(i) The Nuremberg Phase

In the judgement of October 1946 the Nuremberg Tribunal made a statement that has come to be regarded as the classic catch- phrase of international criminal law that, "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."[xx] While this statement is no doubt important, international criminal law has also not been able to create a clear distinction between the criminal responsibility of the ‘men' who commit international crimes, and responsibility of states for committing international crimes. When a government adopts a criminal policy of terrorizing and exterminating sections of the population, criminal responsibility of the individual and that of the State becomes blurred and inextricably intertwined. The very horror of international crimes and the only justification there is for excluding international law immunities and special privileges from Heads of States and states officials  is that the perpetrator perverted legitimate instruments of state from their purpose of maintaining law and order and turned them into instruments of creating terror and committing mass crimes. These individuals used state machinery to accomplish heinous criminal purposes and yet want to invoke their official position to escape the consequences of their wicked deeds. Unfortunately this is the history of international criminal law as we will discover in this comment. The Nuremberg Tribunal American Chief Prosecutor Justice Robert Jackson[xxi]aptly summarised the legal reasoning behind the exclusion provisions in the Nuremberg Charter when he said,

"The Charter recognizes that one who has committed criminal acts may not take refuge in superior orders nor in the doctrine that his crimes were acts of states. These twin principles working together have heretofore resulted in immunity for practically everyone concerned in the really great crimes against peace and mankind. Those in lower ranks were protected against liability by the orders of their superiors. The superiors were protected because their orders were called acts of state. Under the Charter, no defence based on either of these doctrines can be entertained".

The tribunal agreed.  "The authors of these acts" the tribunal said "cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings".

Adolf Hitler and the Reich government committed apocalyptic crimes that were so evil in form and so shocking, that the whole world was shaken into a realization that a new genre of evil had attacked the human race even threatening it with extinction. He was able to commit such monumental crimes by seizing the Germany Government which he then perverted into an instrument for commission of unspeakable crimes.  It is beyond belief that one human being could be so evil as to ascribe to himself the authority that Hitler did, even to the extent of denying his fellow human beings the bare right to exist. Hitler and the Nazi government created the Holocaust that decimated some 6 million Jews, set up concentration and labour camps where opponents were starved to death and the gas chambers where women, children and the weak members of the society were suffocated before being incinerated. A Prosecutor in Nuremberg Trials Benjamin Ferencz[xxii] described the horrifying Nazi operation as follows:-

"Hitler began the German march of conquest over Europe. Behind the Blitzkrieg of the German tanks came the Einsatzgruppen to murder without pity or remorse every Jewish man, woman or child, every gypsy or perceived adversary they could catch. Prisoners of war were executed or starved to death, millions of civilians were forced into slave labour, while those unable to work were simply annihilated in gas chambers and concentration camps. Japanese troops committed similar crimes in areas they occupied. Repeated Allied warnings that those responsible for atrocities would be held to account went unheeded. The British proposed that, when the war was won, prominent Nazis be taken out and simply executed. It could have come as a relief but not as a surprise when defeated German and Japanese leaders found themselves in the dock to answer for their deeds in a court of law".

The 1945 Charter of the International Military Tribunal for the Prosecution and Punishment of Major War Criminals was really the first international legislative instrument that addressed immunities from prosecution for heads of States in respect of the conducts enumerated in the Charter. Article 7 of the Charter provided that

‘the official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment'.

The same provision was repeated unchanged as Article 2(4) (b) of the Control Council no 10 for the Punishment of Persons Guilty of War Crimes, Crimes against Peace and Against Humanity and adopted with some modifications as Article 6 of The Tokyo Charter of the International Military Tribunal.  It was clear that what occupied the minds of the prosecutors during the Nuremberg years was the extreme criminalization of the entire machinery of Government by the Nazis and their allies. The Prosecutors indicted Nazi government organs for being criminal organizations and produced indictments criminalizing the entire Hitler's Cabinet, the secret Police, the Army command and several other government departments that were used to pursue Hitler's criminal policy. Though the Nuremberg tribunal judges refused to criminalize the Hitler Cabinet, the dissenting judgement of the Soviet Union Judge harshly chided his colleagues for refusing to declare the Hitler government a criminal organization. The dissenting judgement captures the thinking of this period in the following words:

