Part 3 General Principles of Criminal Law / Principes Généraux du Droit Pénal, Art.27 Irrelevance of official capacity / Défaut de pertinence de la qualité officielle
William A. Schabas
- Heads of state and other senior officials — Immunity from jurisdiction, states — International Criminal Court (ICC) — International courts and tribunals, jurisdiction — Individual criminal responsibility
(p. 446) Article 27. Irrelevance of official capacity / Défaut de pertinence de la qualité officielle
1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.
1. Le présent Statut s’applique à tous de manière égale, sans aucune distinction fondée sur la qualité officielle. En particulier, la qualité officielle de chef d’État ou de gouvernement, de membre d’un gouvernement ou d’un parlement, de représentant élu ou d’agent d’un État, n’exonère en aucun cas de la responsabilité pénale au regard du présent Statut, pas plus qu’elle ne constitue en tant que telle un motif de réduction de la peine.
The two paragraphs in article 27 are often confounded, but they fulfil different functions. Paragraph 1 is derived from texts in the Nuremberg Charter, the Genocide Convention, and the statutes of the ad hoc tribunals, and denies a defence of official capacity. Paragraph 2 amounts to a renunciation, by States Parties to the Rome Statute, of the immunity of their own Head of State to which they are entitled by virtue of customary international law. In contrast with paragraph 1, it is without precedent in international criminal law instruments.
Drafting of the provision
The draft statute prepared by the International Law Commission had no provision comparable to article 27 of the Rome Statute, although since 1954 drafts of the Code of Crimes Against the Peace and Security of Mankind had comprised provisions denying the defence of official capacity.1 Also, the early draft statute prepared by Special Rapporteur Doudou Thiam for the International Law Commission, in 1992, contained the following paragraph in its provision dealing with complaints before the court: ‘It shall be immaterial whether the person against whom a complaint is directed acted as a private individual or in an official capacity.’2 What was called ‘irrelevance of official position’ was raised in the Ad Hoc Committee’s discussion of general principles of criminal law.3
1. This Statute shall be applied to all persons without any discrimination whatsoever: official capacity, either as Head of State or Government, or as a member of a Government or parliament, or as an elected representative, or as a government official, shall in no case exempt a person from his criminal responsibility under this Statute, nor shall it [per se] constitute a ground for reduction of the sentence.
2. Any immunities or special procedural rules attached to the official capacity of a person, whether under national or international law, may not be relied upon to prevent the Court, from exercising its jurisdiction in relation to that person.8
A footnote to the text said that further discussion of paragraph 2 was required in connection with procedure as well as international judicial cooperation. The text was adopted by the Preparatory Committee in its final draft.9 Nor was any significant alteration made to the text at the Rome Conference itself. Paragraph 1 was adopted by the Committee of the Whole without any debate,10 and paragraph 2 was adopted shortly afterwards.11 Paragraph 1 does not appear in the reports of the Working Group on General Principles, but was incorporated in the report of the Committee of the Whole.
Analysis and interpretation
Defence of official capacity (art. 27(1))
It was submitted that international law is concerned with the action of sovereign States, and provides no punishment for individuals; and further, that where the act in question is an act of state, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the State. In the opinion of the Tribunal, both these submissions must be rejected … Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced … The principle of international law, which under certain circumstances, protects the representatives of a state, cannot be applied to acts which are condemned as criminal by international law. The authors of these facts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings … On the other hand the very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual State. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorising action moves outside its competence under international law.13
A concordant provision appears in the 1948 Genocide Convention.14 Similarly, the statutes of the two ad hoc tribunals established by the United Nations Security Council in 1993 and 1994 contain texts along the same lines.15 A Trial Chamber of the International Criminal Tribunal for the former Yugoslavia has described this as a rule of customary international law.16
Although paragraph 1 of article 27 formulates the same general concept, its wording is original and intriguing. It begins by affirming that the Rome Statute applies ‘equally to all persons’, language that recalls the opening sentence of article 14 of the International Covenant on Civil and Political Rights, which is a fair trial provision: ‘All persons shall be equal before the courts and tribunals.’17
Paragraph 1 denies a plea of ‘official capacity’ to several categories of officials: Heads of State or government, members of a government or parliament, elected representatives, and government officials. The detailed list invites debate about exceptions and excluded categories, although in reality this is of no significance because what it does, in effect, is deny the plea to anyone who invokes it. The principle also applies to all ‘officials’, including those who hold de facto authority.18 The historic origins of the provision perhaps (p. 449) explains why it has its own article, and is not subsumed within the general provision on defences (art. 31). But article 31 concerns admissible defences, whereas article 27 does not define a defence, rather, it excludes one. The norm is sometimes described as ‘immunity’, although in this context it refers to immunities granted under national law rather than the immunity that exists under international law, which are contemplated by article 27(2).
