Why President Mugabe should not enjoy state immunity for the crime of torture. Legal Submission to the Court.
The Justices’s Clerk
Bow Street Magistrates’ Court
28 Bow Street
London WC2E 7AS
7 January 2004
Dear Justices’ Clerk,
Application for a WARRANT for the ARREST and EXTRADITION of ROBERT GABRIEL MUGABE, President of the REPUBLIC OF ZIMBABWE
On charges of TORTURE under SECTION 134 of the CRIMINAL JUSTICE ACT 1988
I hereby lay an information and apply for a warrant for the arrest and extradition to the UK of Robert Gabriel Mugabe, President of the Republic of Zimbabwe, Office of the President, Munhumutapa Building, Box 7700, Causeway, Harare, Zimbabwe, on charges that he did:
Between 29 September 1988 and 7 January 2004, being a public official, intentionally authorised, condoned and acquiesced in the infliction of severe pain or suffering on another in the performance of his official duties;
Between 29 September 1988 and 7 January 2004, being a public official, conspired with other persons to intentionally inflict severe pain or suffering on another in the performance of his official duties;
contrary to Section 134-(1) of the Criminal Justice Act 1998.
Consent of the Attorney General not required
According to Section 135 of the Criminal Justice Act 1998, the consent of the Attorney General consent is required for prosecutions under Section 134. This requirement is not, however, a bar to the issuing of an arrest warrant, as the court determined in the Pinochet case when it issued an arrest warrant under Section 134 in 1998.
Despite the caveat of Section 135, issuing an arrest warrant is within the power of the court. Were a warrant issued, it would then be up to the Attorney General to decide whether or not to authorise a prosecution. In other words: the question of an arrest warrant is a matter for the court; the question of a prosecution is a matter for the Attorney General.
It would not be right for the court withhold an arrest warrant on the basis of Section 135. That would, I believe, unjustifiably pre-empt what the Attorney General may or may not decide with regard to authorising a prosecution.
The absence of legal redress in Zimbabwe
I make this application to this court because there is no possibility that such an application could be made, with any serious prospect of success, in a court in Zimbabwe.
The Zimbabwean judiciary has suffered gross threats and intimidation by state agents, such as the police and intelligence services, forcing the cowing and resignation of judges. In the current climate of state-sponsored terror in Zimbabwe, there is no realistic possibility that any court would prosecute Mr Mugabe.
In any case, President Mugabe enjoys immunity from prosecution under the Zimbabwean Constitution.
Moreover, Zimbabwe has not ratified the United Nations Convention Against Torture 1984; nor has it ratified the United Nations Rome Statute 1998, which means it is not under, and does not accept, the jurisdiction of the International Criminal Court.
The victims of torture in Zimbabwe therefore have no meaningful or effective methods of redress in the courts of their own country.
Prima facie evidence – The affidavits of Ray Choto and Gabriel Shumba
As prima facie evidence for the above charges, I submit the affidavits of Raymond Morgan Choto, a journalist, currently resident in Washington DC, United States of America; and of Gabriel Shumba, a lawyer, currently resident in Pretoria, South Africa.
Mr Choto and Mr Shumba have consented to their affidavits being used in this application. With adequate notice, they are willing and able to come to court to testify in support of this application.
Both men are citizens of Zimbabwe. They suffered severe torture at the hands of agents of the Zimbabwe state: variously, police, military and intelligence officers. Mr Choto was tortured in 1999 and Mr Shumba in 2003. Both men fled abroad because they feared being killed by the aforementioned state agents if they remained in Zimbabwe.
Ray Choto was tortured in January 1999. Then a journalist on The Standard newspaper in Harare, his affidavit states that at Cranborne military barracks he was required to strip naked and placed in leg-irons. His interrogators, who were military intelligence officers, then bought into the room “an electrical cord with two bare wires at the end. One end of the wire was tied around one of my toes and the other, as this progressed, on various parts of my body. Each time both ends were connected my whole body would go into violent convulsions. Between the attacks there would be short periods whilst the wires were disconnected and all I could hear were words like ‘talk, talk'”
According to his affidavit, during a second day of torture at Cranborne barracks Mr Choto was “subjected to slaps, kicks, punches”, and was “beaten with a plank on my buttocks, on the soles of my feet”. He also suffered “asphyxiation by immersion in water bags, electric shock treatment.and (was) kept throughout in leg-irons and handcuffs”.
Ray Choto’s torture was documented in an “Urgent Action” briefing issued by Amnesty International on 22 January 1999. It is corroborated by medical reports from Drs Chigwanda and Bandason in Harare, Zimbabwe, and Dr Forrest of the Medical Foundation for the Care of Victims of Torture, in London. Copies of their reports are available for examination.
Mr Choto’s verifying affidavit directly implicates Robert Mugabe in the authorisation of his torture:
“I have no doubts that those perpetrating the violence and torture against the late Chavunduka (Mark Chavunduka, a fellow Standard journalist who was arrested and tortured with Choto) and me were acting under instructions from the highest authority. The involvement of the Police, Military and the Central Intelligence Organisation was organised, co-ordinated and plainly arranged by the Executive. In order to secure the co-operation of these three state bodies, an Executive directive would be required. Indeed, I was advised during the course of my torture that the President of Zimbabwe had signed my death warrant”.
