Plenipotentiaries in Rome (the Rome Statute); and the arrest in London of former President Pinochet for crimes against humanity. These events are, for many, the culmination of attempts to seek legal redress against those who commit international crimes. This stimulating, ground-breaking book debates the issues raised by international crimes. It highlights the two competing international law needs that must be addressed in this situation: the pursuit of international justice (which international criminal law purports to uphold), and the maintenance of international peace and security - an important rationale for the immunities of state officials abroad.

Chapter 1

The International Criminal Court

The international criminal justice system is a dual faceted system. One aspect deals with the development of norms prohibiting international crimes and the other with holding individuals responsible for such crimes. The establishment of the ICC is based on the second feature. It is intended that as a court it will act as the last resort when states fail to proceed.¹ Thus states retain the power to deal with international crimes at the domestic level, given that they still proscribe and enforce rules in their territories.² Their competence to deal with persons suspected of breaching their rules endures.

The History

The idea of a permanent international criminal court has been in circulation for decades. Ever since the Second World War various groups and the UN have been engaged in debate as to how, when, and what kind of international criminal court could be established.

Efforts to Establish an International Criminal Court before the United Nations

The concept of an international criminal court, albeit one to arbitrate inter-state disputes, was evident as far back as 1899. It was put forward during the First Peace Conference in The Hague, where it was acknowledged that an international tribunal was a good way to settle disputes, and proposed the establishment of a permanent Court of Arbitration.³ It was not, however an ordinary court, but a list of non-professionals who were available to arbitrate if called upon by the state parties.⁴ During the Second Peace Conference in 1907, the US resurrected the idea of a permanent court by suggesting a court with 15 professional judges who in their 12-year terms would work towards building up a body of international law.⁵ But states placed so many reservations that this proposal proved unworkable.

In 1926 the International Law Association (ILA) drafted a statute for an International Penal Court.⁶ It was envisioned that the International Penal Court would have jurisdiction over violations of international obligations of a penal character, violations of treaties or conventions regulating methods and conduct of war and violations of the laws and customs of war generally.⁷ In 1937 the League of Nations produced its Convention for the Creation of an International Criminal Court to deal with the crime of terrorism as put forward by the League’s Convention for the Prevention and Punishment of Terrorism.⁸ The court was to be a permanent body, sitting only when seized of proceedings for an offence within its jurisdiction.⁹

During the Second World War the London International Assembly,¹⁰ created under the auspices of the League of Nations, called for international criminal law to be codified and war of aggression to be recognized as a crime. The London Assembly appealed for those militarily responsible for aggressive war to be held personally accountable.¹¹ It wanted certain crimes, such as those committed against the Jews, to be recognized as crimes against mankind although they were not crimes under domestic law. To further these goals it drafted a convention for an international criminal court to be established by the United Nations having jurisdiction over those who had committed war crimes irrespective of rank.¹² The draft gave primacy to domestic courts:

no case shall be brought before the Court when a domestic court of any one of the United Nations has jurisdiction to try the accused and it is in a position and willing to exercise such jurisdiction.¹³

The draft convention gave member states the choice to either prosecute or commit the accused for trial by the international criminal court.¹⁴ The London Assembly’s draft included a novel idea of an international constabulary capable of executing the court’s orders. Member states were to confer on the international constabulary the power to request the help of local police where necessary, to assist it in the performance of its duties.¹⁵

Although not permanent, the International Military Tribunal at Nuremberg and the International Military Tribunal for the Far East were the first international criminal tribunals. The Allies, subsequent to the defeat of Germany and Japan, established them in 1945. The objective was to punish those responsible for the international crimes of crimes against peace, war crimes and crimes against humanity.¹⁶ However altruistic the thinking behind the two tribunals may have been, both the Nuremberg and Tokyo Tribunals were accused of being ‘victors’ courts; an accusation denied by the United States amongst others. The USA’s representatives maintained that the trials were intended to marshal in a new era that would make international crimes punishable under binding international law.¹⁷ Such statements did not easily assuage the cries of ‘victors’ courts’ especially when taken in context with Japan’s inability to raise its complaint about the USA’s use of nuclear weapons against it before the tribunal.¹⁸ However, Nuremberg’s openness and adherence to the law has ensured that it ‘has withstood the test of time as a fair articulation of evolving international law’.¹⁹ On the other hand, questions as to the Tokyo Tribunal’s complete openness were raised as it failed to look at the Emperor’s responsibility.²⁰ Nevertheless, the prosecutor did argue that the Emperor could not have been tried and convicted because under the Japanese constitution he did not have the power to make or stop the war.²¹

