[Editor’s Note: This article is part of a Just Security series, Prosecuting the Crime of Aggression Against Ukraine. All articles in the series can be found here.]
Part III of this series touched upon the concept of immunities. This post expands on that issue and explains why personal immunities enjoyed by sitting heads of State, heads of government, and ministers for foreign affairs (“the troika”) before foreign domestic criminal courts and tribunals do not represent a bar to their prosecution for crimes under international law before international criminal courts and tribunals, including the proposed Special Tribunal for the Crime of Aggression (“STCoA”).
1. Personal Immunities Do Not Apply Before International Criminal Courts and Tribunals under Customary International Law
The Distinction between National and International Criminal Courts and Tribunals
The International Court of Justice (“ICJ”) is clear that personal immunities do not bar prosecution before certain international courts and tribunals. In its 2002 Yerodia Judgment, the ICJ created a distinction in the enforcement of crimes under customary international law before foreign domestic courts and before international courts and tribunals. It established that a sitting head of state, head of government, or (by analogy) a minister for foreign affairs enjoys personal immunities from jurisdiction before foreign domestic courts (para. 51). Yet, it found that no such immunities apply before international criminal courts and tribunals (para. 61). While the notion of personal immunities before foreign domestic courts remains somewhat controversial (see, e.g., Yerodia, separate and dissenting opinions), the distinction informs the current status of international law. As long as the individual remains in office, only an international criminal court or tribunal may prosecute a head of state, head of government, or minister for foreign affairs for crimes under customary international law. Accountability of an incumbent head of state, head of government, or minister for foreign affairs before foreign domestic courts must wait (unless their personal immunity is waved by their own government) until their term in office ends.
Judicial Rulings Confirm that Personal Immunities Do Not Apply before International Courts and Tribunals
International courts and tribunals have repeatedly recognized that personal immunities do not apply before international criminal courts and tribunals prosecuting crimes under customary international law.
Significantly, the International Criminal Tribunal for the former Yugoslavia (“ICTY”) confirmed the indictment against former President Slobodan Milošević of the Federal Republic of Yugoslavia and transmitted his arrest warrant to all U.N. Member States at a time when Milošević was still a sitting head of state (Decision on Review of the Indictment and Application for Consequential Orders, ICTY, May 24, 1999).
That personal immunities do not attach before an international criminal court or tribunal was then confirmed by the ICJ in its Yerodia Judgment. The Yerodia case concerned a Congolese foreign minister facing an arrest warrant issued by a Belgian court for crimes under international law allegedly committed before his tenure as foreign minister. The ICJ held that the foreign minister enjoyed immunity before the Belgian court. In reaching the ruling, the ICJ differentiated between foreign domestic courts and “certain international criminal courts” before which such immunity for heads of state, heads of government, and ministers for foreign affairs would not attach.
Specifically, the ICJ explained:
an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda, established…