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In the second of a two-part series considering whether the International Criminal Court’s approach is unlawful, James Onalaja explores Head of State immunity and suggests an alternative approach to Putin’s arrest warrant
Following the International Criminal Court’s (ICC) warrant for the arrest of Vladimir Putin for alleged war crimes of unlawful transfer of Ukrainian children from occupied Ukraine to Russia, contrary to Article 8(2) of the Rome Statute (RS), Part 2 of this series addresses the ICC’s misunderstanding of historic case law and state practice leading to the arrest warrant; the approach it ought to adopt on the said arrest warrant consistent with its treaty and customary international law; and the potential impact of this on the proposed tribunal on the crime of aggression.
The ICC Appeal Chamber (ICC-AC) (paras 112-113) in agreement with its Pre Trial Chamber (ICC-PTC) in Malawi’s dispute of the obligation to execute the Al-Bashir arrest warrant (‘Al-Bashir/Malawi PTC Decision’, para 39), further relied on the historic Head of State and senior state officials’ prosecutions at international tribunals to support the finding that there is neither state practice nor opinio juris which supports the existence of Head of State immunity under customary international law vis-à-vis an international court. This is, however, based on a misunderstanding of historic case law and state practice. The Nuremberg and Tokyo Tribunals provide no support for the ICC’s assertion. At the time of those prosecutions, both Germany and Japan had surrendered to the Allies who assumed the position of occupying powers in control of both countries. As a result, any officials of the previous Nazi or Japanese regimes prosecuted had been removed from office and thus no longer enjoyed any personal immunity.
With respect to the ad-hoc tribunal case law, although Slobodan Milosevic (Prosecutor v Slobodan Milosevic, IT-02-54, TCh, Decision on Preliminary Motions, 8 November 2001) and Milan Milutinovic (Prosecutor v Sianovic et al, IT-05-87, TCh, Decision on Milutinovic Motion for Provisional Release, 22 May 2007) were both indicted and had warrants for their arrest issued while serving as Head of State of the Federal Republic of Yugoslavia and President of Serbia respectively, these cases provide very limited support for the ICC’s assertion. Quite apart from the fact that the International Criminal Tribunal for the Former Yugoslavia (ICTY) was set up by the United Nations Security Council (UNSC) acting under Chapter VII powers which could be utilised to set aside states’ personal immunity rights, by the time Milosevic was surrendered in 2001, he was no longer a serving president and had been arrested by the Yugoslav authorities. He therefore did not enjoy any personal immunities at the time of his arrest and appearance before the ICTY. Milutinovic also surrendered himself to the ICTY after the end of his term.
Neither do the cases of Laurent Gbagbo (Prosecutor v Laurent Gbagbo ICC-02/11, PTC III Warrant of Arrest, 23 November 2011) and Charles Taylor provide much support. Gbagbo was a former Head of State at the time of his arrest and surrender to the ICC and in any event, any existing immunities he enjoyed, had been waived by Ivory Coast’s declaration of its unconditional acceptance of ICC jurisdiction under Article 12(3) RS. Not only was the Taylor Decision based on an inaccurate interpretation of the Arrest Warrant Case as set out in Part 1, it was furthermore an unnecessary decision due to the fact that by the time of his surrender to the SCSL, Taylor was no longer a serving Head of State and thus did not enjoy any personal immunities which could have prevented the court from exercising its jurisdiction over him (para 59). Thus, contrary to the ICC-PTC and ICC-AC assertions in Al-Bashir, there is little evidence of state practice or opinio juris that sitting Heads of State may be arrested and tried for international crimes before international courts.
Thus, the ICC-AC in Al-Bashir was incorrect when it concluded that Article 27(2) RS simply reflects the status of customary international law that a Head of State cannot claim Head of State immunity when s/he appears before the ICC in accordance with the provisions on the exercise of its jurisdiction (paras 102-103). As the ICC is a treaty-based court (Article 12 RS), pursuant to Article 86 RS only state parties are under an obligation to cooperate with the court, including with its request pursuant to Article 89 for the arrest and surrender of suspects. However, this obligation cannot require state parties to execute Putin’s arrest warrant, while a president of a non-party state without an Article 12(3) RS declaration by Russia.