Mr Choto’s verifying affidavit concludes: “Following presentation to the Police of the affidavits of complaint sworn to by the late Chavunduka and myself, no prosecution of those responsible took place and the Police undertook no investigation of our respective allegations. Our complaints were ignored and have not been acted upon. Had our treatment not been sanctioned at the highest level, the matter might have been investigated thereafter. It was not”.
Mr Mugabe subsequently appears to have confirmed his acquiescence with Mr Choto’s torture. “I will not condemn my army for having done that.they can do worse things than that,” he boasted to Voice of America radio.
Gabriel Shumba, a human rights lawyer, suffered similar torture in January 2003, at the hands of the police, at a place unknown, roughly three flights of stairs underground (he was taken there blindfolded). His affidavit recalls: “One cable was tied to the middle toe of my right foot, whilst another was tied to the second toe of the left foot. Another copper wire was wrapped tightly around my genitals. Yet another one was put into my mouth.A blast of electric shocks was then administered to my body.I lost consciousness, only to be revived to face the same ordeal.I also lost control of my bladder, vomited blood and was forced to drink my urine and lick my vomit”.
Mr Shumba’s affidavit concludes by also suggesting that Mr Mugabe has, at the very least, condoned and acquiesced in the use of torture: “It is my sincere belief that my torture and ill-treatment was authorised and condoned at the highest level of the Zimbabwe state. It is inconceivable that President Mugabe is unaware that his police, army and intelligence officials are using torture. The President has been aware that torture is being used against human rights activists and those suspected to be linked to the MDC (the Movement for Democratic Change, Zimbabwe’s main opposition party), as is exemplified by the case of Mark Chavunduka and Ray Choto. Nevertheless, he is taking no discernible steps to either condemn or stop the use of torture”.
These cases are not isolated and untypical. Under Mr Mugabe’s regime, torture has become an instrument of state policy. Its use is widespread and routine. According to the Zimbabwe human rights watchdog, the Amani Trust, torture is “systematic”; while Amnesty International accuses Mugabe’s government of “deliberately promoting” torture. The US Institute of Peace corroborates that torture is “rampant”.
From January 2000 to February 2003, 260 opponents of the Mugabe regime are known to have been murdered and 3,409 tortured, according to the Zimbabwe Human Rights NGO Forum.
Inge Genefke, founder of the International Rehabilitation Council for Torture Victims, has testified on behalf of many tortured Zimbabweans. She says Mugabe “without any doubt has knowledge of.and thereby was responsible for the torture in Zimbabwe”.
As evidence of the endemic, prolific nature of state-sanctioned torture by the police, army and intelligence services, I submit copies of:
Amnesty International – Report June 2000, April 2001 and October 2001
Amnesty International – Annual Reports 2001, 2002, and 2003
Zimbabwe Human Rights NGO Forum – Reports March 2000, March 2001, March 2002, July 2001, December 2002 and March 2003
Amani Trust – Report June 2002
International Rehabilitation Council for Torture Victims – Reports June 200 and June 2001
International Crisis Group – Reports October 2002, March 2003 and July 2003
Robert Mugabe’s command responsibility for torture by military personnel
Under the Constitution of Zimbabwe, the President is Commander-in-Chief of the Zimbabwe Defence Forces (Chapter IV, Part 1, The President, Section 27).
As such, the President, Robert Mugabe, has ultimate command responsibility for criminal conduct, such as torture, by military personnel.
Although I am not making this application under the UN Rome Statute 1998, it is nevertheless worth noting that this Statute is a good example of the on-going, evolving way international human rights law increasingly holds high officials responsible for heinous crimes against humanity.
Of particular interest concerning Mr Mugabe’s role and responsibility as Commander-in-Chief of the Zimbabwe Defence Forces (ZDF) is Article 28 of the 1998 Statute. It codifies military command responsibility for crimes against humanity, such as torture, as follows:
“A military commander shall be criminally responsible for crimes.committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:
That military commander or person either knew or, owing to the circumstances at the times, should have known that the forces were committing or about to commit such crimes; and
That the military commander or person 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”.
It may be appropriate for the court to be mindful of these principles of developing and expanding international human rights law concerning military command culpability when considering this application.
In the specific case of Mr Choto, his affidavit states he was tortured by military personnel. The previously cited evidence from Mr Choto, and the aforementioned submitted documents and reports from various human rights organisations, suggest that Robert Mugabe, Commander-in-Chief of the Zimbabwe Defence Forces, was aware of, or should have been aware of, the use of torture by military personnel, and that he has taken no identifiable action to either condemn or halt such torture, or to prosecute or discipline the perpetrators of such torture.
In addition to his acts of commission, these acts of omission are contrary to Section 134 (3) of the Criminal Justice Act 1988.
As Commander-in-Chief of the ZDF, Robert Mugabe bears command responsibility for acts of torture committed by members of the ZDF.
Even if it is accepted that Mr Mugabe has immunity from prosecution as Head of State, a warrant for his arrest and extradition can and should be served on him in his capacity as Commander-in-Chief of the ZDF.
STATE IMMUNITY – ROBERT MUGABE IS NOT IMMUNE FROM PROSECUTION
The following is summary of the key arguments why Robert Mugabe does not, and should not, be afforded the protection of state immunity for the crime of torture:
The ICJ ruling of 14 February 2002 – A licence to torture for Heads of State
The International Court of Justice (ICJ), in a ruling concerning the Democratic Republic of the Congo v Belgium, made on 14 February 2002, erred when it ruled that serving Heads of States have absolute immunity from prosecution.
