Earlier this week, the Trial Chamber at International Criminal Tribunal for the Former Yugoslavia (ICTY) hearing the case against Radovan Karadzic issued a decision in which it stated that “According to customary international law, there are some acts for which immunity from prosecution cannot be invoked before international tribunals [para. 17 of the decision]“. The statement was made in the context of a ruling granting, in part, a request by Karadzic for the disclosure of certain documents by the Prosecutor. Karadzic alleged that, at a meeting in Belgrade in July 1996, he reached an “immunity agreement” with US diplomat Richard Holbrooke in which he was promised that he would not face prosecution at the Tribunal if he withdrew from public life. He sought any documents in the possession of the Prosecutor concerning the alleged agreement and the meeting at which it was reached. He argued that the Holbrooke offer was attributable to the Tribunal because it was made in consultation with other members of the UN Security Council or believed to be so. The Trial Chamber ruled that the documents sought were not relevant to the preparation of Karadzic’s defence other than being of potential relevance to in the determination of any eventual sentence. It considered “it well establihed that any immunity agreement in respect of an accused indicted for genocide, war crimes and/or crimes against humanity before an international tribunal would be invalid under international law [para. 25].”
Although Karadzic and the Trial Chamber discussed the alleged agreement in terms of immunity, the suggestion being that it related somehow to immunities conferred by international law, it may have been more accurate to refer to it as an amnesty agreement. Afterall, the suggestion in the alleged agreement was not that Karadzic was entitled to immunities which international law ordinarily accords but rather that the tribunal would refrain from prosecuting him.
The Trial Chamber’s view that international law immunities do not apply to prosecution for international crimes before international criminal tribunals is erroneous. In support of its view, the Trial Chamber referred the provisions of the Statutes of various international criminal tribunals providing that official capacity of the defendant is not a defence before these tribunals (eg Art. 7(2) of the Statute of the ICTY). Commenting on this Karadzic decision, Professor Bill Schabas argues over at his blog (PhD Studies in Human Rights) that those provisions relate not to immunity but rather to the defence of official capacity, which is a substantive defence. The Trial Chamber also referred to Art. 27 of the ICC Statute, which goes beyond this substantive official capacity defence end explicitly denies procedural immunities, and the ICJ’s decision in the Arrest Warrant case (DR Congo v. Belgium) where the court stated that international law immunities do not apply before “certain international tribunals.” However, as I argued in an article in the American Journal of International Law some years ago elsewhere, there is no general rule that international law immunities do not apply before international tribunals. These immunities are rights belonging to the State (and not the official). Other States cannot deprive a State of its rights without its direct or indirect consent. To the extent that the statement that international law immunities do not apply to prosecutions before international tribunals relates to functional immunities (immunity ratione materiae) then all it means is that those immunities do not apply to prosecutions for international crimes. Those immunities would not apply even in a national court. To the extent that the statement relates to personal immunities (immunity ratione personae) which benefit senior and serving State officials, the statement must be read subject to the following condition. (i) The instruments creating or conferring jurisdiction on the tribunal must expressly or implicitly remove the immunity of the official. (ii) The State concerned must be bound by that instrument removing the immunity.
So, to the extent that a Tribunal is created by the UN Security Council (SC) and to the extent that the Statute has removed international law immunities, then those immunities do not apply in the ICTY. However, the question is has the Security Council removed any relevant immunities? Karadzic has no relevant immunities under customary international law, since at most he was an agent of Serbia and would only possess functional immunities which do not apply in the case of the crimes he is charged with. So, there is no need to consider, in this case, whether the SC has removed immunities. However, the question would have been important with respect to Milosevic, who at the time of his indictment was a serving head of State with personal immunities. Does Art. 7(2) actually remove that immunity or does it relate to the arguably different question of the official capacity defence?
The question of the immunity of a serving head of State also applies with respect to the indictment of Sudanese President Bashir by the ICC. Elsewhere, I have suggested 3 possible ways of arguing that Bashir is not immune from prosecution. However, these arguments are not open and shut and others have different views. One key area in which the question would be tested is whether or not States can execute an arrest warrant against President Bashir were the ICC to issue one. The ICC Prosecutor told the SC earlier this month that if any indicted person were to travel to the territory of a UN member state he should be arrested. He stated that there are no immunities for persons indicted by the ICC. But Sarah Nouwen over at the Social Science Research Council blogs argued this week that States would violate international law were they to execute an arrest warrant, unless the SC were to adopt a resolution explicitly removing immunity or Sudan were to waive Bashir’s immunity. If my arguments are right then there would be no such violation though questions may still arise as to basis on which non-parties to the ICC Statute are entitled to execute the arrest warrant.