Article 27(2) 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.’ To understand the true meaning of that provision and its applicability to Putin, this has to be read in conjunction with Article 12(1) and Article 98(1) which provides that: ‘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.’
Read together, the only logical conclusion that could be reached is that Article 27(2) simply reflects the fact that by becoming party to the statute or by making an Article 12(3) declaration, a state waives its customary international law right to the immunities of its seating officials including its Head of State. This is wholly consistent with Article 98, which confirms that the customary international law principle of personal immunities pertaining to high officials including the Head of State of non-State parties remain applicable before the ICC and with respect to a request for surrender of such an individual to the ICC. Where the ICC requests from a state party the arrest and surrender of a seating Head of State of a non-state party such as Russia, the court may only proceed with such a request if the cooperation of the non-State party has been obtained, by way of a waiver of its customary international law immunity right, as the continuation of such immunities would prevent the arrest at the national level.
The status of the arrest warrant for Putin can be further distinguished from that for Al-Bashir as the Ukraine situation was not referred to the ICC by the UNSC acting under Chapter VII powers which could have arguably imposed a clear obligation on all states to cooperate with the issued warrant and arrest Putin in disregard of his personal immunity. Indeed, no such resolution is ever likely from the UNSC while Russia holds a veto. It thus follows that as long as Putin remains President of Russia, the ICC may not oblige state parties such as South Africa to violate their obligations under customary international law to arrest and surrender Putin (if he were to set foot on their territory) nor proceed with Putin’s actual prosecution, without first securing the consent of the Russian federation for a waiver of his personal immunity.
However, the ICC’s issuance of an arrest warrant for Putin alone would not amount to a violation of his personal immunity so long as the court does not require state parties to act on it inconsistently with Article 98 RS. The issuance of a warrant under Article 58 RS by the ICC-PTC effectively amounts to the court’s initiation of proceedings against Putin. If the warrant was issued and served solely on Putin and the Russian Federation this arguably will only amount to Putin and the Russian Federation being put on notice of the court’s intention to instigate proceedings against Putin and provide the Russian Federation the opportunity to waive its right to the personal immunity of its Head of State. In those circumstances, it would not intend to orchestrate Putin’s arrest in violation of the rights of the Russian Federation.
So, what impact does this have on the proposals for an ad-hoc special or hybrid tribunal to try Putin and other Russian high officials for the crime of aggression? There is on ongoing debate about whether this ought to be an ad-hoc International Special Tribunal (IST) as preferred by various NGOs and academics, or a hybrid tribunal based within the Ukrainian criminal jurisdiction, as preferred by the UK, US, and German governments.
Critics of these Western powers have voiced concern that a hybrid tribunal established under Ukrainian national law and placed within its domestic jurisdiction will not be able to set aside the personal immunities of the highest serving Russian officials of President Putin, Prime Minister Mikhail Mishustin, and Foreign Secretary Sergey Lavrov, whom out of those that may be charged, may lay claims to existing personal immunities. This would be unlike the IST which (considering the current impotence of the UNSC on this issue) may be established by a UN General Assembly (UNGA) resolution, thus (it is argued) providing it with the strongest status of an international tribunal to prevent immunities of these sitting Russian high officials playing any role (‘Immunities and a Special Tribunal for the Crime of Aggression against Ukraine’, Open Society Justice Institute, 1 February 2023, para 16; Kevin Jon Heller, ‘The Jordan Appeal Supports a Hybrid Tribunal Denying Personal Immunity’, Opinio Juris, 6 February 2023). These personal immunities will be highly relevant if Ukraine’s Prosecutor General Andriy Kostin’s wish of trying these high Russian officials in absentia becomes a reality.
Firstly, as the ICC-AC in Al-Bashir observed, ‘an international court or an international tribunal…is an adjudicatory body that exercises jurisdiction at the behest of two or more states. Its jurisdiction may be conferred in one of a variety of ways: such as by treaty; by instrument of promulgation; referral or adhesion made by an international body or functionary empowered to do so; or indeed by adhesion or referral through an arbitrary clause in a treaty. A court that operated physically or in principle within a domestic realm exercises international jurisdiction where such jurisdiction result in any manner described above’ (para 56).