This ruling cannot be considered the final, definitive word on state immunity; no more so than the decisions of the US courts to uphold the legality of racial segregation in the southern states prior to the 1950s and 60s.
The ICJ’s judgement is an interpretation of international jurisprudence; an interpretation that is open to dispute and rejection by this court. It has already been questioned by some of the judges who heard the case.
The question of whether or not Heads of State have immunity from prosecution, and to what degree and in what circumstances, is clearly an area of legal contention and evolution. It is a point of law that is in a process of debate and development; as evidenced by the creation of the International Criminal Court, which has extended the legal accountability of Heads of State for crimes against humanity, including torture.
If the ICJ erred in its decision of February 2002, as I believe it did, and as I will show by reference to the dissenting opinions of some of the ICJ judges who presided over that case, then its ruling should be open to challenge and reconsideration by this court.
There are number of glaring, common sense and humanitarian flaws in the ICJ’s judgement:
One implication of its ruling is that a new Adolf Hitler who tortures and exterminates six million people could, so long as he remained Head of State, be granted state immunity for the crimes of genocide and torture.
A reasonable person may ask: What is the point of having international human rights laws if the main abusers – Heads of State – are effectively exempt from prosecution?
To give another example: If I grab another person in the street and subject him to gruesome tortures, I will face very serious criminal charges and punishment. But if President Mugabe tortures a million of his countrymen and women, he is, according to the ICJ, immune from prosecution for as long as he remains Head of State.
The law is supposed to be about justice. Where is the justice when victims of torture have no redress because their torturer is a Head of State?
If the ICJ’s decision is allowed to stand, we may as well tear up the Geneva, Genocide and Torture Conventions. They are, according to the ICJ’s interpretation of the law, next-to-worthless bits of paper when it comes to dealing with human rights abuses by Heads of State.
The doctrine of state immunity protects some of the world’s worst human rights abusers – the very criminals that international human rights laws are supposed to bring to justice. That cannot be right. It is certainly not just.
The ICJ’s ruling, by protecting serving Heads of State from prosecution, has alarming, dangerous consequences. It encourages Heads of State who use, or have used, torture to cling to power, and this continuation of their rule perpetuates their infliction of torture. It gives them no incentive to relinquish power and every incentive to hold on to it. As long as the doctrine of state immunity remains in force, they know that while they remain a Head of State they are, for the most part, legally untouchable. Conversely, they also know that as soon as they leave office they may render themselves liable to prosecution. The ICJ’s ruling offers a de facto carte blanche to sustain the rule of torturers.
The responsibility of national courts to exercise universal jurisdiction against torturers, regardless of their status
With regard to the jurisdiction of national courts over Heads of State accused of torture:
The ICJ erred in Section 58 (paras 2 and 3) of its judgement when it found that the exceptions to state immunity set out in international criminal tribunals and the statute of the International Criminal Court are not applicable to national courts.
The paramount legal principle is the criminality of the acts, not the jurisdiction of particular courts. If torture is a crime under international law, and if precedents and legislation deny immunity to Heads of State for involvement in acts of torture, then Heads of State can be tried on charges of torture as legitimately in national courts as in international courts and international criminal tribunals.
Developments in international human rights law have already moved in this direction.
The United Nations Convention Against Torture (UNCAT) 1984 establishes the principle of universal jurisdiction with regard to the crime of torture. It gives this principle effect by granting jurisdiction to the national courts of states that ratify UNCAT. It is entirely consistent with this principle of universal jurisdiction that national courts be allowed to rule on the substantive issue of law embodied in UNCAT: namely the illegality of torture, regardless of the status of the perpetrator and the place where the torture was committed.
The evolving nature of international human rights law governing crimes against humanity, such as torture
Contrary to the set-in-stone judgement of the ICJ in February 2002, evolving customary international law increasingly no longer accepts the right of Heads of State to enjoy absolute immunity for grave crimes against humanity, such as torture, as the following examples illustrate:
Ever since signing the Versailles Treaty in 1919, the international legal system (endorsed by Britain as a signatory) has accepted that Heads of State cannot plead they are above the law when they stand accused of “offences against international morality”, including major human rights violations. Article 227 of the Treaty of Versailles set the precedent in international law that Heads of State are not immune from prosecution, when it arraigned the German Emperor, William II.
The Nuremberg Tribunal judgement of 30 September 1946 reiterated this precedent when it ruled that the top Nazi leaders, including Karl Doenitz, Hitler’s successor as German leader, did not enjoy immunity for crimes against humanity. Doenitz was found guilty and sentenced to 10 years jail. Principle 3 of the Nuremberg Principles, agreed by the British government, states: “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”. For the British state and the international community to now renege on the Nuremberg Principles would be a monstrous betrayal of the millions who perished in the Holocaust and of the millions more who sacrificed their lives to end the tyranny of the Third Reich.
The legal trend begun at Versailles and continued at Nuremberg was further developed with the enactment of the United Nations Convention Against Torture 1984. Article 4 1. says each state party to UNCAT (such as Britain) must ensure that “all acts of torture” are criminal offences under domestic law and this criminalisation must apply to an act by “any person” that “constitutes complicity or participation in torture”. UNCAT grants no exemptions to Heads of State.
