It is well established principle of Public International Law that customary law prevents the exercise of criminal jurisdiction by States against Heads of other States [Arrest  Warrant  of 11 April 2000  (Democratic Republic of the Congo v. Belgium), [2002] ICJ Reports 3]. The scope of this immunity also includes any act of authority which would hinder the Head of State in the performance of his duties. In international law it is firmly established that certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal. This immunity and inviolability protect the individual concerned against any act of authority of another State which would hinder him/her in the performance of his/her duties.

There have been a multitude of high profile cases in national courts arraigning foreign heads of state or senior officials (R v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 3), [1999] UKHL 17; Gaddafi, Court of Appeal of Paris, Court of Cassation (2001); Yaser Arafat (Carnevale re. Valente  Imp. Arafat e Salah), Italy, Court of Cassation (1985); Republic of the Philippines v. Marcos, United States Court of Appeals, 2nd Circuit (1986); In re Estate of Ferdinand E. Marcos Human Rights Litigation; Trajano v. Marcos, United States Court of Appeals, 9th Circuit (1992);United States of America v. Noriega, United States Court of Appeals, 11th Circuit (1997); Attorney General of Government of Israel v. Adolf Eichmann, District Court of Jerusalem (1961) and Appeal Tribunal (1962); Prosecutor v. Hissène Habré, Court of Appeal of Dakar (Senegal) (2001)).

Even if the Head of the State is alleged to have committed war crimes or crimes against humanity, in the absence of any customary international law, any form of exception to the rule according immunity from criminal jurisdiction and inviolability is generally not allowed. This is in relation to actions presented before foreign national courts.

But there are certain circumstances when they can be prosecuted. They can have no criminal immunity under international law in their own countries and can be tried by the domestic courts. Again they cease to enjoy immunity from foreign courts if the State which they represent waives the immunity. Also after he/she has demitted office, a foreign court can try such individual in respect of acts committed prior or subsequent to his/her period of office and also in respect of acts committed during that period of office in a ‘private’ capacity.  And the last circumstance is the case before an international tribunal.

Thus the scenario is different in the case of the International Criminal Court (ICC). The Rome Statute established the ICC and with its establishment various novel questions are being decided by the Court itself.  Can the Court try any Head of a State where the State is not a party to the statute? Whether there exists any derogation to the general regime of immunities under international law when the Court seeks the arrest and surrender of a person enjoying immunity as a Head of State? Whether there exists a duty on the part of State Party to execute the request for arrest and surrender of a Head of a State of a non-state party to the Court while he/she is on that state’s territory? Is there any rule in customary international law which excludes the immunity for Heads of State when their arrest is sought for international crimes by another State, even when the arrest is sought on behalf of the International Criminal Court?

The curious case against the President of Sudan, Omar Al-Bashir, has been initiated by  Security Council Resolution 1593 (2005). The Security Council, acting under Chapter VII of the Charter of the United Nations, referred the situation in Darfur to the ICC Prosecutor. State Parties are required to cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court (Article 86).

Article 27(2) of the Statute further states that ‘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.’ The International Criminal Court had already held that since immunity from arrest would bar the Court from the exercise of its jurisdiction, the general exclusionary clause of article 27(2) of the Statute, in its plain meaning, also encompasses that immunity. It reasoned that had the case been otherwise and the drafters of the Statute intended exclusion only of a narrow category of immunities, they would have expressed it in plain language.

The ICC in Prosecutor v. Omar Hassan Ahmad Al-Bashir, Pre-Trial Chamber II (July 2017) has observed that functional immunities based on official capacity are not provided in international law for the benefit of a particular individual, but are grounded on the need to avoid interference with the functioning and sovereignty of one State by another State. By ratifying the Rome Statute, States Parties have in fact accepted the irrelevance of immunities based on official capacity, including those that they may otherwise possess under international law.

ICC has held that any immunity belonging to a State Party, including that of its Head of State, is irrelevant and cannot be raised as a ground for refusing the arrest and surrender of a person sought by the Court. In accordance with the Statute, a State Party would have the duty to arrest and surrender to the Court its own Head of State if the Court made a request for cooperation to that effect.

The ICC has further held that a State Party cannot refuse to arrest and surrender an individual on the grounds that the individual benefits from immunities based on official capacity belonging to another State Party to the Statute. Just as States Parties cannot invoke their “own” immunities based on official capacity to refuse to cooperate with the Court, they cannot invoke those same immunities when cooperation in the arrest and surrender of a person is provided by another State Party. Thus a State Party cannot refuse to comply with a request by the Court for the arrest and surrender of the Head of State of another State Party as any possible immunity vis-à-vis the Court has been rendered inapplicable with the ratification of the Rome Statute. The irrelevance of immunities based on official capacity with respect to proceedings before the Court is incorporated in the Statute as a basic principle to which States Parties subscribe by having voluntarily ratified the Statute.