A hybrid tribunal within Ukraine’s judicial system could also be internationalised by a UNGA resolution (agreed under the Uniting for Peace provisions following the UNSC’s failure to exercise its primary responsibility for maintaining international peace and security) requesting the UN Secretary-General to create a hybrid tribunal with Ukraine to try the crime of aggression, followed by an agreement between Ukraine and the UN to create the said tribunal, arguably as achieved in Cambodia (Heller: 2023). The resulting tribunal would clearly satisfy the test set out above for an international court or tribunal. However, as demonstrated in this two-part series, the international status of the tribunal alone will not suffice, there would also need to be a significant majority from the 193 odd UN Members States not only to set up the said tribunal but also to remove the immunities of those serving Russian high officials. Securing such a majority will be a tall order, due to the precedence this is likely to set for the potential future treatment of their own Heads of State.
Irrespective of whether a change in state practice regarding the treatment of personal immunities of Russian high officials can be secured at the UNGA, the instigation of criminal cases against Russian high officials such as Putin accompanied by arrest warrants by either of the proposed tribunals, consistent with international law, will send a clear message to others in positions of power, authority and influence across Russia, as well as the Russian population, the international community’s determined resolve to ensure that impunity has no place re the atrocities in Ukraine and further, that there is no future for Russia among the community of nations with Putin at the helm. Such initiation of criminal cases before international tribunals were the beginning of the end for Milosevic, Milutinovic and Taylor, and is highly likely to be the same for Putin. The mutiny by the Wagner mercenaries and Putin’s apparent impotence is arguably a demonstration of this fact.
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You can find ‘Bringing Putin to Justice (1)’ by James Onalaja in the October issue of Counsel. This two-part series expands on James’ thesis ‘Resolving the Al-Bashir Conundrum’.
James Onalaja practises in domestic and international criminal law, human rights and regulatory law from 187 Chambers, Temple. He is appointed to the Lists of Counsel at the International Criminal Court and Kosovo Specialist Chambers to represent defendants and victims. He is a member of the International Criminal Court Bar Association’s Legal Advisory Committee and has recently completed a posting in The Hague assisting the ICC’s Office of Public Counsel for the Defence.
Following the International Criminal Court’s (ICC) warrant for the arrest of Vladimir Putin for alleged war crimes of unlawful transfer of Ukrainian children from occupied Ukraine to Russia, contrary to Article 8(2) of the Rome Statute (RS), Part 2 of this series addresses the ICC’s misunderstanding of historic case law and state practice leading to the arrest warrant; the approach it ought to adopt on the said arrest warrant consistent with its treaty and customary international law; and the potential impact of this on the proposed tribunal on the crime of aggression.
The ICC Appeal Chamber (ICC-AC) (paras 112-113) in agreement with its Pre Trial Chamber (ICC-PTC) in Malawi’s dispute of the obligation to execute the Al-Bashir arrest warrant (‘Al-Bashir/Malawi PTC Decision’, para 39), further relied on the historic Head of State and senior state officials’ prosecutions at international tribunals to support the finding that there is neither state practice nor opinio juris which supports the existence of Head of State immunity under customary international law vis-à-vis an international court. This is, however, based on a misunderstanding of historic case law and state practice. The Nuremberg and Tokyo Tribunals provide no support for the ICC’s assertion. At the time of those prosecutions, both Germany and Japan had surrendered to the Allies who assumed the position of occupying powers in control of both countries. As a result, any officials of the previous Nazi or Japanese regimes prosecuted had been removed from office and thus no longer enjoyed any personal immunity.
With respect to the ad-hoc tribunal case law, although Slobodan Milosevic (Prosecutor v Slobodan Milosevic, IT-02-54, TCh, Decision on Preliminary Motions, 8 November 2001) and Milan Milutinovic (Prosecutor v Sianovic et al, IT-05-87, TCh, Decision on Milutinovic Motion for Provisional Release, 22 May 2007) were both indicted and had warrants for their arrest issued while serving as Head of State of the Federal Republic of Yugoslavia and President of Serbia respectively, these cases provide very limited support for the ICC’s assertion. Quite apart from the fact that the International Criminal Tribunal for the Former Yugoslavia (ICTY) was set up by the United Nations Security Council (UNSC) acting under Chapter VII powers which could be utilised to set aside states’ personal immunity rights, by the time Milosevic was surrendered in 2001, he was no longer a serving president and had been arrested by the Yugoslav authorities. He therefore did not enjoy any personal immunities at the time of his arrest and appearance before the ICTY. Milutinovic also surrendered himself to the ICTY after the end of his term.
