Authored by Ishita Chandra, IV year student at Dr. B.R. Ambedkar National Law University, Sonepat
Introduction
A few months ago, the USA Supreme Court ruled that former President Donald Trump is qualified for absolute immunity from criminal prosecution for acts taken within his exclusive constitutional authority during his presidency. In a ruling based mainly on the doctrine of separation of powers and the need to protect the Presidency from the fear of future prosecutions, the court, by a 6:3 majority, has ruled in favour of presidential immunity. The verdict does not decide whether former President Donald Trump will enjoy immunity from prosecution for allegedly trying to meddle with or alter the result of the November 2020 presidential elections that he lost to Joe Biden. Instead, it furnishes a threshold test for any intended prosecution of a President to see whether the act complained of involved exercising a core constitutional duty, or not. With respect to the President’s core constitutional duties, the immunity is absolute; for other official acts, he enjoys presumptive immunity. Presumptive immunity means that he is presumed to be immune unless rebutted by facts; and for unofficial or private acts, there is no immunity at all.
This decision presents queries concerning the immunity awarded to the heads of the states vis-à-vis their liability for the perpetration of crimes. This article seeks to examine the legal position regarding the liability of the heads of the States in contrast with their accountability as perpetrators of crimes in light of international humanitarian law.
Immunity Under International Criminal Law – Sovereign Immunity v. Personal Immunity
Sovereign immunity, or state immunity, safeguards the state itself and its agencies from being sued or prosecuted in the courts of another country. This principle stems from the idea of equality between sovereign states, suggesting that one state should not exercise jurisdiction over another. Sovereign immunity generally applies to actions performed by the state in its official, governmental capacity, such as diplomatic activities, military operations, or administrative acts. However, it does not extend to commercial or private acts; if a state engages in commercial activities like a private entity, it may be subject to foreign jurisdiction.
On the other hand, “Personal Immunity”, or immunity ratione personae, is a protection granted specifically to high-ranking officials – such as the Head of State, Head of Government and Minister for Foreign Affairs, shielding them from legal proceedings in foreign courts for the duration of their office, regardless of whether the actions were performed in an official or personal capacity. The list of officials benefitting from personal immunity is not restricted to just those three and there is a tendency to expand it, because functions of some officials can be comparable to those of Foreign Ministers and they need immunity to perform them. Functional and representative necessity, the ideals of sovereign equality and non-interference in domestic matters, the need to maintain the stability of foreign relations, and the autonomous execution of state functions are the root causes of it. Personal immunity is absolute during the official’s term and aims to allow uninterrupted conduct of diplomatic and state duties. Once the individual leaves office, however, personal immunity ceases to apply. Nonetheless, acts performed in an official capacity may still be protected under functional immunity (immunity ratione materiae), meaning that a former official may still be immune from prosecution for actions carried out as part of their official role.
No exception to the rule according absolute immunity from criminal jurisdiction in foreign courts to ministers, even when they are accused of war crimes or CAH (Crime(s) against humanity), exists in CIL (Customary international law). Such an exception may develop, but it has to be a policy decision by the States, not a state of law finding of judicial institutions. Personal immunity of incumbent high-ranking officials applies in national jurisdictions even in cases concerning crimes against international law. An exception to this firmly established rule could only be found in the legal basis of the Court.
The International Court of Justice (ICJ) in the case of the Democratic Republic of the Congo v. Belgium (the Arrest warrant case), held that that certain high-ranking officials enjoy absolute immunity from criminal jurisdiction in foreign courts during their tenure, regardless of the nature of the acts in question. The ICJ emphasized that this immunity was rooted in the need for high-ranking officials to represent their states freely on the international stage without the risk of arrest or detention abroad. The Court clarified that this immunity is procedural and does not exempt officials from criminal responsibility under substantive international law.
However, the ICJ noted that the immunity of these officials does not protect them indefinitely or in all circumstances. It outlined that:
- Personal immunity applies only while the individual is in office and can be lifted once they leave their position.
- No immunity exists before certain international courts, such as the International Criminal Court (ICC), if those courts have jurisdiction and the state consents.
- States may seek to waive immunity and permit prosecution if they choose.
It was further observed that no other state can exercise its universal jurisdiction and prosecute the alleged offender for his actions amounting to universal crimes, as long as he holds an office of significant importance in a state. To support such reasoning, the court went on to explain that “Immunity from criminal jurisdiction and individual criminal responsibility” are two distinct concepts. Immunity from criminal jurisdiction/Personal Immunity is a temporary shield that high-ranking officials like foreign ministers or heads of state hold against criminal proceedings in foreign courts while they are in office. It is procedural because it simply bars foreign courts from initiating legal action against them, regardless of the nature of the alleged acts. Whereas, individual criminal responsibility refers to the actual liability or guilt for committing certain crimes, such as war crimes, genocide, or crimes against humanity, which are prohibited by substantive international law (the body of law that defines the rights and obligations regarding these serious offenses). Immunity does not “erase” or justify these acts; it merely delays the possibility of prosecution until they leave office or appear before a proper forum.