"The Tribunal considers it proven that the Hitlerites have committed innumerable and monstrous crimes. The Tribunal also considers it proven that these crimes were as a rule committed intentionally and on an organized scale, according to previously prepared plans and directives ("Plan Barbarossa", "Night and Fog", "Bullet", etc.).The Tribunal has declared criminal several of the Nazi mass organizations founded for the realization and putting into practice the plans of the Hitler Government. In view of this it appears particularly untenable and rationally incorrect to refuse to declare the Reich Cabinet the directing organ of the State with a direct and active role in the working out of the criminal enterprises, a criminal organization. The members of this directing staff had great power, each headed an appropriate Government agency, each participated in preparing and realizing the Nazi Programme".

The Nuremberg phase however suffers one serious setback expressed by Professor Kelsen as ‘victor's justice'[xxiii]. The tribunals were set up by the victorious allied powers who after occupying Germany and Japan decided on the law to be applied with the single aim of punishing their vanquished foes and appointed judges and prosecutors to apply the system they had created.

(ii) The Post Nuremberg Phase

The Post Nuremberg phase has been marked by the UN Security Council directly, though controversially, establishing or assisting the establishment of a series of international criminal tribunals along the very lines of the post-World War 11 courts. After the Nuremberg Trials the UN General Assembly directed the International Law Commission to formulate principles of international law distilled from the Nuremberg Charter and the IMT judgement and also draw a Draft Code of offences[xxiv] to be used in creating an international criminal court of the future. The international criminal court was not created immediately as expected due to the Cold War events but for our purpose Principle III of the Nuremberg Principles provided as follows;

"The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law"[xxv]

Article 3 of the 1954 ILC Draft Code of Offences against the Peace and Security of Mankind contained a similar provision.[xxvi] The same provisions with the same standard wording were reproduced as Article 7(2) of the 1993 Statute of the International Tribunal of the Former Yugoslavia[xxvii], as Article 6(2) of the 1994 Statute of the International Tribunal for Rwanda[xxviii] and as Article 6(2) of the 2002 Statute of the Special Court for Sierra Leone[xxix].

There is a paucity of judicial opinions, less than one would in fact expect, arising from the Ad Hoc International Criminal Tribunals concerning the Head of State immunity. In the first Tribunal case relating to a former Head of State, Prosecutor v Jean Kambanda[xxx] the ICTR did not even mention the head of state immunity in relation to the accused,  but In the Milosevic case the ICTY dealt superficially with the issue when  the Tribunal's competence over a former head of state  was challenged by the Amici curiae[xxxi]. The tribunals' decisions have however one common characteristic: that is their insistence that they enjoyed a special relationship with the UN Security Council, raising the question then whether the ad hoc tribunal's power arose from customary international law or from the special enforcement power of the UN Security Council. In the Blaskic Decision the Appeals Chamber did point out that the ICTY as a UN subsidiary body created under Chapter VII of the UN Charter stood in a vertical relationship vis-à-vis states and could issue orders binding on states. The Appeals Chamber however rejected the notion that international courts in this respect enjoyed unlimited power over State Officials and declined to issue orders citing general principles of international law that affords protection to State Sovereignty. All the same the Tribunal observed that there was an exception in this respect when it comes to serious crimes of concern to the international community as a whole. The Chamber observed

"The few exceptions relate to one particular consequence of the rule. These exceptions arise from the norms of international criminal law prohibiting war crimes, crimes against humanity and genocide. Under these norms, those responsible for such crimes cannot invoke immunity from national or international jurisdiction even if they perpetrated such crimes while acting in their official capacity". [xxxii]

In the Krstic Decision the ICTY unconvincingly sought to depart from the Blaskic decision despite a strong dissenting opinion from Judge Shahabuddeen[xxxiii]. As we have noted already the ICJ in the Arrest Warrant Case did not entirely agree that state officials cannot invoke immunity before national jurisdictions in respect of the most serious international crimes. The ICJ noted obiter dictum that an incumbent or former minister of Foreign Affairs enjoys procedural immunities before national courts but "may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction."[xxxiv] So the question will arise when they have that jurisdiction and when they do not possess it. An important decision on Head of State immunity before international courts was delivered by the Special Court of Sierra Leone in the Charles Taylor Case[xxxv]. It is important however to remember that Taylor had already lost the status of Head of State when the decision was being delivered. The Special Court in its decision had to contend with the defence assertion that it was a mere domestic court of Sierra Leone and so the Court's mind was heavily pre-occupied with having to defend its status of being an international criminal Court established by the UN Security Council.