These earlier precedents were given practical effect by the International Criminal Tribunal on the former Yugoslavia when it indicted Slobodan Milosevic on 26 May 1999, while he was still the serving Head of State of Yugoslavia. He did not cease to be the Yugoslav Head of State until 6 October 2000. If Mr Milosevic can be indicted, even though he was President at the time, why cannot President Mugabe be similarly served with a warrant for his arrest on charges of torture?
Article 27 of the UN Rome Statute 1998, which created the International Criminal Court, explicitly declares there is no immunity for Heads of State with respect to crimes against humanity, such as torture: “Official capacity as a Head of State.shall in no case exempt a person from criminal responsibility under this Statute”. The coming into force of the Rome Statute in July 2002 further evolves international human rights law. It takes precedence over the decision of the ICJ in February that year.
Continuing the legal trend to void immunity for Heads of State for grave human rights abuses, the Liberian leader, Charles Taylor, was indicted on 4 June 2003. Despite being President, he was served an arrest warrant on charges of “serious violations of international humanitarian law”. Again, why the double standards? Why Mr Taylor but not Mr Mugabe?
During the 2003 Iraq war, there were two US attempts to assassinate the then Iraqi President, Saddam Hussein. One attempt was on 20 March 2003 and the other took place on 7 April of that year. The UK government defended these attempts as the lawful exercise of military power. The proposition that a Head of State can be lawfully assassinated but not lawfully prosecuted for crimes against humanity, such as such as torture, is devoid of credibility. If it is legitimate to assassinate a Head of State, then surely a Head of State can be put on trial?
In the particular case of Robert Mugabe, it is already agreed by many nations, including the European Union and the United States, without any dissent from national or international courts, that despite Mr Mugabe’s official position as a serving Head of State, his crimes against humanity, including torture, justify the limitation of his state immunity. The travel ban imposed on Mr Mugabe is a punitive abrogation of his immunity as a Head of State. It directed against him in his official capacity as President of a regime that practices gross human rights abuses. This punitive sanction is based on an acknowledgement that Heads of State do not enjoy absolute immunity. They should, and can, be held to account for grave crimes, such as the torture routinely meted out by Mr Mugabe’s state agents. Under the travel ban, Mr Mugabe is not ordinarily free to visit the US and European Union, except on official UN or diplomatic business. There has been no legal challenge to this curtailment of his supposed immunity as a Head of State. If Mr Mugabe’s immunity can be lawfully restricted in this way, why not in others? Why can’t he be called to account for violating the internationally agreed laws that prohibit the use of torture?
SUBSTANTIVE AND DETAILED LEGAL ARGUMENTS AGAINST STATE IMMUNITY
For my substantive, detailed legal arguments as to why Robert Mugabe is not entitled to state immunity for the crime of torture, I will first submit legal opinions proffered by Law Lords in the Pinochet judgement of 1999; and then submit the learned views of the ICJ judges who gave separate opinions from the majority verdict in 2002.
The House of Lords judgement in the Pinochet case 1999
The ICJ decision in Congo v Belgium case regarding sovereign immunity should not apply in this case for the following reason. My application concerns acts of torture (as opposed to Belgium alleging crimes against humanity generally and genocide). This is an important distinction because of the nature of torture, as defined by Section 134 of the Criminal Justice Act 1988 and by the UN Convention Against Torture (UNCAT) 1984. These definitions specify the official or governmental character of the acts of torture as a constituent element of the crime and consequently:
“Since the offence can only be committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity, `[t]he official or governmental nature of the act, which forms the basis of the immunity, is an essential ingredient of the offence. No rational system of criminal justice can allow an immunity which is co-extensive with the offence.” (Lord Millet, Pinochet case)
For this reason the Law Lords in the Pinochet case found that immunity would be incompatible with the provisions of the UNCAT.
Their reasoning is best explained in the following extract from an article in the European Journal of International Law, which I quote and submit as part of my evidence in support of this application:
European Journal of International Law:
“On the issue of immunity, only Lord Goff of Chieveley, entirely endorsing Lord Slynn’s opinion in the first ruling, held that General Pinochet enjoyed immunity. In particular, Lord Goff maintained that nothing in the Torture Convention could be construed as an express waiver of state immunity. Nor could such a waiver be reasonably implied.32
The other Law Lords, albeit on different grounds, found non-immunity in the circumstances of the case. In particular, Lord Browne-Wilkinson, the presiding Law Lord, after stating that the prohibition of torture became `a fully constituted international crime’ only by the adoption of the Torture Convention, which set up a `worldwide universal jurisdiction’,33 held that the `notion of continued immunity for ex-heads of state is inconsistent with the provisions of the Torture Convention’ and that torture, as defined in the Convention, `cannot be a state function’.34
Among the reasons for holding that acts of torture cannot be qualified as a function of a head of state, Lord Browne-Wilkinson mentioned the following: i) international law cannot regard as official conduct something which international law itself prohibits and criminalises; ii) a constituent element of the international crime of torture is that it must be committed `by or with the acquiescence of a public official or other person acting in an official capacity’. It would be unacceptable if the head of state escaped liability on grounds of immunity while his inferiors who carried out his orders were to be held liable; iii) immunity ratione materiae applies to all state officials who have been involved in carrying out the functions of the state, to hold the head of state immune from suit would also make other state officials immune, so that under the Torture Convention torture could only be punished by the national state of the official
Therefore, starting from the moment in which the UK became party to the Convention, Spain and Chile having already ratified it, all the parties involved had agreed to exercise extraterritorial jurisdiction over acts of torture committed by or with the acquiescence of state officials.35
