A proposed amendment to the Rome Statute could herald a setback in international law.

The 12th session of the Assembly of State Parties of the International Criminal Court (ICC) is taking place at The Hague in the Netherlands. It began on November 20, 2013, and is scheduled to come to a close on Thursday. The caucus, convened periodically to discuss the “state of the union” of the ICC, has been deliberating on a number of proposed amendments to both the Rome Statute and its concomitant Rules of Procedure and Evidence.

Although this session allows for state parties to discuss proposed amendments to the Statute, only amendments to the Rules of Procedure and Evidence can be adopted. Thus far, some key amendment proposals to the Rules have already been deliberated on and passed, including one allowing accused persons to be exempt under certain circumstances from being present at trial.

General Debate

However, unlike previous conclaves, the stampede to get to and settle around the excogitators’ deliberative campfire this time around was audibly provoked by overcloud political undertones, which for months forewarned members of the fact that this was to be no ordinary plenary.

Indeed, as the Assembly winds down, it has not been. Although amendments to the Rome Statute itself could not be passed at the Assembly, certain parties pushed for a special segment on the General Debate of the ICC to discuss a proposed change to Article 27 of the Rome Statute. The change would herald perhaps the most radical proposal yet: the modification of this most central of instruments in the corpus of international criminal law.

So potent and divisive is the issue that, to prevent it from altogether poisoning the tone of the gathering, the parties decided to defer its in-depth consideration to a special Assembly of State Parties in February 2014. To be fair, it may not have been passed at the Assembly regardless, for reason that Rome Statute amendments were not on the main agenda and, in any event, it was submitted late onto the roll — less than the required 90-day notice period. Nonetheless, it is very much alive as state parties in favor of its passage are resolute in their quest for the change. Its import on this Assembly, the ICC in general, and relations among state parties as a whole is monumental.

Personal and Functional Immunity

Essentially, the Article 27 amendment proposal, mooted by African state parties at the behest of Kenya, is for sitting heads of state to be exempt from prosecution by the Court during their tenure. That is to say, the amendment would extend elements of both personal and functional immunity (for heads of state or officials of similar status) among state parties, beyond the purview of domestic and other foreign criminal and civil suits, to that of international crimes.

Personal and functional immunity are well-established principles of both treaty and customary international law. They are accepted as important components of the corpus — ingredients that spur goodwill in inter-state relations, and are therefore considered key manifestations of the recognition of state sovereignty. They lend credence to the international law maxim of par in parem non habet imperium, which translates as “an equal has no power or authority over an equal.”

Both personal and functional immunity drape certain state officials with immunity from domestic and foreign prosecution while in office. The difference between the two forms is that personal immunity goes more to the subject of the status of the person clothed with immunity, while functional immunity refers to the question of the content of the official’s actions. 

Personal immunity protects the office bearer from prosecution for acts performed in both a private and official capacity, while functional immunity only protects the person from prosecution for acts committed while in office, in an official capacity, and permitted thereby. Thus, personal immunity protects the bearer from prosecution for acts done before and during the state official’s tenure, while functional immunity covers acts done during a state official’s tenure, and only those acts permitted under the portfolio of their official capacity.

Although both immunities generally apply to high-level state officials at once, personal immunity ceases upon the end of the official’s term of office. Functional immunity, however, transcends a person’s tenure, which, as highlighted, is not to say that ultra vires acts (those committed outside of one’s official duties) cannot be punished. Rather, it is to assert the contrary.

Seeming Contradiction

The literature on immunities, especially personal immunity, is not as convincing as would be hoped. It is beset by a seeming contradiction.

On the one hand, personal immunity is considered by some in the corpus to be inviolable while a state official is in office. In the Arrest Warrant case before the International Court of Justice pitting Belgium against the Democratic Republic of Congo, it was held that certain state officials like heads of state had “full immunity from criminal jurisdiction and inviolability.”

Yet on the other hand, by precept of jus cogens — customary international law’s peremptory norms to which no derogation is permitted — it is the incontrovertible position that no law or immunity can stand in the way of the prosecution of international crimes.

To some, this contradiction is nonexistent because personal and functional immunity weigh-in on the question of legal procedure — to wit, when to prosecute, whereas jus cogens is wholly substantive — ensconcing the notion of what falls within the ambit of what ought to be prosecuted.