(iii) Article 27 of the Rome Statute

The current position concerning head of state immunities is expressed in the Rome Statute establishing the International Criminal Court. Article 27 of the Statute has turned to be the most problematic provision relating to the Court's jurisdiction and one that is about to bring the institution down to its knees. The Article is more elaborately structured than similar provisions contained under the IMT Charter, the Nuremberg Principles or the Statutes of the Ad Hoc Tribunals. It is framed in two paragraphs, the first paragraph dealing with official capacities of Heads of States, or Government, members of government or Parliament, elected representatives or government. The structure of the paragraph leaves no doubt that it is the Rationae Materiae immunities of state officials that are being excluded by this part. Paragraph 27(2) is more difficult because it deals with jurisdictional immunities Rationae Personae. This paragraph stipulates that personal immunities cannot bar the ICC from exercising jurisdiction. As the ICC seeks to assert its authority as a supranational Court it is faced with insurmountable hurdles arising from its application of Article 27 provisions. Here we make the following observations:

1. There is an innate weakness in the ICC structure because of its being delinked from the United Nations system. The ICC cannot therefore move with the same confidence and assertiveness over states and governments as the ad hoc Tribunals which could always fall back to Chapter VII of the UN Charter as a subsidiary organ of the Security Council bestowed with the special function for maintenance of peace and security. The Appeals Chamber of the ICTY in the Decision on the Defence Motion on Interlocutory Appeal Jurisdiction[xxxvi] emphasized the basis for the establishment of the Tribunal as follows,

"The Security Council has resorted to the establishment of a judicial organ in the form of an   international criminal tribunal as an instrument for the exercise of its own principal function of maintenance of peace and security, i.e., as a measure contributing to the restoration and maintenance of peace in the former Yugoslavia".

As a treaty based Court the ICC is disadvantaged in this respect and cannot resort to the authority of UN Charter except where a referral has been made by Security Council under Article 13(b) of the Rome Statute as in the case of Darfur[xxxvii].

1. The ICC suffers an image problem because its claim to universality is seriously dented by the absence of the major world powers such as USA, China, Russia, India and Pakistan from the slate of state parties. That means that the ICC has to tread wearily because over half of the world population that reside in these states are not subject to the Court's jurisdiction.[xxxviii] The ad hoc Tribunals could always surmount this hurdle by arguing that as a creation of the UN Security Council it had the support of the entire membership the UN. In its decision of 12th December 2011 Prosecutor vs. Omar Hassan Ahmad al Bashir[xxxix] the Pre-trial Chamber 1 alluded to the fact that because 120 states had ratified the Statute and that even non states parties had twice approved prosecution of other countries Heads of States therefore it could deduce a general practice having emerged of prosecuting Heads of States before international courts. What the Pre-Trial Chamber failed to observe was that these non-states parties are actually the major powers that dominate world politics militarily and economically and as such are driven by self-interest[xl].  Nowhere else has the application of naked power over international law been so openly displayed as in the attitude adopted by major powers towards the ICC.  The US for instance not only withdrew its signature from the Rome Statute, but even publicly campaigned against the Court by preparing Article 98(2) agreements and passing laws threatening weak states with sanctions if they did not sign them. Despite its long time disagreement with the ICC, the United States determinedly attends all meetings of the Assembly of States Parties ostensibly to offer support for the ICC but in reality to make sure that no decisions are passed that have an adverse effect on US interests[xli].It is astounding that the Pre-Trial Chamber could draw a favourable inference from such lukewarm support. Major Powers may render support to the ICC when the Court is targeting weak states and when their own leaders are not the focus of investigations, but will react quite violently if their heads of states are threatened with prosecution.

