09 Nov The AU’s Position on Personal Immunity: A Response to Coracini & Trahan
Astrid Coracini and Jennifer Trahan have a new post at Just Security that argues a Special Tribunal for the Crime of Aggression created either by treaty or by a General Assembly-endorsed agreement between Ukraine and the UN would not have to recognise the personal immunity of Russian officials. I disagree, for reasons I have explained in a recent article in the Journal of Genocide Research. I don’t want to repeat that critique. Instead, in this post, I want to focus on an aspect of their argument that I have not seen before: namely, the insinuation that the African Union (AU) believes international courts do not have to recognise personal immunity. I assume that claim is a response to my contrary one in the article mentioned above — opposition that I have cited as a reason to be skeptical of the idea (endorsed by a number of scholars) that the General Assembly will support a Special Tribunal in large numbers.
Here is what Coracini and Trahan say about the AU, referencing the Jordan case:
It is worthy of note that during the proceedings, the African Union had not contested the customary nature of Article 27, but only its applicability on the horizontal level between state parties and non-state parties to the Rome Statute. As regards the position vis-à-vis international courts, the African Union had explicitly recognized the non-applicability of personal immunities of sitting heads of states before the ICC. It confirmed that Article 27(2) “concerns the exercise of jurisdiction by the Court over a person” and “excludes the operation of immunity before the International Criminal Court” (Submission of the African Union, para. 14). Most importantly, this assessment was not based on the Security Council’s referral of the situation; the African Union expressly stated its view that Security Council Resolution 1593 “did not have the effect of removing, whether directly or indirectly, the immunities of President Al Bashir” (id., para. 10).
Although Coracini and Trahan are not mischaracterising what the AU argued, it is simply not the case that the AU accepts personal immunity doesn’t apply “vertically” before international courts.
First, it is important to be precise about what the AU argued in the Jordan case. The AU did indeed accept that Art. 27 prohibits a sitting head of state from invoking personal immunity before the ICC. It could hardly do otherwise, given the text of Art. 27. But the AU explicitly argued that personal immunity nevertheless prohibits all states, even those party to the Rome Statute, from arresting a sitting non-party head of state or surrendering him to the Court. Hence its submission in para. 10 that “States Parties and States not parties [sic] alike continue to be obligated to respect the immunities of President Al Bashir under customary international law” and its argument in para. 16 concerning the relationship between Art. 27 and Art. 98 of the Rome Statute:
In a sense, Art. 98(1) serves as a without prejudice clause, leaving intact the customary international rules pertaining as between States Parties and non-Parties inter se. Thus while the Court may have jurisdiction over a head of state not Party to the Rome Statute in terms of Art. 27, the duty to cooperate in the arrest and surrender does not apply in relation to a head of non-State Party.
In other words, the AU’s position in the Jordan case is this: although the ICC can prosecute a government official entitled to personal immunity if it has him in custody, no state in the world has the right to arrest the official or surrender him to the Court — not even states that are obligated to cooperate with the Court by virtue of their membership. That is hardly a robust endorsement of the idea that personal immunity doesn’t apply before international courts, because it limits prosecution to situations in which a government official with such immunity voluntarily surrenders to the Court.
The problems with Coracini and Trahan’s account of the AU’s position go even deeper, however, because it is simply not the case that the AU believes personal immunity is limited to “horizontal” relationships between states. It may have offered arguments that can be read that way in the specific context of the Jordan case, but the official decisions of its Assembly leave no doubt that the AU believes personal immunity applies before all courts, national or international. Indeed, the Assembly said precisely that in its Decision on Africa’s Relationship with the International Criminal Court, adopted in 2013 after the election in Kenya that brought Kenyatta and Ruto to power. Here are the relevant paragraphs of the Decision, which Coracini and Trahan don’t mention (emphasis mine):
9. REAFFIRMS the principles deriving from national laws and international customary law by which sitting Heads of State and other senior state officials are granted immunities during their tenure of office;
10. NOW DECIDES:
(i) That to safeguard the constitutional order, stability and, integrity of Member States, no charges shall be commenced or continued before any International Court or Tribunal against any serving AU Head of State or Government or anybody acting or entitled to act in such capacity during their term of office;
(ii) That the trials of President Uhuru Kenyatta and Deputy President William Samoei Ruto, who are the current serving leaders of the Republic of Kenya, should be suspended until they complete their terms of office.
These paragraphs do not simply affirm that no state can arrest or surrender a government official entitled to personal immunity. They make clear the AU believes personal immunity prohibits the ICC from prosecuting any such official. And not just the ICC — “any International Court or Tribunal.”
The AU’s robust defence of personal immunity in its 2013 ICC Decision is not surprising. After all, when the AU adopted the Malabo Protocol in 2014, extending the jurisdiction of the proposed African Court of Justice and Human Rights to a variety of international crimes — including aggression — it specifically prohibited the prosecution of government officials entitled to personal immunity. Here is the text of Art. 46A bis, entitled “Immunities” — and note the similarity to paragraph 10 in the 2013 ICC decision:
No charges shall be commenced or continued before the Court against any serving African Union Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.
Coracini and Trahan’s post doesn’t mention the Malabo Protocol either, and it’s obvious why: her position asks us to accept that the AU believes personal immunity can be set aside by an international court it has consistently condemned as racist and neocolonial but must be recognised by an international court the AU itself created. That is unconvincing, to put it mildly.