Neither do the cases of Laurent Gbagbo (Prosecutor v Laurent Gbagbo ICC-02/11, PTC III Warrant of Arrest, 23 November 2011) and Charles Taylor provide much support. Gbagbo was a former Head of State at the time of his arrest and surrender to the ICC and in any event, any existing immunities he enjoyed, had been waived by Ivory Coast’s declaration of its unconditional acceptance of ICC jurisdiction under Article 12(3) RS. Not only was the Taylor Decision based on an inaccurate interpretation of the Arrest Warrant Case as set out in Part 1, it was furthermore an unnecessary decision due to the fact that by the time of his surrender to the SCSL, Taylor was no longer a serving Head of State and thus did not enjoy any personal immunities which could have prevented the court from exercising its jurisdiction over him (para 59). Thus, contrary to the ICC-PTC and ICC-AC assertions in Al-Bashir, there is little evidence of state practice or opinio juris that sitting Heads of State may be arrested and tried for international crimes before international courts.
Thus, the ICC-AC in Al-Bashir was incorrect when it concluded that Article 27(2) RS simply reflects the status of customary international law that a Head of State cannot claim Head of State immunity when s/he appears before the ICC in accordance with the provisions on the exercise of its jurisdiction (paras 102-103). As the ICC is a treaty-based court (Article 12 RS), pursuant to Article 86 RS only state parties are under an obligation to cooperate with the court, including with its request pursuant to Article 89 for the arrest and surrender of suspects. However, this obligation cannot require state parties to execute Putin’s arrest warrant, while a president of a non-party state without an Article 12(3) RS declaration by Russia.
Article 27(2) 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.’ To understand the true meaning of that provision and its applicability to Putin, this has to be read in conjunction with Article 12(1) and Article 98(1) which provides that: ‘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.’
Read together, the only logical conclusion that could be reached is that Article 27(2) simply reflects the fact that by becoming party to the statute or by making an Article 12(3) declaration, a state waives its customary international law right to the immunities of its seating officials including its Head of State. This is wholly consistent with Article 98, which confirms that the customary international law principle of personal immunities pertaining to high officials including the Head of State of non-State parties remain applicable before the ICC and with respect to a request for surrender of such an individual to the ICC. Where the ICC requests from a state party the arrest and surrender of a seating Head of State of a non-state party such as Russia, the court may only proceed with such a request if the cooperation of the non-State party has been obtained, by way of a waiver of its customary international law immunity right, as the continuation of such immunities would prevent the arrest at the national level.
The status of the arrest warrant for Putin can be further distinguished from that for Al-Bashir as the Ukraine situation was not referred to the ICC by the UNSC acting under Chapter VII powers which could have arguably imposed a clear obligation on all states to cooperate with the issued warrant and arrest Putin in disregard of his personal immunity. Indeed, no such resolution is ever likely from the UNSC while Russia holds a veto. It thus follows that as long as Putin remains President of Russia, the ICC may not oblige state parties such as South Africa to violate their obligations under customary international law to arrest and surrender Putin (if he were to set foot on their territory) nor proceed with Putin’s actual prosecution, without first securing the consent of the Russian federation for a waiver of his personal immunity.
However, the ICC’s issuance of an arrest warrant for Putin alone would not amount to a violation of his personal immunity so long as the court does not require state parties to act on it inconsistently with Article 98 RS. The issuance of a warrant under Article 58 RS by the ICC-PTC effectively amounts to the court’s initiation of proceedings against Putin. If the warrant was issued and served solely on Putin and the Russian Federation this arguably will only amount to Putin and the Russian Federation being put on notice of the court’s intention to instigate proceedings against Putin and provide the Russian Federation the opportunity to waive its right to the personal immunity of its Head of State. In those circumstances, it would not intend to orchestrate Putin’s arrest in violation of the rights of the Russian Federation.