3.  Article 27 and article 98 are directly controversial and contradictory. It is evident that Article 98 is critical to curbing and limiting the ICC's interference over states sovereign rights, immunities of state officials and from upsetting international order. The ICC admitted in the Al Bashir case( just quoted) that there exists a tension between these two articles of the Rome Statute and yet proceeded to cite Article 119(1) as the basis for decision given by the Pre-trial Chamber to define its own judicial functions. The reliance placed on Article 119(1) itself is controversial and one would have expected the Court to identify the nature of the dispute as one concerning the obligations of states towards each other and as such Article 119(2) would be more appropriate in addressing the issue at hand by seeking a determination to be made either by the Assembly of States Parties or the International Court of Justice. Article 98 may be contrasted with Article 27. Whereas Article 98 appears at the co-operation structure of the Statute under the  heading "Co-operation With Respect To Waiver Of Immunity And Consent To Surrender"[xlii] Article 27 is placed in Part 3 under the heading GENERAL PRINCIPLES OF CRIMINAL LAW. General principles have a historical significance in that they are designed to safeguard the fair trial rights of an accused person. Professor Otto Trifterer,[xliii] a foremost authority in international criminal law, observes,

"Article 98 seems at first sight as contradictory and inconsistent with article 27. But article 98 does not limit the criminal responsibility under substantive law. It deals with the situations where the exercise of the Court's jurisdiction may be blocked as it is in other cases where the suspect is not available before the Court. The ratio behind Article 98 is that states should not be obliged to break their international obligations by surrendering suspects to the Court, even if this leads to impunity"

Professor Triffterer also observes also that Article 25(4) excludes questions of state responsibility from the ICC jurisdiction[xliv]. He noted that

"The Rome Statute does not deal with any form of state responsibility for commission of crimes. But it clearly    expresses that the individual criminal responsibility established by the Statute shall not affect the responsibility of states under international law. Since there is no state responsibility under the Statute it can only mean responsibility of states outside the Statute"

Any State that is faced with the prospect of arresting a Head of State or any other official will have to first determine whether by doing so that state would be in breach of international law relating to immunities which is what the Republic of Malawi tried to tell the Court. The immensity of the problem is well illustrated by the standoff between the AU and the ICC over President Al Bashir of Sudan and the international discussion over the subject[xlv] .The AU's interpretation of Article 98 seems to be similar to that of Professor Triffterer, and the AU accuses the ICC of changing customary international law. An excerpt of the AU Commission statement is worth reproducing here as it summarises the dilemma posed by the two articles follows,

"The AU Commission wishes to point out that Article 27(2) of the Statute provides 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". However, this Article 27 appears under the part of the Statute setting out ‘general principles of criminal law' and applies only in the relationship between the Court and the suspect. In the relationship between the Court and states, article 98(1) applies. This Article provides: "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". As a general matter, the immunities provided for by international law apply not only to proceedings in foreign domestic courts but also to international tribunals: states cannot contract out of their international legal obligations vis-à-vis third states by establishing an international tribunal. Indeed, contrary to the assertion of the ICC Pre-Trial Chamber I, article 98(1) was included in the Rome Statute establishing the ICC out of recognition that the Statute is not capable of removing an immunity which international law grants to the officials of States that are not parties to the Rome Statute. This is because immunities of State officials are rights of the State concerned and a treaty only binds parties to the treaty. A treaty may not deprive non-party States of rights which they ordinarily possess. In this regard, it is to be recalled that the immunity accorded to senior serving officials rationae personae, from foreign domestic criminal jurisdiction (and from arrest) is absolute and applies even when the official is accused of committing an international crime".

A disagreement of this magnitude between the ICC and states parties cannot be healthy for the Court's functioning. Professor Jan Klabbers has pointed that the legal relationship between international organizations and its member states can be complicated and may lead to uncertainty in the law relating to international organizations[xlvi]. The African Heads of States have requested its Commission to seek an advisory opinion of the International Court of Justice which should be sorted out with utmost urgency[xlvii].