Personal Immunities Redux before A Special Tribunal for Prosecuting Russian Crimes of Aggression: Resistance is Futile!

Since the Russian Federation renewed its aggression against Ukraine with a full-scale invasion in 2022, the world has been abuzz with initiatives and proposals to create a special tribunal for prosecuting Russian political and military leaders for committing the crime of aggression (see for instance Open Society Justice Initiative, the European Parliament, The Elders, and Ban Ki-moon). Quite naturally, legal scholars have weighed in on all sorts of challenges that are raised by the implementation of such a momentous project. One of the most crucial legal issues is the question of immunities which, under international law, benefit the officials of a State and in particular immunities ratione personae attached to the troika of heads of State, heads of government and ministers of foreign affairs. This contribution will consider a number of legal issues raised by various suggestions – see for instance Johnson, Dannenbaum, Eboe-Osuji (see also extended version of Eboe-Osuji in the JICJ) and Trahan – that personal immunities of particularly the troika can be declared inapplicable before an international tribunal.

Immunities of State officials before national criminal courts are being considered by the International Law Commission, which just last year adopted on first reading the Draft articles on immunity of State officials from foreign criminal jurisdiction (hereinafter ILC Draft articles on immunity). As is well known, such immunities are subdivided into two categories, namely functional (ratione materiae) and personal immunities (ratione personae). The former benefit all State officials when acting in an official capacity, and such immunities persist even after an official no longer occupies his or her position. The latter attach, according to the International Court of Justice (ICJ), to a limited category of “… holders of high-ranking office in a State, such as the Head of State, Head of Government, and Minister for Foreign Affairs …” (Arrest Warrant case, para. 51), and entail that its beneficiaries are immune during their period of office for all official and private acts. Although the ICJ’s formulation suggests an open-ended category, there is a tendency to limit this category to the troika (e.g., Article 3 of the ILC Draft articles on immunity).

A limited exception is being proposed by the ILC for functional immunities with respect to certain international crimes (Article 7 ILC Draft articles on immunities, which has however proved controversial within the ILC itself and led to an unusual, recorded vote of 21 in favour, 8 against, 1 abstention, with 4 absent). Absent from the list of international crimes so exempted is the crime of aggression, ostensibly because a determination of individual responsibility would require a prior determination that a foreign State has committed an act of aggression (Article 7, Commentary, para. 21). Personal immunities are not subject to the exception embodied in Article 7, but this may perhaps be put to the test in France with an international arrest warrant issued against President Assad of Syria for war crimes and crimes against humanity in relation to chemical weapons attacks in 2013.

However, immunities before international criminal courts and tribunals have always been treated in a rather piecemeal fashion, largely dependent on the manner of their creation and legal basis. Noteworthy in this respect is that the statutes of almost all of these did not actually reference immunities, and instead only stipulated that the official position of an accused does not relieve such a person from criminal responsibility or mitigate punishment. It may be observed then that the tribunals where immunities were disregarded have been either based on unconditional surrenders of the States concerned (Germany and Japan) and the exercise of their governmental authority by occupation forces (Nuremberg Charter, p. 279; Tokyo Charter), or the result of the exercise of Chapter VII powers by the United Nations Security Council, which imposed an obligation to cooperate fully on all States (i.e. members; Resolution 827 (1993), para. 4; Resolution 955 (1994), para. 2). An exception to this has been the Special Court for Sierra Leone in the Taylor Immunity decision, on which more later.

Equally noteworthy is that the Rome Statute of the International Criminal Court is the only instrument to address immunities in an explicit manner. Thus, Article 27(2) of the Statute stipulates that “[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.” However, Article 98(1) of the Statute enjoins the Court to respect immunities in relation to States that are not a party: “The Court may not proceed with a request for surrender or assistance which would require the requested State to 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.”

The Appeals Chamber has claimed that Article 27(2) Rome Statute reflects customary international law (Jordan Referral re Al-Bashir Appeal, paras. 1-4, 98-119, 122, 127), which is however very much doubtful (Akande, who also notes that the Appeals Chamber did not investigate implementing legislation of the Rome Statute that maintains immunities for officials of third States). Its main thrust has been to rely on provisions of prior instruments that stipulate that accused are not relieved from criminal responsibility by virtue of their official position, but without in effect discussing actual practice related to persons that would have benefited from personal immunities before international tribunals. Perhaps this is because reliance on such practice would prove fruitless: incumbent heads of State, heads of government and ministers of foreign affairs have in the past never been brought to justice before an international tribunal during office, but always after they were forced out of their position or left office (leaving aside that at times an arrest warrant was issued and circulated while still occupying their position; an otherwise problematic activity, as the Arrest Warrant case, paras. 70-71, shows). The only exception so far has been the Kenyatta case before the ICC, which can however be explained by Kenya being a party to the Rome Statute and for which Article 27(2) Rome Statute is beyond doubt the applicable law (Gaeta and Labuda, pp. 157-158; Galand, pp. 158, 161-162).