The final words of article 27(1) address the question of official capacity as a mitigating factor in the determination of the appropriate penalty. This is consistent with most of the earlier instruments, with the exception of an ambiguous provision in the Charter of the Tokyo Tribunal.19 The first conviction at the International Criminal Tribunal for Rwanda involved the man who had been head of the interim government in Rwanda during much of the time while genocide was taking place. Jean Kambanda pleaded guilty, and of course therefore abandoned any argument based on official capacity. The Tribunal treated his official capacity as an aggravating factor.20 Indeed, despite the concluding words of article 27(1), in practice official capacity is far more likely to be an aggravating than a mitigating factor.
Article 27(1) was invoked by the Appeals Chamber in its seminal ruling on the concept of ‘gravity’, as this term is used in article 17(1)(d) of the Statute. According to the Appeals Chamber, article 27(1) provides support for the view that the Statute applies not only to ‘senior leaders’.21 The reference suggests a misunderstanding of article 27(1), whose purpose is to ensure that senior leaders do not evade responsibility by arguing that they were acting not as individuals but on behalf of the State.
Head of State immunity (art. 27(2))
The second paragraph of article 27 concerns the immunities that exist by virtue of customary international law, and that protect Heads of States, and that extend to other senior officials such as foreign ministers. The definitive statement on immunities is found in the February 2002 ruling of the International Court of Justice. In that case, it was argued that article 27(2) of the Rome Statute as well as the relevant provisions of the statutes of the ad hoc tribunals support the existence of a rule of customary law applicable before national courts, but the Court rejected the suggestion.22 At the same time, the Court confirmed that both a former as well as an incumbent Head of State may be subject to ‘certain international criminal courts, where they have jurisdiction’, giving as examples of such tribunals the International Criminal Court, and the ad hoc tribunals for the former Yugoslavia and Rwanda.23
The language of the International Court of Justice is quite broad, and by its association of the legal regime under the Rome Statute with that of the ad hoc tribunals it implies (p. 450) that the same norms apply. But the statutes of the ad hoc tribunals have no provision equivalent to that of article 27(2). To the extent that there is no immunity for a Head of State before the ad hoc tribunals, this can only be by implication. Justification for such an implication is found in the fact of the establishment of the tribunals by the United Nations Security Council. Sovereign immunity applies to relations between States, and is not relevant when a United Nations-created tribunal is involved.
Confusion on this issue is only accentuated by the ruling of the Special Court for Sierra Leone applying a provision identical to that in the other ad hoc tribunal statutes.24 After reviewing the International Court of Justice opinion concerning immunity, the Appeals Chamber of the Special Court responded to an immunity plea from Charles Taylor, who had been president of Liberia at the time the alleged crimes were committed, by answering that there was no peremptory norm contrary to article 6(2) of the Statute of the Court.25 But article 6(2) of the Statute of the Special Court for Sierra Leone concerns ‘official capacity’, not immunity, which was Taylor’s plea. It may be that Taylor has no claim to sovereign immunity before the Special Court, but this is not the consequence of article 6(2) of its Statute.
As for the International Criminal Court, there is no doubt that article 27(2) removes any plea of immunity from relevant officials of States Parties to the Rome Statute. The more difficult issue is the effect of article 27(2) with respect to Heads of State of nonparty States. Because this immunity exists by virtue of customary international law rather than principles enshrined in some national legislation (a matter dealt with in article 27(1)), by ratifying or acceding to the Rome Statute States in effect renounce their right to immunity. Of course, they can abandon the immunity that they themselves possess under international law, but they cannot by treaty deprive it from third States, that have not renounced such immunity. For this reason, article 27(2) cannot apply to Heads of State of non-party States, who retain their immunity under customary international law. Nor does it affect those who benefit from immunity as a result of the Charter of the United Nations, which is hierarchically superior to the Rome Statute.
