SCSL Symposium: The Important Contributions of the Special Court for Sierra Leone on Amnesties and Immunities–Reinforcing Foundational Principles of International Criminal Law, Part II

[Leila Nadya Sadat is the James Carr Professor of International Criminal Law and the Director of the Whitney R. Harris World Law Institute at the Washington University School of Law. sadat@wustl.edu. This essay was initially prepared at the request of FIU Law Review for its micro-symposium on The Legal Legacy of the Special Court for Sierra Leone by Charles C. Jalloh (Cambridge, 2020). An edited and footnoted version is forthcoming in Volume 15.1 of the law review in spring 2021.]

Head of State immunity: Chapter 8 sets out the legal issues posed by the decision of the Court’s Chief Prosecutor to prosecute Charles Taylor, who was, at the time of his indictment, the President of Liberia.  Taylor’s defense team argued that as a Head of State he was immune from prosecution. Relying upon the decision of the International Court of Justice in Yerodia, which had held that Belgium could not issue an arrest warrant directed at a sitting Congolese Foreign Minister, the Taylor defense argued essentially that Taylor was immune from criminal prosecution because the Special Court was tantamount to a domestic tribunal. The Special Court disagreed, finding that the SCSL was an international criminal tribunal,  and therefore entitled to exercise jurisdiction over Taylor.

In Taylor, the SCSL Appeals Chamber relied upon the decision in Yerodia to distinguish the jurisdiction of international and national criminal tribunals when faced with Heads of State or other high-ranking members of government. At the same time, the Chamber admitted that it was not immediately evident why national and international courts differ as to their treatment of immunities under international law. Its reasons included the fact that no question of state sovereignty was raised given the Court’s status as an international organ; and that as a matter of policy, States have accepted that the collective judgment of the international community provides a vital safeguard against the potential destabilizing effect of unilateral judgments in this area. (For amicus submitted to the SCSL on this issue see here). As Professor Jalloh notes, although the reasoning of this decision has been criticized, many other observers–including Professor Jalloh himself–believe that the Appeals Chamber came to the right result, even if the manner in which it did so was not entirely convincing.

It is not the purpose of this short contribution to thoroughly address the question of immunities and amnesties before international criminal courts and tribunals in a comprehensive manner. I have addressed many of these questions in earlier writings (see here and here), and space does not permit a complete treatment here. However, I would like to briefly draw attention to the question of methodology and approach, for, as is generally the  case when resolving  a legal ambiguity, the outcome depends upon the initial questions presented. 

Scholars and practitioners of international criminal law tend to approach the question of amnesties, immunities, jurisdiction and other elements of international criminal law (as regards core crimes) from two different and competing perspectives. Some view the question whether the immunities of Heads of State extant in interstate proceedings apply before international courts and tribunals, or regarding the effect of domestic amnesties before international courts and tribunals, as requiring a comprehensive examination of state practice in national cases. (The statist approach). Others begin with the international system and the principles underscoring it. (The internationalist approach).

The statist approach was particularly evident in the litigation before the International Criminal Court on the question whether the ICC could exercise jurisdiction over a Head of State from a nonstate party in a situation  that had been referred to the court by the United Nations Security Council.  The argument was made by several states and litigants, as well as by amici and many scholars, that State practice regarding interstate exercises of criminal jurisdiction applied by analogy to the International Criminal Court’s exercise of jurisdiction over Heads of State. This “ground up” approach, which some members of the International Law Commission have also employed in the ILC’s study on immunity (see here), causes them to ask whether state practice supports the jus cogens regime in national and international jurisdictions. In other words, they make no distinction between jus cogens and non jus cogens offenses which are international crimes that are the subject of a nonderogable prohibition under international law. This conflates principles of international law applicable in interstate proceedings with the regime applicable to the direct application of international criminal law in international criminal courts and tribunals. Thus, they do not clearly distinguish between the application of immunities or other elements of international criminal law on a vertical, as opposed to a horizontal, level.

A second internationalist approach, which I have argued in a recent essay on the Al Bashir case at the ICC, is a more suitable framework in analyzing these issues before international criminal courts and tribunals, is to understand the question of the immunity of Heads of State before international criminal tribunals as requiring of international, not national, practice, for international courts and tribunals do not derive their power from delegations of state jurisdiction (although “delegation” sometimes surfaces as a description of how States may create an international organization). Instead, at least since the establishment of the United Nations system, the international legal system and the institutions created therein operate in an autonomous sphere (limited by their Charters and international law). The SCSL decided in the immunities decision, finding that the Court, because of the manner of its creation and its pedigree, was an “international court” along the lines of similarly created (although not identical) institutions – the ICTY, the ICTR, and, of course, the ICC. For this reason, it found that it fit squarely within the Yerodia exception. Likewise, in its 2019 decision in the Al Bashir case, the ICC Appeals Chamber resolved the case similarly. Although Jordan had argued before the Appeals Chamber that the ICC was a ‘foreign’ court, and that it could not exercise jurisdiction over Al Bashir who was a sitting Head of State, without Sudan’s permission, the Appeals Chamber relied, inter alia,  upon the decision of the SCSL to find