The conflictual relationship between these Articles 27(2) and 98(1) has come to a head in the saga of the arrest warrant for President Al Bashir of Sudan, issued and circulated by the ICC pursuant to the referral by the Security Council in Resolution 1593 (2005) (para. 1). Various Pre-Trial Chambers have issued a string of decisions attempting to deny personal immunities on shifting grounds: no personal immunities before international tribunals under customary international law; Article 98(1) Rome Statute inapplicable, since there is no personal immunity under customary international law even for officials of third States; no personal immunities because Sudan is in a position analogous to a State party and hence the cooperation regime applicable to parties applies; no personal immunities because of the obligation to cooperate fully, imposed on Sudan by the Security Council in Resolution 1593, para. 2. The Appeals Chamber in the Jordan appeal pretty much adopted all of these grounds (Jordan Referral re Al-Bashir Appeal, respectively paras. 101-117, 127-131, 133-149, 118-119).

In discussing various issues, one might wonder where to begin, when its reasoning is so riddled with flawed arguments. Of course, if we were to take former ICC Judge and President of the ICC Appeals Chamber Eboe-Osuji at his word, we would have to put our faith only in “authoritative literature—not argumentative literature—”. It is certainly tempting to think that his “list of notable academic authorities who have observed that international law rejects immunity for heads of state” (Appendix 2) – i.e., those who agree with him – are authoritative authors, whereas those who accept the continued applicability of (personal) immunities are merely being ‘argumentative’. But by all means, let’s be argumentative!

After all, his observations are preceded by a discussion of the report of the Advisory Committee on Public International Law (Challenges in prosecuting the crime of aggression: jurisdiction and immunities, pp. 13-14, endnotes omitted), a report to which I contributed, which cautioned the Dutch government that States cannot by treaty impose obligations on third States without their consent, and – even if they can delegate jurisdiction to an international tribunal – cannot in this manner circumvent the immunity of officials of a third State not involved in its creation. In other words, States cannot delegate to such a tribunal what they do not themselves possess – i.e. the power to disregard personal immunities. Furthermore, it advised that the concept of an international tribunal was not clearly defined, and not every tribunal could be said to be acting on behalf of the international community as a whole. Indeed, one struggles in vain to find any reference to, or discussion of, the relative effect of treaties in the decision of the Appeals Chamber (although it pops up in the Joint Concurring Opinion Judges Eboe-Osuji, Morrison, Hofmański and Bossa, paras. 339-340), or for that matter to the idea that States cannot delegate to the ICC what they individually have no power to do (nemo dat quod non habet or nemo plus juris ad alium transferre potest quam ipse habet; raised by Kreß and Gaeta as amicus curiae, Jordan Referral re al-Bashir Appeal, paras. 89 and 90).

Now, considering that the Security Council is blocked, and assuming that a proposal will not be put forward by a coalition of willing States or through the Council of Europe (a possible compromise might be an internationalized or hybrid tribunal, as discussed by Heller), the only viable way in the minds of many is to take the route via the General Assembly (see position Ukraine; Goldston and Khalfaoui; Kress, Hobe and Nußberger; Hathaway, Mills and Zimmerman, and authors and bodies referenced at the beginning). That route would certainly provide greater legitimacy if supported by a particularly large majority of members voting in favour, something not at all guaranteed (as noted by especially Heller). However, contrary to popular belief, this will not permit any denial of the personal immunities of President Putin, Prime-Minister Mishustin or Minister of Foreign Affairs Lavrov. Why not, you ask?

The idea that personal immunities could not be invoked before international criminal tribunals originates with the ICJ in the Arrest Warrant case (para. 61), where it noted that immunities, whether functional or personal, do not bar criminal prosecution in all circumstances. In particular, it held that an incumbent or former minister of foreign affairs could face criminal action “before certain international criminal courts, where they have jurisdiction”. It then referenced the ICTY and ICTR created by the Security Council under Chapter VII of the Charter and the future International Criminal Court, and proceeded to quote Article 27(2) of the Rome Statute. Much more has been read into this obiter dictum than can be gleaned from it. The ICJ did not explain its choice for ‘certain’ international criminal courts, and neither the ICJ nor any of its judges addressed the relevance and impact of Article 98(1) Rome Statute.

The observations of the ICJ were then taken up by the Special Court for Sierra Leone in its Taylor Immunity decision, in which it claimed to be a ‘truly international’ criminal tribunal (paras. 37-42), even though lacking Chapter VII powers itself and (baselessly) arguing that the Agreement between the United Nations and Sierra Leone is an agreement between all UN members and Sierra Leone (para. 38). Its argument that Article 24(1) Charter stipulates that the Security Council acts on behalf of all the members of the UN, and that this explains why all members are bound by that Agreement, fails when considering that neither Resolution 1315 and Resolution 1400 (the latter only welcoming the Agreement on the establishment of the Special Court in the preamble and para. 9), nor the Statute of the Special Court for Sierra Leone, impose any obligation on UN members to cooperate with the Special Court. Indeed, to claim that all members are bound by the Agreement, but in effect not having any obligations or rights under it, certainly takes away the point of being bound by a treaty in the first place.