On a similar line of reasoning, Lord Hope of Craighead held that Chile had lost its right to object to the extraterritorial jurisdiction of the UK upon its ratification of the Convention which would prevent the parties from invoking immunity ratione materiae `in the event of allegations of systematic or widespread torture’.36
Both Lord Brown-Wilkinson and Hope followed Lord Slynn’s analysis,37 their views departing from his only as regards the impact of the Torture Convention on the rule of immunity ratione materiae. Lord Saville concurred in holding that the provisions of the Torture Convention are inconsistent with immunity, which, consequently, is inapplicable to the conduct in question, at least in the reciprocal relations among the parties.38
Lord Hutton found that acts of torture, already outlawed by international law at the time of adoption of the Torture Convention, are not amenable within the functions of a head of state and that `there is no waiver issue as the immunity to which Pinochet is entitled as a former head of state does not arise in relation to, and does not attach to acts of torture’.39
Lord Millett’s opinion is at variance with that of his colleagues. According to Lord Millett, universal jurisdiction existed well before the Torture Convention over crimes committed in violation of jus cogens and which gravity and scale could be regarded `as an attack on the international legal order’.40 Relying on Eichmann and Demjianjuk,41 he said that any state is permitted under international law to assert its jurisdiction over such crimes and that the commission of such crimes in the course of one’s official duties as a responsible officer of the state and in the exercise of his authority as an organ of that state is no bar to the exercise of jurisdiction by a national court. The Torture Convention simply expanded the cover of international crimes to single instances of torture, imposing on states the obligation to exercise their jurisdiction over the crime. According to Lord Millett, recognition of immunity would be `entirely inconsistent with the aims and object of the Convention’.42
Finally, Lord Phillips of Worth Matravers held that crimes of such gravity as to shock the consciousness of mankind cannot be tolerated by the international community and that state immunity ratione materiae cannot coexist with international crimes and the right of states to exercise extraterritorial jurisdiction over them. While doubting that customary international law recognises universal jurisdiction over crimes of international law, Lord Phillips held that on occasion states agree by way of treaty to exercise extraterritorial jurisdiction, which, once established, should not exclude acts done in an official capacity.43
While all the Lords agreed on the need for the Home Secretary to reconsider his decision on allowing extradition proceedings to go ahead, in the light of the new ruling, no one stressed that the UK has the obligation under the Torture Convention either to extradite General Pinochet to Spain or to any other country that has submitted an extradition request or to refer the case to its judicial authorities for prosecution in the UK.44
On 15 April the Home Secretary issued an authority to proceed, thus allowing extradition proceedings to continue with regard to the remaining charges.45
Given the impact that the Pinochet case may have on the future development of the law of jurisdiction and jurisdictional immunities a tentative appraisal of the way in which the House of Lords interpreted the relevant rules of international law pertaining to the case may be useful. While the decision of the House of Lords turns mainly on the application of UK law, the extensive reliance of the Law Lords on international law arguments for construing municipal law makes such an endeavour a legitimate exercise. Indeed, recourse to international law for interpreting domestic law is the first noticeable feature of the case.46
The somewhat convoluted reasoning of some of the individual opinions, the frequent lack of clarity in framing the relevant issues as well as occasional incongruities in construing and presenting arguments should not overshadow the willingness of the Law Lords to decide the case consistently with international law standards.
Secondly, the principle that individuals may be held accountable for acts which are regarded as criminal at international law was clearly asserted. Whether individual responsibility may be enforced before foreign municipal courts was thought to be an issue to be determined in casu, depending on the nature of the crime as well as on relevant international and municipal law provisions concerning enforcement, but the very outcome of the case proves that this may occur.
Yet another important finding to be derived from the House of Lords decisions is that contrary to what the High Court had held, a distinction can be aptly drawn at international law between the wrongful acts of state organs and acts which for their gravity can be regarded as crimes of international law. Different consequences would be attached to the latter under international law, particularly as regards the permissibility of the exercise of extraterritorial jurisdiction over them and the inapplicability of immunity ratione materiae before international tribunals and, under certain circumstances, before foreign municipal courts.
Overall, the frequent reference to such notions as jus cogens, obligations erga omnes and crimes of international law attests to the fact that the emerging notion of an international public order based on the primacy of certain values and common interests is making its way into the legal culture and common practice of municipal courts.
As regards the issue of immunity more specifically, a large majority of the Law Lords agreed that, while current heads of state are immune ratione personae from the jurisdiction of foreign courts, both civil and criminal, a plea of immunity ratione materiae in criminal proceedings may be of no avail to former heads of state depending on the nature of the crime.
While the majority in the first Appellate Committee held that this is so because acts which amount to international crimes can never be qualified as official acts performed by the head of state in the exercise of his functions, most of the Law Lords sitting in the second Committee, confined their analysis to acts of torture. In the view of many of them, immunity would simply be incompatible with the provisions of the Torture Convention, which clearly indicates the official or governmental character of torture as a constituent element of the crime.
Only Lord Phillips went a step further in saying that no rule of international law requires that immunity be granted to individuals who have committed crimes of international law and that the very notion of immunity ratione materiae cannot coexist with the idea that some crimes, in light of their gravity, offend against the very foundation of the international legal system. If one were to follow strictly the reasoning of the majority probably the plea of immunity ratione materiae could only be defeated by those crimes of international law which presuppose or require state action. Arguably, this would include crimes against humanity in a wider sense.