Such an interpretation of article 27(2) is confirmed in the negotiations of the Relationship Agreement between the International Criminal Court and the United Nations. The Government of Belgium, which for many years adopted a rather extreme position on immunities, reflected in the dissenting opinion of ad hoc judge Van den Wyngaert in the Arrest Warrant case,26 proposed the following provision: ‘Paragraph 1 of this article shall be without prejudice to the relevant norms of international law, particularly article 6 of the Convention on the Prevention and Punishment of the Crime of Genocide and article 27 of the Statute, in respect of the crimes that come under the jurisdiction of the Court.’ When the text of the Relationship Agreement was being prepared, Belgium was embroiled in litigation before the International Court of Justice, and obviously understood that recognition of immunity for United Nations officials in that text would seem incompatible with its claim that there was no immunity at all for the core crimes of international law. Belgium’s provision was rejected during the drafting, and the final version of the Agreement confirms the immunities to which officials of the United Nations are entitled. According to article 19 of the Relationship Agreement, the United (p. 451) Nations agrees to waive these immunities. But if article 27(2) removed such immunity, there would be no need for any such provision, and this was precisely the point that Belgium unsuccessfully tried to confirm.
Pre-Trial Chamber I, in Bashir, held that the position of the accused person as head of State of a non-party State ‘has no effect on the Court’s jurisdiction over the present case’.27 It said this conclusion was based upon four considerations.28 The first was a rather gratuitous and unhelpful reference in the preamble to the core goals of the Statute, which are ‘to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole, which “must not go unpunished” ’.29 The second consists of an equally gratuitous and unhelpful recital of the terms of article 27.30 The third is more compelling: a reference to article 21 of the Statute, and the observation that unless there is a lacuna in the Statute the Court is not to apply other sources of law.31 The message is that even if general public international law provides for Head of State immunity, it is not formally contemplated by article 27 and therefore cannot be invoked in proceedings before the Court. Finally, the Pre-Trial Chamber said that by referring the Darfur situation to the Court in accordance with article 13(b) of the Statute, the Security Council ‘accepted that the investigation into the said situation, as well as any prosecution arising therefrom, will take place in accordance with the statutory framework provided for in the Statute, the Elements of Crimes and the Rules as a whole’.32
The reasoning of the Pre-Trial Chamber rests upon an interpretation of article 27(2) by which it applies to Heads of State even of non-party States because the provision does not say the contrary. But a construction by which article 27(2) only applies to States Parties is certainly equally plausible, if not more so. To start with, the Chamber might have considered article 34 of the Vienna Convention on the Law of Treaties: ‘A treaty does not create either obligations or rights for a third State without its consent.’33 Given the fourth argument proposed by the Chamber, is it not logical to presume that the Security Council, in referring the situation in Darfur to the Court, assumed that not only article 34 of the Vienna Convention remained applicable but also that the Court would apply article 27 within the framework of customary international law concerning immunities of Heads of State?
Another argument for the application of article 27(2) to Heads of State of non-party States, but one that the Pre-Trial Chamber did not take, views Security Council referral as an implied removal of immunity. Reliance is placed upon decisions of the ad hoc tribunals in Taylor and Milosevic, to the extent that they bolster the theory of implied withdrawal of immunity. The reasoning in both decisions of the ad hoc tribunals is quite superficial on this point, weakening their authority. Both the Special Court for Sierra Leone and the International Criminal Tribunal for the former Yugoslavia appear to have considered that the ‘official capacity’ provision in their statutes also addressed the matter (p. 452) of immunity under international law, but this is not the case. The argument of implied removal of immunity also falters on the fact that as a general rule, the Security Council cannot alter the provisions of the Rome Statute when it makes a referral. Otherwise, Security Council referral would create a different legal regime than that resulting from State Party referral or proprio motu triggering by the Prosecutor. The Security Council cannot add new crimes, or alter the temporal jurisdiction of the Court, for example. Accordingly, its referral should not alter the general rule on immunities set out in paragraph 2 of article 27.
Immunities are also considered in article 98 of the Rome Statute. Article 98 concerns obligations that States Parties assume under the Statute with respect to surrender of accused persons and other forms of cooperation. Paragraph 1 grants an exemption from these undertakings to the extent they may conflict with immunities granted under ‘international law with respect to the State or diplomatic immunity’. Paragraph 2 grants an exemption from surrender obligations where these conflict with ‘international agreements’, of which so-called ‘status of forces agreements’ governing foreign military personnel are the classic example. Article 98 should not be confused with article 27, whose provisions concern the renunciation of immunity by States Parties. Professor Bassiouni, who chaired the Drafting Committee at the Rome Conference, has written that article 98 and article 27 should have been joined in a single provision, so as to avoid problems of interpretation.34 Nevertheless, there is no incompatibility or inconsistency between the two provisions, given that article 27 governs the exercise of jurisdiction over an accused before the Court whereas article 98 applies solely to obligations of cooperation.
