In order to see whether head of State immunity ratione personae is applicable when a serious international crime is committed, it is important to establish the scope of this crime and the relation it has with the immunity. It is important to see the seriousness of these crimes, in relation to the necessity of immunity.
The most serious crimes within international criminal law create victimization on a “systematic and large scale” on a non-international playing field, yet overreaching the harmfulness of international conflicts, “both quantitatively and qualitatively”. These crimes are the crime of genocide, crimes against humanity, war crimes and the crime of aggression. All these crimes have in common are the grave violations of universally accepted human rights, and the general notice is that the perpetrators of these crimes need to be brought before justice.
When a crime “threaten[s] the peace and security of humankind and (..) shock the conscience of humanity”, it is most likely seen as part of compelling law. These are the fundamental rules of customary international law, and cannot be changed or breached. These norms are most commonly referred to as jus cogens norms. These norms are non-derogable and peremptory. Some international crimes are labeled as jus cogens: crime of genocide, crimes against humanity, war crimes, the crime of aggression, torture, piracy, slavery and all slave-related practices. Labeling these crimes as such has severe implications: this characterization creates the obligato erga omnes within the entire international community, both on national level and on international level, not to grant impunity to the violators of these crimes: all States have a (legal) interest in the protection against these crimes, creating the obligation towards the entire international community. This is giving them a higher level of importance, yet complicating the principle of immunity ratione personae.
The criminal liability of an individual can be expanded through modes of liability. Not only the footmen (those who physically commit the crime) at the bottom of the food chain are then liable: the puppeteers pulling the strings in the background also can be found liable, without physically hurting anybody themselves. Geographically, these senior superiors are remote from the actual and factual committing of the crime, however, there are still ways to hold them responsible under criminal law. These modes of liability are (as they are named in Article 25 (3) (b) to (3) (d) of the Rome Statute): “ordering”, “soliciting”, “inducing”, “aiding”, “abetting”, “assisting” and “in any other way contributing”. The liability can range from actual giving the orders, without leaving the option to refuse, to specifically condoning others to commit the acts. These forms of liability also fall under the protection of the immunity and are very relevant, since it is more likely that a head of State is liable under extended liability, than by actually and physically committing the crime.
Each crime (genocide, crimes against humanity, war crimes and the crime of aggression) will be elaborated briefly below: the core of the crime will be discussed, as well as the relation between the crime and the head of State and in that extension to head of State immunity. It is important to understand the severity of these crimes to understand better how they can form an exception to head of State immunity: it might clarify the dilemma between (de facto) impunity and immunity: on the one hand immunity serves a clear purpose, on the other hand this leaves these crimes unprosecuted.
A. Genocide
The crime of genocide knows a long history, even though the term was only invented at the end of World War II, to describe the atrocities of the Holocaust. The term is based on the Greek word for people or race “genos” and the Latin word for to kill: “cide”, putting the focus on the very core of the crime: the killing of a specific group of people.
In 1948 the Genocide Convention came about, giving a definition, which was then almost verbatim repeated by the Rome Statute.
The most important element of this crime is the mental element: the direct intent to destroy. This goes quite far since even if one person is killed, but the intent is to destroy (part of) the group, it suffices as genocide. However a “contextual element” is added in the ICC definition of genocide, to prevent hate crimes to fall under the broad scope of genocide: there must be “a manifest pattern of similar conduct” before an act is genocide, or the perpetrator must be able to destroy (part of) the group.
Genocide is not a crime that requires any form of official status, however, it can still be committed at any level: Article 33 of the Rome Statute states that “orders to commit genocide (..) are manifestly unlawful”, making it easier to prosecute all chains of command, all the way up to the highest rank.
B. Crimes against humanity
Crimes against humanity is a general term for a variety of crimes and was initially used to fill in the gaps that remained in the law of war crimes, however, crimes against humanity often overlap with war crimes. The main difference would be that there is no need for an armed conflict to speak of crimes against humanity. The definition in the Nuremberg International Military Tribunal Statute, the Tokyo International Military Tribunal Statute, the ICTY Statute and the ICTR Statute and the Statute for the Special Court for Sierra Leone all overlap, yet are not completely the same, creating a (messy) patchwork of crimes. The ICC Statute then came with a widely ratified definition of the crimes. Article 7 of the Rome Statute states a list of all acts that crimes against humanity entails and these acts must be part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. This attack must be widespread, which means large-scale both in nature and in number of victims. In addition, it must be systematic, which refers to an organized nature, excluding random attacks: it must be a policy of some sort. This policy-aspect as a contextual element to the crime opens the possibility for modes of liability vis-รก-vis the head of State: it must be the policy of the Government, and to that extent to the head of State, to commit these acts.
C. War crimes
War crimes can be committed during an interstate armed conflict as well as an intrastate armed conflict. War crimes are the “criminal phase of humanitarian law”. This means there is a narrow relation between humanitarian law and war crimes: the violation of the Geneva Conventions have been criminalized.
A distinction is made between interstate conflict and intrastate conflict and both are relevant with regards to the head of State. The ICC requires some sort of plan or large-scale commission before an act can be a war crime, according to Article 8 (1) of the Rome Statute. A specific reference is made in the second Paragraph under (a) of Article 8 to the Geneva Conventions, the listed crimes all include a grave breach of the Geneva Conventions. Under (b) the crimes based on customary law are included. Crimes breaching common Article 3 of the Geneva Convention are criminalized under Article 8 (2) (c), only applicable to non-international armed conflict. Under (e) other crimes than common Article 3, yet within a non-international armed conflict, are criminalized.
The necessity of a plan or a large-scale commission implies a form of command, or a chain of command, making it relevant to head of State immunity: the Government can pull the strings to make lower rank officials to commit these crimes. In addition, it often occurs that the head of State is also Commander-in-Chief, making him automatically responsible for the atrocities committed under his command.
D. Crime of aggression
The crime of aggression is the most controversial crime within international criminal law. It was firstly named crime against peace during the Nuremberg trials and the Tokyo trials, however never was a clear cut definition of the crime given. The controversy remained while drafting the ICC statute. It was only during the conference in Kampala, Uganda, that the elements of the crimes have been established, giving the ICC the jurisdiction over this crime.
The Rome Statute defines the crime of aggression in Article 8bis as follows: “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” In Paragraph 2 “act of aggression” is further defined as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.”
The controversy lies within the “manifest violation of the Charter of the United Nations”, but no controversy on the perpetration by high ranked officials only. This crime resolves around the State responsibility for aggressive acts: this crime can only be committed on behalf of a State and as a part of a State plan or policy. With special regards to head of State immunity, this is very interesting, since this crime can only be committed by (State) leaders and other high-level policy makers (both political and military policy making), which creates an analogy with the Pinochet case. As Paragraph 2.2 will show, prosecuting an incumbent head of State by the ICC is not all that easy, making this crime difficult to enforce, yet not impossible.
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