On universal jurisdiction under international law, regardless of any treaty-based regime, Lord Brown-Wilkinson maintained that torture on a large scale is a crime against humanity and attains the status of jus cogens, which, in turn, would justify the taking of jurisdiction by states over acts of torture wherever committed.
Lord Millett went as far as to say that universal jurisdiction exists under customary international law with regard to crimes which have attained the status of jus cogens and are so serious and on such a scale as to be regarded as an attack on the international legal order. Lord Millett added that the increasing number of international tribunals notwithstanding, prosecution of international crimes by national courts `will necessarily remain the norm’. This latter remark paves the way for broaching one of the most important and controversial issues underlying the proceedings against General Pinochet”.
The learned opinions of ICJ judges who presented views differing from the majority verdict
JOINT SEPARATE OPINION OF JUDGES HIGGINS, KOOIJMANS AND BUERGENTHAL
71. As to the matter of immunity, although we agree in general with what has been said in the Court’s Judgement with regard to the specific issue put before it, we nevertheless feel that the approach chosen by the Court has to a certain extent transformed the character of the case before it. By focusing exclusively on the immunity issue, while at the same time bypassing the question of jurisdiction, the impression is created that immunity has value per se, whereas in reality it is an exception to a normative rule which would otherwise apply. It reflects, therefore, an interest which in certain circumstances prevails over an otherwise predominant interest, it is an exception to a jurisdiction which normally can be exercised and it can only be invoked when the latter exists. It represents an interest of its own that must always be balanced, however, against the interest of that norm to which it is an exception.
72. An example is the evolution the concept of State immunity in civil law matters has undergone over time. The original concept of absolute immunity, based on status (par in parem non habet imperium) has been replaced by that of restrictive immunity; within the latter a distinction was made between acta iure imperii and acta iure gestionis but immunity is granted only for the former. The meaning of these two notions is not carved in stone, however; it is subject to a continuously changing interpretation which varies with time reflecting the changing priorities of society.
73. A comparable development can be observed in the field of international criminal law. As we said in paragraph 49, a gradual movement towards bases of jurisdiction other than territoriality can be discerned. This slow but steady shifting to a more extensive application of extraterritorial jurisdiction by States reflects the emergence of values which enjoy an ever-increasing recognition in international society. One such value is the importance of the punishment of the perpetrators of international crimes. In this respect it is necessary to point out once again that this development not only has led to the establishment of new international tribunals and treaty systems in which new competences are attributed to national courts but also to the recognition of other, non-territorially based grounds of national jurisdiction (see paragraph 51 above).
74. The increasing recognition of the importance of ensuring that the perpetrators of serious international crimes do not go unpunished has had its impact on the immunities which high State dignitaries enjoyed under traditional customary law. Now it is generally recognised that in the case of such crimes, which are often committed by high officials who make use of the power invested in the State, immunity is never substantive and thus cannot exculpate the offender from personal criminal responsibility. It has also given rise to a tendency, in the case of international crimes, to grant procedural immunity from jurisdiction only for as long as the suspected State official is in office.
75. These trends reflect a balancing of interests. On the one scale, we find the interest of the community of mankind to prevent and stop impunity for perpetrators of grave crimes against its members; on the other, there is the interest of the community of States to allow them to act freely on the inter-State level without unwarranted interference. A balance therefore must be struck between two sets of functions which are both valued by the international community. Reflecting these concerns, what is regarded as a permissible jurisdiction and what is regarded as the law on immunity are in constant evolution. The weights on the two scales are not set for all perpetuity. Moreover, a trend is discernible that in a world which increasingly rejects impunity for the most repugnant offences, the attribution of responsibility and accountability is becoming firmer, the possibility for the assertion of jurisdiction wider and the availability of immunity as a shield more limited. The law of privileges and immunities, however, retains its importance since immunities are granted to high State officials to guarantee the proper functioning of the network of mutual inter-State relations, which is of paramount importance for a well-ordered and harmonious international system.
DISSENTING OPINION OF JUDGE AL-KHASAWNEH
5. A more fundamental question is whether high State officials are entitled to benefit from immunity even when they are accused of having committed exceptionally grave crimes recognised as such by the international community. In other words, should immunity become de facto impunity for criminal conduct as long as it was in pursuance of State policy? The Judgement sought to circumvent this morally embarrassing issue by recourse to an existing but artificially drawn distinction between immunity as a substantive defence on the one hand and immunity as a procedural defence on the other. The artificiality of this distinction can be gleaned from the ILC commentary to Article 7 of the Draft Code of Crimes against the Peace and Security of Mankind, which states: “The absence of any procedural immunity with respect to prosecution or punishment in appropriate judicial proceedings” – and it should not be forgotten that the draft was intended to apply to national or international courts – “is an essential corollary of the absence of any substantive immunity or defence. It would be paradoxical to prevent an individual from invoking his official position to avoid responsibility for a crime only to permit him to invoke this same consideration to avoid the consequences of this responsibility.”