The suggestion that ‘truly international’ tribunals may ignore personal immunities often goes hand in hand with an argument that such tribunals dispense justice on behalf of the international community as a whole and not on behalf of (a) particular State(s) (Referral re Al-Bashir Appeal, para. 115). Following that train of thought, it is then contended that the principle par in parem non habet imperium (an equal does not have authority over another equal) finds no application before such tribunals (ibid.). The phrase ‘international community as a whole’, taken from the concepts of jus cogens (Article 53 Vienna Convention on the Law of Treaties; VCLT) and obligations erga omnes (Barcelona Traction case, paras. 33-34) features in the preamble and Article 5 of the Rome Statute. But it is difficult to understand how the ICC can be said to represent the international community as a whole with the somewhat limited number of 123 members and with large and important States remaining absent. Moreover, the international community (as a whole or otherwise) lacks international legal personality (de Hoogh 1996, pp. 93-95) and the ICC is not and cannot be its (principal) organ or agent.

When the claim is already questionable for the ICC, it will be doubly so if a special tribunal were to be created by a coalition of the willing. Its jurisdiction would be established ex post facto, its exercise of jurisdiction would relate to one situation only, and the nationality of the defendants would pretty much be all but given. Clearly then, a special tribunal created by a coalition of the willing will not act on behalf of the international community as a whole, but will in fact be acting on behalf of Ukraine with other (particular) States acting in concert. Such a tribunal will undeniably not qualify as a ‘truly international’ tribunal.

It is equally hard to see how the international community as a whole, lacking personification, can be argued to possess a jus puniendi (Kreß). National courts are organs of a State – a legal person under both national and international law – and they exercise jurisdiction on its behalf. An international court or tribunal is either embedded within an international organization (the ICJ as principal organ within the UN: Article 92 Charter of the United Nations) or self-standing (the ICC: Article 4 Rome Statute). Yet self-standing international courts or tribunals are almost invariably created by way of treaty, which binds the parties (Article 26 VCLT) but cannot be opposed to third States (Article 34 VCLT). In the absence then of a personified international community, States in effect pool their criminal jurisdiction and delegate this to an international court such as the ICC.

The only organization that could make a fairly legitimate claim to personify the international community is the United Nations, but even that organization lacks a jus puniendi. The UN does not have any claim to be able to establish criminal jurisdiction over individuals in general and to exercise such jurisdiction. The establishment of jurisdiction of the ad hoc criminal tribunals by the Security Council did not entail its possession of judicial powers, as the Appeals Chamber of the ICTY observed (Tadic case, paras. 37-38), but rather constituted an exercise of the Council’s enforcement powers to foster peace and security in the former Yugoslavia.

Although the General Assembly of the UN created the United Nations Administrative Tribunal in the past (now the UN Dispute Tribunal and UN Appeals Tribunal), its function concerned the internal workings of the UN (Effect of Award opinion, pp. 56-58; article 101 Charter). As such, the General Assembly is recognized to be able to take binding decisions concerning the internal sphere of the United Nations but cannot make any binding decisions in its external sphere, and as such lacks the power to impose obligations on members to take action themselves or compel them to implement decisions in their own legal orders (Sands and Klein, Bowett’s Law of International Institutions, pp. 284-286). This, of course, is because the Assembly does not benefit from a provision analogous to Article 25 of the Charter, in which the members, using the language of sovereignty, agree to accept and carry out decisions of the Security Council. This means, in effect, that the Assembly cannot impose obligations on UN members to ignore personal immunities that benefit the members of the troika under customary international law.

Moreover, when a treaty binds an international organization, it cannot impose any obligations or confer any rights on a third State or organization “without the consent of that State or that Organization” (Article 34 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations). Indeed, a provision on this matter proposed by the ILC making an exception under strict conditions, Article 36 bis (p. 43), was rejected during the 1986 Conference (p. 195). Thus, if the General Assembly were to initiate the negotiation and conclusion of an agreement with Ukraine on creating a special tribunal for aggression, the resulting agreement would bind only the UN, Ukraine and such other States as would accept it.

In short, personal immunities benefiting the Russian troika under customary international law cannot be ignored before a special tribunal, even when declared inapplicable by the General Assembly itself or in an agreement between the UN and Ukraine. The matter may perhaps be considered closed in the context of the ICC’s legal framework, since, paraphrasing Hobbes (Chapter XXVI, Of Civill Lawes), ‘authority, not truth, makes the law’ (in the Latin edition: sed authoritas, non veritas, facit legem). But in academia truth is what matters and the truth of the matter is that the international law on personal immunities is not that declared in the Jordan Referral re Al-Bashir Appeal judgment. In the current state of international organization, resistance to personal immunities is futile!