In short, there is every reason to believe that the African Union will not support a Special Tribunal if it is empowered to set aside the personal immunity of Russian officials. As the AU’s 2013 ICC Decision and the Malabo Protocol make clear, the AU believes that personal immunity applies before all courts, international as well as domestic.
I am posting this on behalf of Astrid Coracini, because our comment system is being wonky.
Let me take this opportunity to repeat or, as the case may be, clarify what Jennifer and I wrote in our post, in particular, that when we wrote A, we actually meant A and did not insinuate Z.
Our post at Just Security is part of a series on the establishment of a Special Tribunal for the Crime of Aggression (STCoA) committed against Ukraine. It is part VI of this series dealing with the non-applicability of personal immunities. Readers of the series will know that the proposed tribunal would prosecute perpetrators of the crime of aggression who fulfil the leadership element, that is “person[s] in a position effectively to exercise control over or to direct the political or military action of a State”. Our understanding is that neither functional nor personal immunities bar the prosecution of crimes under international law, including the crime of aggression. But having had several discussions on the issue, we thought it would be helpful to shed particular light on the question of personal immunities.
Based on the ICJ’s Yerodia dictum (judgment para. 61), our argument is 1. Under customary international law, personal immunities are non-applicable (in fact, they are a non-issue) before (“certain”) international courts and tribunals. 2. We argue why the proposed STCoA could be considered a (“certain”) international court or tribunal. If I understand correctly (although you took out this part when publishing a revised version of your post), you agree with 1, yet you differ with 2. Fair enough, but clearly, this is not the subject matter of your post.
So, allow me to clarify:
A) When we say Article 27 ICC Statute reflects customary international law, we refer to Article 27 in its fundamental meaning that immunities do not bar the ICC from exercising its jurisdiction over a person standing before the court.
We refer to the ICC judgment in the Jordan appeal because it confirms that article 27 reflects customary international law. We do not go into the substance of the Jordan appeal as to the consequences of this assessment. Whether this means that article 27 covers all (stages of) proceedings and, most importantly, whether states parties executing a cooperation request from the ICC would act as agents of the ICC (and would thereby be covered by the vertical cooperation regime). Scholars and states may have different views on this and we acknowledge that the topic remains controversial. But it is irrelevant to our cause. As we explain, states that are not parties to a bilateral treaty between the United Nations and Ukraine are under no obligation to cooperate. Thus, the STCoA will have no competence (comparable to article 89 ICC Statute) to demand cooperation from a state that claims inconsistency with an obligation under international law with respect to immunities. That may lead to the result that not all states voting for the establishment of a StCoA in the General Assembly would later on actively cooperate with the tribunal. One may say this is unfortunate, but it is not unknown of (cf e.g. Security Council Resolution 1593 deciding that only the Sudan and other parties to the conflict shall cooperate with the ICC; also cases of non-cooperation before the ad hoc tribunals or the ICC even from state that are under an obligation to cooperate). On the other hand, this could also provide an opportunity for states (with concerns regarding the customary law avenue in the ICC judgment in the Jordan appeal) to enable the establishment of a STCoA while leaving the question of cooperation to a future case-by-case decision.
When we refer to the position of the African Union, which you confirm to be a correct quote, it is exactly to strengthen our point on the customary status of the fundamental meaning of article 27. We even make it undoubtedly clear that albeit not contesting the customary nature of article 27, the AU indeed contested “its applicability on the horizontal level between state parties and non-state parties to the Rome Statute”.
The AU confirms that article 27 concerns the ICC’s jurisdiction over persons, that it excludes the operation of immunity before the court and at the same time argues that Security Council Resolution 1593 did not remove any immunities. It is our understanding, that this can only mean article 27 is rooted in customary international law. Nothing more is said, nothing more is insinuated. If one came to another result, one would need to question the ICC’s authority to prosecute nationals of non-states parties, including the members of the troika of Russia or Belarus for alleged crimes committed on the territory of Ukraine.
B) Nowhere in the post do we say or insinuate anything about possible voting behaviour of any state, should the establishment of a STCoA come before the General Assembly. On the contrary, we do neither see it as our role as legal scholars to make such predictions nor would we consider it to be the appropriate time.
Ukraine and other states are currently exploring ways how a STCoA could be established. Several options are on the table. Our post aims at showing a possible path for the establishment of an international tribunal in cooperation with the United Nations. It will be up to states whether or not to pursue this path. Our task is merely to demonstrate an avenue that is legally possible. As these consultations are still at an early stage we would not want to forecast any possible outcome or preclude options by foretelling opposition that may not have been formally voiced on the diplomatic level.
Finally, we are far from envisaging or wanting to envisage any reasons for why a state might or might not join the effort to establish a STCoA. As the claim of “insinuating”was formulated with a view to a potential position of the African Union, let me share the following considerations: We are not aware of any official statement of the African Union on the question of the establishment of a STCoA through the General Assembly, the African Union has no vote in the General Assembly, and we have seen in previous votes on resolutions condemning the aggression against Ukraine that the states of the African group do not form a monolithic block. But independent of their regional affiliation, we would not want to anticipate any state’s consideration of support or non-support. May it be to express outrage about a flagrant and manifest violation of the UN Charter, to defend the rule of law, to show solidarity with Ukraine, to stand up against oppression and imperialism, to prevent future acts of aggression against one’s own territory, or to make the point that leaders, including those of a P5, are not beyond accountability. These considerations and political motives are up to the states. What is relevant on a legal level is that the path taken is in accordance with international law and that states are of the opinion that they act in accordance with international law.