Absence of Sovereign Immunity
On the contrary, Article 27 of the Rome Statute ensures that no immunity is provided to heads of States and government officials. They are not exempt from criminal liability for their acts. The Statutes of other tribunals like Article 7(2) of ICTY, Article 6(2) of ICTR, Article 6 of SCSL, Article 7&8 of IMT Charter and Article 6 of IMTFE also eliminate immunity for heads of State. Unlike domestic jurisdictions, international Courts deal with international crimes and do not act on behalf of a particular State but rather on behalf of international community as a whole. Hence, there is no State practise or opinio juris to establish head of State immunity in relation to international crimes. The international tribunals in the past have prosecuted head of States including President Milosevic of Serbia, PM of Rwanda, President Charles Taylor of Liberia and Al-Bashir of Sudan.
Superior-Subordinate Relationship and Effective “Authority and Control”
Article 28(b) of Rome Statute particularly regards non-military superior responsibility in which a civilian leader might possess required control and fail to exercise his/her control to prevent the crime. For the superior to be liable, (i) the superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; (ii) the crimes concerned activities that were within the effective responsibility and control of the superior; and (iii) the superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.” Thus, if a superior knew or should have known that a crime was about to be committed or had already been committed, failed to take all reasonable and necessary precautions to prevent the crime, and had the authority to direct or discipline his subordinates’ behaviour, he may be held criminally accountable.
“Effective control” is a key element in the doctrine of superior responsibility. Only when a superior exercises effective control can the de facto or de jure commander/superior be held liable for crimes committed by the subordinate. Having control means having effective authority over subordinates. Effective control requires that the superior possessed the technical means to stop the crimes and punish the offenders.
Superior responsibility is that link between leaders and superiors that can be blamed for whenever the commission of crimes happened. This type of responsibility exist to answer the issue of whether a superior can be held responsible for indirect subordinates, mostly civilian population at large who somehow de facto are under the effective control of a non-military leader.
For a superior to be liable under Article 28(b), he must exercise effective authority and control. Here, “control” is an umbrella term encompassing command and authority and ‘authority’ refers to the right or permission to act legally. A superior with command and authority normally controls his or her forces or subordinates and has the and has the capacity to issue orders.
According to Article 30(3) of the Rome Statute, knowledge means “awareness that a circumstance exists or a consequence will occur in the ordinary course of events”. The ICTY has correctly stated that knowledge may be established by circumstantial evidence (indicia) but it may not be presumed. A superior has an obligation to monitor the actions of his subordinates and will be held responsible for the knowledge that a reasonable agent in his position would have possessed. The superior must be guilty of “wilful blindness” in order for knowledge to be assumed, because deliberate ignorance and positive knowledge are equally culpable. Conscious ignorance in the sense of wilful blindness does not exclude criminal responsibility.
Control is the key concept in establishing the scope of de facto superior responsibility of nonmilitary superiors. In Čelebići, the Trial Chamber ruled that, in order for the principle of superior responsibility to be applicable to nonmilitary superiors, an element of control is vital.
A superior may be held liable under the principle of superior responsibility, based on his de facto position of authority. There also needs to be at least an indirect superior-subordinate relationship and effective control over subordinates. The superior being a merely influential person is not sufficient in assessing such a person’s authority. Additionally, even if a superior-subordinate relationship is established, the superior’s knowledge of the commission of crimes by the subordinates is also vital to hold the superior criminally responsible under Article 28(b) of the Rome Statute.
The requirement that the crimes of the subordinates be a result of the superior’s failure to exercise control properly implies a causal relationship between the superior’s failure and die subordinate’s commission of crimes. It is sufficient that the superior’s failure of supervision increases the risk that the subordinates commit certain crimes.
Conclusion
Concerning the USA, the case of United States v. Nixon is a vital precedent restricting the power of any U.S. president to claim executive privilege. Similarly, when it comes to international criminal law, the ICC while exercising its jurisdiction ensures that public officials and heads are not allowed to shelter themselves under their position and immunity that comes with the position so as to avert prosecution and punishment. International law cannot be said to accept immunity for those crimes that the international community as a whole condemns. ICC holds that the perpetrators committing crimes that have been recognized as jus cogens or universal crimes cannot be easily let off by a shield of sovereign immunity which more than often facilitates impunity.
Learning from such precedents and provisions, it becomes imperative to realise that while there is a possibility that former President Donald Trump may have been acting in his capacity as a candidate or a party leader in some instances, it is astonishing that the verdict allows the use of the presidency as a shield even in matters that solely concern the election process.
Picture: Brookings Institution