There is neither state practice nor opinio juris that would support the existence of Head of State immunity under customary international law vis-à-vis an international court. To the contrary, such immunity has never been recognized in international law as a bar to the jurisdiction of an international court. Judgment in Jordan Referral re Al-Bashir Appeal

The ICC Appeals Chamber decision was accompanied by a concurrence addressing the question of what is meant by the term “international court.” The concurrence defines “international court” as “an adjudicatory body that exercises jurisdiction at the behest of two or more states” and refers to the SCSL’s Taylor case as evidence that Heads of State do not have immunity before international criminal courts as regards the commission of international crimes. While the opinion may be broader than strictly required, the ICC Appeals Chamber took the view that the question of whether an international court must respect the immunity of a Head of State on international crimes is governed by international law principles that are different than the question of immunities before national courts. Which of course, is implied by Yerodia itself.

Whether the ICC Appeals Chamber sufficiently addressed the thoughtful concerns raised by Professor Jalloh regarding the outer limits or even threshold inquiry of the “international court” requirement remains to be seen. Yet it seems to me that Professor Jalloh overstates the position of scholars when he argues that they nearly all agree that is not the fact that it is an international court that is determinative. In fact, it is the combination of an international criminal court hearing a case involving core international crimes that gives rise to the proposition that no immunities apply. In the Al Bashir case, Professor Claus Kress argued that this was mandated by customary international law. The Appeals Chamber found no rule of custom created the immunities because they had never existed before international criminal courts and tribunals. Either way, it is most certainly the combination of international adjudication combined with indictment for core crimes that causes the immunity claim to fail.

Turning to the question of amnesties, the Special Court for Sierra Leone took essentially the same approach as it (later) did on the problem of immunities, finding that as an international court, the SCSL was not bound by the provisions of the Lomé Agreement, and therefore did not need to investigate whether or not the blanket amnesty offered by the Lomé Peace Agreement was valid before the courts of Sierra Leone. It did suggest, however, that the prosecution of war crimes and crimes against humanity were possibly required given the peremptory nature of the norm and its erga omnes character. Professor Jalloh has criticized not only this element of the case, but the decision that the amnesty was inapplicable before the SCSL itself, as representing “a judicial misunderstanding of how customary international law is formed,” citing the Jurisdictional Immunities case of the ICJ for a repudiation of the distinction between substance and procedure. This is where we part company because, as noted above, my (internationalist) starting point is quite different.

In my view, the Jurisdictional Immunities case has not set aside the important developments of international criminal law that have, since the Nuremberg judgment (and as codified by the ILC itself in its 1996 Draft Code of Crimes), seen the jus cogens or peremptory nature of crimes against humanity, war crimes, genocide, and aggression as accompanied by a necessary procedural regime that ensures that their application can be successful. Given that Jurisdictional Immunities did not decide anything about international criminal prosecutions at all, but involved civil claims brought against the Federal Republic of Germany in Italian courts based upon violations of international humanitarian law, it cannot be relied upon to show that the jus cogens status of an offense is meaningless as regards procedural issues such as standing, amnesties, immunities, etc. before an international criminal court or tribunal. The better view was expressed by the International Criminal Tribunal for the former Yugoslavia in Prosecutor v. Furundžija, regarding the crime of torture:

While the erga omnes nature [of the crime] at pertains to the area of international enforcement (lato sensu), the other major feature of the principal prescribing torture   relates to the hierarchy of rules in the international normative order. Because of the importance of the values it protects, this principle has evolved into a peremptory norm or jus cogens. Furundžija Judgment

The Trial Chamber thus found, inter alia, albeit in dicta, that amnesties for international crimes were not permissible before international criminal courts. As to the legality of amnesties before national courts, that is, either in the jurisdictions where they were granted, or in interstate cases, the cases are unanimous in striking down blanket amnesties in national courts for core international crimes, suggesting that the SCSL got it right in 2004. It is odd that the Special Court of Sierra Leone’s decision on amnesties should therefore have attracted so much criticism, given that its amnesty judgment is completely consistent with existing case law emanating from international and national courts. This was true in 2006 when I wrote an article surveying existing case law, and Amnesty International completed a study in 2017 confirming the trend that was submitted to the International Law Commission as part of its project on crimes against humanity.

Of course, these issues are complex, and it is difficult to do them justice in just a few pages. Yet, as this short contribution surely shows, the work of the Special Court for Sierra Leone, and the analysis of the Court’s work by Professor Jalloh are of great contemporary relevance.