So, what impact does this have on the proposals for an ad-hoc special or hybrid tribunal to try Putin and other Russian high officials for the crime of aggression? There is on ongoing debate about whether this ought to be an ad-hoc International Special Tribunal (IST) as preferred by various NGOs and academics, or a hybrid tribunal based within the Ukrainian criminal jurisdiction, as preferred by the UK, US, and German governments.
Critics of these Western powers have voiced concern that a hybrid tribunal established under Ukrainian national law and placed within its domestic jurisdiction will not be able to set aside the personal immunities of the highest serving Russian officials of President Putin, Prime Minister Mikhail Mishustin, and Foreign Secretary Sergey Lavrov, whom out of those that may be charged, may lay claims to existing personal immunities. This would be unlike the IST which (considering the current impotence of the UNSC on this issue) may be established by a UN General Assembly (UNGA) resolution, thus (it is argued) providing it with the strongest status of an international tribunal to prevent immunities of these sitting Russian high officials playing any role (‘Immunities and a Special Tribunal for the Crime of Aggression against Ukraine’, Open Society Justice Institute, 1 February 2023, para 16; Kevin Jon Heller, ‘The Jordan Appeal Supports a Hybrid Tribunal Denying Personal Immunity’, Opinio Juris, 6 February 2023). These personal immunities will be highly relevant if Ukraine’s Prosecutor General Andriy Kostin’s wish of trying these high Russian officials in absentia becomes a reality.
Firstly, as the ICC-AC in Al-Bashir observed, ‘an international court or an international tribunal…is an adjudicatory body that exercises jurisdiction at the behest of two or more states. Its jurisdiction may be conferred in one of a variety of ways: such as by treaty; by instrument of promulgation; referral or adhesion made by an international body or functionary empowered to do so; or indeed by adhesion or referral through an arbitrary clause in a treaty. A court that operated physically or in principle within a domestic realm exercises international jurisdiction where such jurisdiction result in any manner described above’ (para 56).
A hybrid tribunal within Ukraine’s judicial system could also be internationalised by a UNGA resolution (agreed under the Uniting for Peace provisions following the UNSC’s failure to exercise its primary responsibility for maintaining international peace and security) requesting the UN Secretary-General to create a hybrid tribunal with Ukraine to try the crime of aggression, followed by an agreement between Ukraine and the UN to create the said tribunal, arguably as achieved in Cambodia (Heller: 2023). The resulting tribunal would clearly satisfy the test set out above for an international court or tribunal. However, as demonstrated in this two-part series, the international status of the tribunal alone will not suffice, there would also need to be a significant majority from the 193 odd UN Members States not only to set up the said tribunal but also to remove the immunities of those serving Russian high officials. Securing such a majority will be a tall order, due to the precedence this is likely to set for the potential future treatment of their own Heads of State.
Irrespective of whether a change in state practice regarding the treatment of personal immunities of Russian high officials can be secured at the UNGA, the instigation of criminal cases against Russian high officials such as Putin accompanied by arrest warrants by either of the proposed tribunals, consistent with international law, will send a clear message to others in positions of power, authority and influence across Russia, as well as the Russian population, the international community’s determined resolve to ensure that impunity has no place re the atrocities in Ukraine and further, that there is no future for Russia among the community of nations with Putin at the helm. Such initiation of criminal cases before international tribunals were the beginning of the end for Milosevic, Milutinovic and Taylor, and is highly likely to be the same for Putin. The mutiny by the Wagner mercenaries and Putin’s apparent impotence is arguably a demonstration of this fact.
*
You can find ‘Bringing Putin to Justice (1)’ by James Onalaja in the October issue of Counsel. This two-part series expands on James’ thesis ‘Resolving the Al-Bashir Conundrum’.
In the second of a two-part series considering whether the International Criminal Court’s approach is unlawful, James Onalaja explores Head of State immunity and suggests an alternative approach to Putin’s arrest warrant
The beginning of the legal year offers the opportunity for a renewed commitment to justice and the rule of law both at home and abroad
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James Onalaja concludes his two-part opinion series
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