The United Nations and its Attempts to Create an International Criminal Court

The idea of an international criminal court was taken up thereafter by the UN when its Economic and Social Council (ECOSOC) included an international criminal court in its draft convention on genocide.²² The contracting parties were to commit persons guilty of genocide under the convention for trial by an international court where they were unwilling to try or extradite the offenders, or where the acts were committed by persons acting as organs of the state or where there was support or toleration of the state for the acts in question.²³

ECOSOC presented different views on an international court in two separate drafts:

(i) an international court having jurisdiction in all matters connected with international crimes, and

(ii) an international criminal court only having jurisdiction over genocide.²⁴

This court could be either permanent²⁵ or ad hoc.²⁶ States reviewed the first draft and raised various concerns.²⁷ A few countries seemed unwilling to see their sovereignty infringed, whilst others saw it as being too unrealistic.²⁸ Consequently, the General Assembly voted to remove any reference to an international criminal court from the Genocide Convention.²⁹ Nevertheless, at the same time that it adopted the revised convention the General Assembly invited the International Law Commission (ILC) to look at the question of an international criminal jurisdiction. At that time the ILC was looking to formulate the Nuremberg principles through a draft code of offences against peace and security and it seemed logical to combine the two efforts.³⁰ The rapporteur dealing with the code of offences and the Nuremberg principles produced his report, which was discussed by the ILC in 1949.³¹ Prior to this report, the ILC in 1948 appointed two rapporteurs, Alfaro and Sandström, to look specifically at the issue of an international criminal court.³²

The rapporteurs reported back to the ILC in 1950 with opposing views. Alfaro, looking back historically, concluded that there was desire and support amongst states for the establishment of an international criminal court.³³ He was of the opinion that it was possible to set up an international organ of penal justice.³⁴ His point of view was based on the judicial organs created by the Geneva Conventions of 1937 for the trial of persons responsible for acts of terrorism, and the two military tribunals set up after the Second World War. He put forward the argument that only an international court could properly try certain international crimes that are committed by governments.³⁵ According to him, the notion of absolute sovereign rights of nations was in part relinquished by the very existence and function of the UN. Accordingly, the sovereignty of states is subordinated to the supremacy of international law.³⁶ Sandström, on the other hand, was of the opinion that states were not ready to have an international criminal court that would in effect erode their sovereignty.³⁷ For Sandström the time was not right.³⁸ Although he agreed with Alfaro that there was a desire to establish an international criminal court, he concluded that the issues of sovereignty and criminal jurisdiction hindered the establishment of an effective inter-state criminal jurisdiction.³⁹

Although faced with the two opposing views, the ILC managed to vote in favour of the establishment of an international criminal court and presented its recommendations to the General Assembly. Its Sixth Committee recommended that the General Assembly pass a resolution to create a special committee to meet and prepare a preliminary draft convention and proposals for the establishment of an international criminal court.⁴⁰ The resolution was passed and the seventeen-member Committee on International Criminal Jurisdiction met and produced proposals and a preliminary convention in August 1951. ⁴¹

The international criminal court, envisaged by this seventeen-member committee, was to...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Abbreviations
• Introduction
• 1 The International Criminal Court
• 2 International Crimes
• 3 Individual Criminal Responsibility
• 4 Immunities
• 5 High-Ranking State Officials and Crime
• 6 The Need for Balance: The Pursuit of International Justice Versus Stable Inter-State Relations
• Conclusion
• Appendix
• Bibliography
• Index