No immunity

"This Statute shall apply equally to all persons without any distinction based on official capacity." - Rome Statute Article 27

The tragic events of the 20th century have shown that the immunity enjoyed by world leaders led them to commit the most heinous crimes exactly because they knew they could act with impunity. The Rome Statute is the most important development in history to rein in this unchecked abuse of power. 

Past and present leaders such as Libya's late Muammar Gaddafi, Sudan's Omar Al-Bashir, Cote D'Ivoire's Laurent Gbagbo and Kenya's Uhuru Kenyatta have all come under scrutiny at the ICC. 

However, having seen that they no longer have a free hand to act with impunity, some global leaders are trying to rewrite history to their own advantage. 

Civil society works to defend the integrity of the Rome Statute and fight against impunity for all those reponsible for grave crimes, no matter their rank or station.

The Coalition is a staunch defender of the Rome Statute, which has at its core the principle of equality of individuals, which applies without distinction to gender, age, race, color, language, religion, origin, wealth, birth, or other status.

The cornerstones of equality before the law and individuality go to the heart of international criminal responsibility, and the very nature of the redress which can be gained by victims at the ICC. 

Defending the integrity of the Rome Statute

The ICC Rome Statute expressly removes immunities of state officials, including heads of state or government. Article 27 of the Rome Statute unambiguously declares that official capacity does not preclude criminal accountability for international crimes under its jurisdiction.

By signing the Rome Statute, state parties have waived immunities to their heads of states or other state officials. At the national level, many ICC member states have excluded immunities for heads of states or government officials for international crimes in their own domestic laws.

The Coalition strongly opposes any proposals from states which will fundamentally undermine the integrity of the Rome Statute and the ICC, including amendments which would confer immunity upon government and high-ranking officials.

Such immunities would hold the real possibility that those who wield the most power and influence over a state’s apparatus and population could commit crimes with impunity, while providing an incentive for those committing the gravest crimes to entrench their power in order to avoid future accountability.    

All ICC member states must also stand up and defend the integrity of the Statute.

Read moreRead less

The erosion of immunities for heads of state

Until the Second World War, heads of state were seen as immune from international criminal prosecution as they were said to embody the inviolable sovereign state. Since then, the law and practice of several international criminal tribunals has codified the understanding that grave crimes are committed by individuals, and dispelled the notion that personal responsibility can be avoided by claiming protection offered by the abstract idea of acting as the state. 

It was the scale and planning behind the German atrocities of 1939-45 that led the Allies to prosecute the Nazi leadership at the war’s conclusion. The trials in Nuremburg set in motion the international justice movement we know today. However, it was not until the end of the Cold War that the idea gained further traction. In the 1990s, the conflicts in Yugoslavia, Rwanda and Sierra Leone prompted the United Nations (UN) to set up separate, temporary tribunals to prosecute those most responsible—including leaders such as Slobodan Milosevic and Charles Taylor. These efforts further solidified the principle of irrelevance of official capacity for serious crimes under international law.

Read moreRead less

ICC and Rome Statute definitively reject immunity

When the RS establishing the permanent ICC was adopted with no immunities in 1998, this was a definitive rejection by the international community of the paradox that legal responsibility should be the least where power is the greatest.

In 2011, an ICC pre-trial chamber said that “the principle in international law is that immunity of either former or sitting heads of state cannot be invoked to oppose a prosecution by an international court.”

The judges noted that immunity for heads of state before international courts had been rejected time and again, emphasizing that initiating international prosecutions against heads of state has gained widespread recognition as accepted practice.

Meanwhile, a seminal 2002 International Court of Justice decision specifically rejected the concept of immunity for heads of state, sitting or otherwise, before international courts.

Criminal responsibility before the ICC must be applied equally to all persons without distinction as to whether he or she is a head of state or government, a member of a government or parliament, an elected representative or a government official. Neither can official capacity constitute a ground for reduction of sentence.

The ICC, however, does not have the independent power to arrest and thus depends on the willingness of the states to arrest and transfer wanted persons. Unfortunately, lack of state cooperation continues to act as an obstruction with regard to no immunity.

An example of the complexity of this issue is the case of Sudanese president Omar al-Bashir. In March 2009, the Pre-Trial Chamber of the ICC issued a first arrest warrant against al-Bashir for crimes against humanity and war crimes but to no avail. Al-Bashir continues to make diplomatic visits around the globe, although his travel has been substantially limited.

Read moreRead less