7. The effective combating of grave crimes has arguably assumed a jus cogens character reflecting recognition by the international community of the vital community interests and values it seeks to protect and enhance. Therefore when this hierarchically higher norm comes into conflict with the rules on immunity, it should prevail. Even if we are to speak in terms of reconciliation of the two sets of rules, this would suggest to me a much more restrictive interpretation of the immunities of high-ranking officials than the Judgement portrays. Incidentally, such a restrictive approach would be much more in consonance with the now firmly-established move towards a restrictive concept of State immunity, a move that has removed the bar regarding the submission of States to jurisdiction of other States often expressed in the maxim par in parem non habet imperium. It is difficult to see why States would accept that their conduct with regard to important areas of their development be open to foreign judicial proceedings but not the criminal conduct of their officials.
8. In conclusion, this Judgement is predicated on two faulty premises.
That a Foreign Minister enjoys absolute immunity from both jurisdiction and enforcement of foreign States as opposed to only functional immunity from enforcement when on official mission, a preposition which is neither supported by precedent, opinio juris, legal logic or the writings of publicists.
That as international law stands today, there are no exceptions to the immunity of high-ranking State officials even when they are accused of grave crimes. While, admittedly, the readiness of States and municipal courts to admit of exceptions is still at a very nebulous stage of development, the situation is much more fluid than the Judgement suggests. I believe that the move towards greater personal accountability represents a higher norm than the rules on immunity and should prevail over the latter. In consequence, I am unable to join the majority view.
DISSENTING OPINION OF JUDGE VAN DEN WYNGAERT
I am submitting all of Judge Van Den Wyngaert’s dissenting opinion in support of my application. It is too long to include in the text of this submission, so I am submitting it as a separate document. But I will detail below excerpts setting out some of his key arguments against state immunity for crimes against humanity, including torture.
Key arguments:
Summary
Crimes against humanity are an exception to the rule of sovereign immunity
39. My general conclusion on the question of immunity90 is as follows: the immunity of an incumbent Minister for Foreign Affairs, if any, is not based on customary international law but at most on international comity. It certainly is not “full” or absolute and does not apply to war crimes and crimes against humanity
27. Apart from being wrong in law, the Court is wrong for another reason. The more fundamental problem lies in its general approach that disregards the whole recent movement in modern international criminal law towards recognition of the principle of individual accountability for international core crimes. The Court does not completely ignore this, but it takes an extremely minimalist approach by adopting a very narrow interpretation of the “no immunity clauses” in international instruments.
Yet, there are many codifications of this principle in various sources of law, including the Nuremberg Principles 46 and Article IV of the Genocide Convention 47. In addition, there are several United Nations resolutions 48 and reports 49 on the subject of international accountability for war crimes and crimes against humanity.
In legal doctrine, there is a plethora of recent scholarly writings on the subject 50. Major scholarly organisations, including the International Law Association 51 and the Institut de droit international have adopted resolutions52 and newly established think tanks, such as the drafters of the “Princeton principles”53 and of the “Cairo principles”54 have made
statements on the issue. Advocacy organisations, such as Amnesty International55, Avocats sans Fronti*res56, Human Rights Watch, The International Federation of Human Rights Leagues (FIDH) and the International Commission of Jurists57, have taken clear positions on the subject of international accountability58. This may be seen as the opinion of civil society, an opinion that cannot be completely discounted in the formation of customary international law today. In several cases, civil society organisations have set in motion a process that ripened into international conventions59. Well-known examples are the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity60, which can be traced back to efforts of the International Association of Penal law, the 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, probably triggered by Amnesty International’s Campaign against Torture, the 1997 Treaty banning Landmines61, to which the International Campaign to Ban Landmines gave a considerable impetus62 and the 1998 Statute for the International Criminal Court, which was promoted by a coalition of non-governmental organisations.
Summary Crimes against humanity are now considered customary international law crimes and/or ius cogens crimes and have a higher status than they were accorded by the ICJ. Consequently, had the ICJ balanced the relative status of such crimes against the rules of immunity they would have found that the former outweighed the latter.
28. By elevating the former rules to the level of customary international law in the first part of its reasoning, and finding that the latter have failed to reach the same status in the second part of its reasoning, the Court does not need to give further consideration to the status of the principle of international accountability under international law. As a result, the Court does not further examine the status of the principle of international accountability. Other courts, for example the House of Lords in the Pinochet case63 and the European Court of Human Rights in the Al-Adsani case64, have given more thought and consideration to the balancing of the relative normative status of international ius cogens crimes and immunities.
Questions concerning international accountability for war crimes and crimes against humanity and that were not addressed by the International Court of Justice include the following. Can international accountability for such crimes be considered to be a general principle of law in the sense of Article 38 of the Court’s Statute? Should the Court, in reaching its conclusion that there is no international crimes exception to immunities under international law, not have given more consideration to the factor that war crimes and crimes against humanity have, by many, been considered to be customary international law crimes65? Should it not have considered the proposition of writers who suggest that war crimes and crimes against humanity are ius cogens crimes66, which, if it were correct, would only enhance the contrast between the status of the rules punishing these crimes and the rules protecting suspects on the ground of immunities for incumbent Foreign Ministers, which are probably not part of ius cogens67.
Summary
The ICJ erred when it drew a distinction between immunity as a procedural defence
and substantive defence. It is paradoxical to allow immunity substantially and not procedurally.