All in all, this apparent conundrum appears to be afflictive of circumstances where a state seeks to exercise universal jurisdiction over state officials of other countries in relation to the prosecution of international crimes. However, it does not appear to affect situations where international tribunals — such as the Nuremberg Tribunal, the International Criminal Tribunal for the former Yugoslavia, the International Tribunal for Rwanda, The Special Court for Sierra Leone, and the ICC — are seized of a matter.

Indeed, in the trials of Slobodan Milosevic and Charles Taylor, immunity defenses were overruled. This occurred as international crimes are the worst violations against humanity, and to allow immunity would be to assert impunity. Indeed, the establishing instruments of these international courts, including Article 4 of the Geneva Convention, expressly negate immunity as a safe harbor.

Even the Arrest Warrant case in relation to states that, of their own accord, decide to exercise universal jurisdiction over officials of other states, appears to suggest in obiter (a legal side note) that these immunities were not to be construed as exempting prosecution for international crimes after the end of the office bearer’s term.

The dry bones of the Rome Statute seemingly settled this point in express asservation — at least with respect to member states. By so doing, it can be deemed to have laid down a marker for the clarification of international law on the matter: that no immunity can stand in the way of the prosecution of the most egregious crimes known to mankind.

Amendment to the Statute

Thus, the upshot of the proposed amendment to the Statute — that persons serving as heads of state would be immune from prosecution during their tenure, for international crimes they are deemed to have committed both before serving in office and during their term — would send international law tailspinning into an uncertain and painful past.

Accordingly, if eventually passed, the proposed amendment would usher forth a most ominous reset to the hard-fought gains made in international law. Granted, although the proposed amendment would not affect the UN Security Council’s Chapter VII mandate (under the UN Charter) to establish tribunals to try anyone, including sitting heads of state suspected of committing international crimes, it could nonetheless render the ICC and the rationale for the body as moribund or a mere farce.

Also, given the fact that it would have been passed by such a large number of states, it could create enough of a grey area in international law so as to fuel the perception that the new position has gained the status of customary international law with regards to multilateral relations between states.

Admittedly, it would be difficult for the proposed amendment to be adopted. To be affirmed it would require two-thirds majority of state parties to vote in favor, seven-eights of state parties to ratify it after it has been passed, and would come into effect a year after ratification by each of the quorate state parties.

However, the fact that there appears to be a large body of state parties amenable to even considering the proposal of amendment is very troubling.

My thesis on why this proposed amendment is under consideration at all, is as follows. State parties in favor of the amendment have argued that it would prevent any threats to international peace and security where a nation is left with a power vacuum due to its head of state having to attend trial at The Hague. But clearly, the proposed amendment is not as much in the interests of ICC member states, as it is in the self-serving endowment of sitting governments — and by extension, sitting heads of state.

Seeing as the proposed amendments germinated out of the Kenyan cases before the Court, it appears some sitting heads of state have been spooked by the perceived “low bar” of determination by the Court of what acts fall within the ambit of international crimes. This is to say, the Kenyan cases were triggered by events that led to the deaths of about 1,500 people. Many sitting heads of state are perhaps of the view that in their countries, a riot or series of riots, let alone a civil war on the scale of Syria, could cause even more deaths of civilians than this. Therefore, they fear this could be on the hook in such comparative eventuality.

Undesired Consequences

But what consequences would there be should the proposed amendment succeed? Notably, there are two central ones under a fact pattern where a head of state is in the crosshairs of the Court and the UN Security Council’s scrutiny for acts that are perceived to be international crimes. The first is quite straight forward, and the second, rather counterintuitive.

In the first instance, a head of state of a party to the Statute, who is due to be prosecuted for international crimes at the Court after his or her term, would move heaven and earth to ensure there is no “after-his-or-her-term” scenario. This means that the head of state would try to hold onto power for as long as possible to avoid prosecution. Constitutional term limits would be amended and democracy would be sacrificed at the altar of a head of state’s morbid thirst for self-preservation.

In the second instance, a head of state who is being hounded by the Security Council, and whose country is not a member state of the Rome Statute, would most likely opt to ratify the Statute so that he or she is accorded protection by the exemption. They would see the ICC immunity as a better prospect than a scenario where the state is subjected to sanctions by UN member states, as a result of its leader's refusal to appear before an international tribunal for prosecution.

Take the example of President Omar al-Bashir of Sudan. Should the proposed amendment pass, who is to say he would not be quick off the mark to have Sudan ratify the Rome Statute.

The views expressed in this article are the author's own and do not necessarily reflect Fair Observer’s editorial policy.

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