States that are not parties to the Statute in principle have no obligation to cooperate with the Court and the irrelevance of immunities based on official capacity as enshrined in article 27(2) of the Statute has no effect on their rights under international law. Conversely, with respect to States that are not parties to the Statute, the applicable regime is that of article 98(1) of the Statute which provides that the Court shall not make a request for arrest and surrender to a State Party (imposing on it a duty to cooperate) which would require the State Party to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity belonging to a State not party to the Statute. Thus the Court may not, in principle, without first obtaining a waiver of immunity, request a State Party to arrest and surrender the Head of State of a State not party to the Statute.

But the Rome Statute provides for situations where obligations defined in the Statute may become incumbent upon a State not as a result of its acceptance of the Statue but as a result of, and under, the Charter of the United Nations. The effect of a Security Council resolution triggering the Court’s jurisdiction is that the legal framework of the Statute applies in its entirety, with respect to the situation referred.

The Security Council in the Al-Bashir case further decided that Sudan shall cooperate fully with the Court which in addition to triggering the jurisdiction of the Court also imposed on Sudan an obligation vis-à-vis the Court (to cooperate fully and provide any necessary assistance) which Sudan would not otherwise have as it has not ratified the Statute.

The ICC observed in the Al-Bashir case that the necessary effect of the Security Council resolution triggering the Court’s jurisdiction in the situation in Darfur and imposing on Sudan the obligation to cooperate fully with the Court, is that for the limited purpose of the situation in Darfur, Sudan has rights and duties analogous to those of States Parties to the Statute even though it is an expansion of the applicability of an international treaty to a State which has not voluntarily accepted it as such. It reasoned that it was in line with the Charter of the United Nations which specifically permits the Security Council to impose obligations on States.

As a result of Security Council Resolution 1593, the interactions between Sudan and the Court with respect to the Court’s exercise of jurisdiction in the situation in Darfur are regulated by the Statute. One consequence of this is that article 27(2) of the Statute applies equally with respect to Sudan, rendering inapplicable any immunity on the ground of official capacity belonging to Sudan that would otherwise exist under international law. Sudan cannot claim vis-à-vis the Court Omar Al-Bashir’s immunity as Head of State. Sudan has the obligation to arrest him and surrender him to the Court.

The Court has held in the Al-Bashir case that immunities of Omar Al-Bashir as Head of State do not apply vis-à-vis State Parties when they seek to execute a request for arrest and surrender issued by the Court in the exercise of its jurisdiction in the situation in Darfur. Accordingly, article 98(1) of the Statute is not applicable to the arrest of Al-Bashir and his surrender to the Court. Thus no immunity needs to be waived and States Parties (in this case South Africa) can execute the Court’s request for arrest and surrender of Al-Bashir without violating Sudan’s rights under international law.

It will be pertinent to mention that the ICJ in the Arrest Warrant case, in relation to foreign national courts, pithily observed that the rules governing the jurisdiction of national courts must be distinguished from those governing jurisdictional immunities. Jurisdiction does not imply absence of immunity while absence of immunity does not imply jurisdiction. Even though various States may extend their criminal jurisdiction in following certain international conventions yet such extension of jurisdiction cannot affect immunities under customary international law. Again immunity from criminal jurisdiction and individual criminal responsibility are different. While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law. Jurisdictional immunity may bar prosecution for a certain period or for certain offences but it cannot exonerate the person to whom it applies from criminal responsibility.

Thus the expanding scope of the International Criminal Court’s power and jurisdiction in dealing with the Head of States is adding to a more robust mechanism with dealing serious crimes which were earlier left unpunished. The recent ruling in the Sudanese President’s case that the rights and obligations as provided for in the Statute, including article 27(2), are applicable to the non-state party Sudan (by imposition of the Security Council acting under Chapter VII of the UN Charter) and hence the immunities of Omar Al-Bashir as Head of State do not bar States Parties to the Rome Statute from executing the Court’s request of his arrest and surrender for crimes under the jurisdiction of the Court allegedly committed in Darfur is an addition to the growing Court’s jurisprudence. Now it can be said that immunity no more means impunity!

The writers are Mumbai-based advocates and legal consultants.