In their implementing legislation, some States have provided that in the case of a national of a State Party to the Rome Statute, immunity may not be raised as a bar to surrender.35 The limited application to nationals of States Parties indicates an understanding that article 27(2) does not apply to nationals of non-party States. Other States, however, have simply prohibited the application of immunities ‘under common law or by statute’.36
- Dapo Akande, ‘International Law Immunities and the International Criminal Court’, (2004) 98 AJIL 419;
- Rosanne van Alebeek, ‘From Rome to The Hague: Recent Developments on Immunity Issues in the ICC Statute’, (2000) 13 LJIL 485;
- Kai Ambos, ‘General Principles of Criminal Law in the Rome Statute’, (1999) 10 CLF 1;
- Eric David, ‘Official Capacity and Immunity of an Accused before the International Criminal Court’, in Doria, Legal Regime, pp. 743–756;
- Paola Gaeta, ‘Does President Al Bashir Enjoy Immunity from Arrest?’, (2009) 7 JICJ 315;
- H. Jescheck, ‘The General Principles of International Criminal Law Set out in Nuremberg, as Mirrored in the ICC Statute’, (2004) 2 JICJ 38;
- Per Saland, ‘International Criminal Law Principles’, in Lee, The Making of the Rome Statute, pp. 189–216;
- Massimo Scaliotti, ‘Defences Before the International Criminal Court: Substantive Grounds for Excluding Criminal Responsibility — Part 1’, (2001) 1 ICLR 111;
- Massimo Scaliotti, ‘Defences Before the International Criminal Court: Substantive Grounds for Excluding Criminal Responsibility — Part 2’, (2002) 2 ICLR 1;
- William Schabas, (p. 453) ‘General Principles of Criminal Law in the International Criminal Court Statute (Part III),’ (1998) 6 EJCCLCJ 400;
- Otto Triffterer, ‘ “Irrelevance of Official Capacity” — Article 27 Rome Statute Undermined by Obligations under International Law or by Agreement (Article 98)?’, in I. Buffard, J. Crawford, A. Pellet and S. Wittich, eds., International Law between Universalism and Fragmentation, Festschrift in Honour of Gerhard Hafner, Leiden: Brill, 2008, pp. 571–602;
- Edward M. Wise, ‘General Rules of Criminal Law’, (1997) 13 Nouvelles études pénales 267,
- (1997) 29 Denver J Int’l L & Policy 313.
12 Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT), (1951) 82 UNTS 279, annex, art. 7. See also: International Military Tribunal for the Far East, TIAS No. 1589, annex, art. 6; Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, UN Doc. A/1316, Principle III.
15 Statute of the International Criminal Tribunal for the former Yugoslavia, UN Doc. S/RES/827 (1993), annex, art. 7(2); Statute of the International Criminal Tribunal for Rwanda, UN Doc. S/RES/955 (1994), annex, art. 6(2).
19 International Military Tribunal for the Far East, TIAS No. 1589, annex, art. 6 (‘Neither the official position, at any time, of an accused, nor the fact that an accused acted pursuant to order of his government or of a superior shall, of itself, be sufficient to free such accused from responsibility for any crime with which he is charged, but such circumstances may be considered in mitigation of punishment if the Tribunal determines that justice so requires.’).
21 Situation in the Democratic Republic of the Congo (ICC-01/04), Judgment on the Prosecutor’s Appeal Against the Decision of Pre-Trial Chamber I Entitled ‘Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58’, 13 July 2006, para. 78; See also Situation in the Democratic Republic of the Congo (ICC-01/04), Separate and partly dissenting opinion of Judge Georghios M. Pikis, 13 July 2006, para. 35.
34 M. Cherif Bassiouni, ‘International Criminal Justice in Historical Perspective’, in M. Cherif Bassiouni, The Legislative History of the International Criminal Court: Introduction, Analysis and Integrated Text, Vol. I, Ardsley, NY: Transnational, 2005, at p. 84.