29. The distinction between jurisdictional immunity and criminal responsibility of course exists in all legal systems in the world, but is not an argument in support of the proposition that incumbent Foreign Ministers cannot be subject to the jurisdiction of other States when they are suspected of war crimes and crimes against humanity. There are a host of sources, including the 1948 Genocide Convention69, the 1996 International Law Commission’s Draft Code of Crimes against the Peace and Security of Mankind70, the Statutes of the ad hoc international criminal tribunals71 and the Rome Statute for an International Criminal Court72. All these sources confirm the proposition contained in the Principle 3 of the Nuremberg principles73 which states: “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”.
30. The Congo argued that these sources only address substantive immunities, not procedural immunities and that therefore they offer no exception to the principle that incumbent Foreign Ministers are immune from the jurisdiction of other States. Although some authorities seem to support this view74, most authorities do not mention the distinction at all and even reject it.
32. Article 7 of the International Law Commission’s 1996 Draft Code of Crimes against the Peace and Security of Mankind77, which is intended to apply to both national and international criminal courts, only confirms this interpretation. In its Commentary to this Article, the International Law Commission states:
“The absence of any procedural immunity with respect to prosecution or punishment in appropriate judicial proceedings is an essential corollary of the absence of any substantive immunity or defence. It would be paradoxical to prevent an individual from invoking his official position to avoid responsibility for a crime only to permit him to invoke this same consideration to avoid the consequences of this responsibility.”78
33. In adopting the view that the non-impunity clauses in the relevant international instruments only address substantive, not procedural immunities, the International Court of Justice has adopted a purely doctrinal proposition, which is not based on customary or conventional international law or on national practice and which is not supported by a
substantial part of legal doctrine. It is particularly unfortunate that the International Court of Justice adopts this position without giving reasons.
Summary
The important issue is not substantive or procedural immunity but one of individual versus state responsibility. Crimes against humanity are attributable to individuals.
31. Principle 3 of the Nuremberg principles (and the subsequent codifications of this principle), in addition to addressing the issue of (procedural or substantive) immunities, deals with the attribution of criminal acts to individuals. International crimes are indeed not committed by abstract entities, but by individuals who, in many cases, may act on behalf of the State75. Sir Arthur Watts very pertinently writes:
“States are artificial legal persons: they can only act through the institutions and agencies of the State, which means, ultimately, through its officials and other individuals acting on behalf of the State. For international conduct which is so serious as to be tainted with criminality to be regarded as attributable only to the impersonal State and not to the individuals who ordered or perpetrated it is both unrealistic and offensive to common notions of justice.”76
At the heart of Principle 3 is the debate about individual versus State responsibility, not the discussion about the procedural or substantive nature of the protection for government officials. This can only mean that, where international crimes such as war crimes and crimes against humanity are concerned, immunity cannot block investigations or prosecutions to such crimes, regardless of whether such proceedings are brought before national or before international courts.
Summary International law permits universal jurisdiction for crimes against humanity. In case of torture there is specific conventional support from the 1984 UNCAT
59. International law clearly permits universal jurisdiction for war crimes and crimes against humanity. For both crimes, permission under international law exists. For crimes against humanity, there is no clear treaty provision on the subject but it is accepted that, at least in the case of genocide, States are entitled to assert extraterritorial jurisdiction127. In the case of war crimes, however, there is specific conventional international law in support of the proposition that States are entitled to assert jurisdiction over acts committed abroad: the relevant provision is Article 146 of the IVth Geneva Convention128, which lays down the principle aut dedere aut judicare for war crimes committed against civilians 129.
From the perspective of the drafting history of international criminal law conventions, this is probably one of the first codifications of this principle, which, in legal doctrine, goes back at least to Hugo Grotius but has probably much older roots130. However, it had not been codified in conventional international law until 1949. There are older Conventions such as the 1926 Slavery Convention131 or the 1929 Convention on Counterfeiting132, which require States to lay down rules on jurisdiction but which do not provide an aut dedere aut judicare obligation. The 1949 Conventions are probably the first to lay down this principle in an article that is meant to cover both jurisdiction and prosecution.
Subsequent Conventions have refined this way of drafting and have laid down distinctive provisions on jurisdiction on the one hand and on prosecution (aut dedere aut judicare) on the other. Examples are the 1970 Convention for the Suppression of Unlawful Seizure of Aircraft (Arts. 4 and 7 respectively)133 and the 1984 Convention against Torture (Arts. 5 and 7 respectively)134.
Summary:
States are able to claim universal jurisdiction where crimes against humanity are involved
51. It follows from the “Lotus” case that a State has the right to provide extraterritorial jurisdiction on its territory unless there is a prohibition under international law. I believe that there is no prohibition under international law to enact legislation allowing it to investigate and prosecute war crimes and crimes against humanity committed abroad.
It has often been argued, not without reason, that the “Lotus” test is too liberal and that, given the growing complexity of contemporary international intercourse, a more restrictive approach should be adopted today107. In the Nuclear Weapons case, there were two groups of States each giving a different interpretation of “Lotus” on this point108 and President Bedjaoui, in his declaration, expressed hesitations about “Lotus”109. Even under the more restrictive view, Belgian legislation stands. There is ample evidence in support of the proposition that international law clearly permits States to provide extraterritorial jurisdiction for such crimes.
I will give reasons for both propositions in the next paragraphs. I believe that (a) international law does not prohibit universal jurisdiction for war crimes and crimes against humanity (b) clearly permits it.
End of Judge Van Den Wyngaert’s dissenting opinion.
In conclusion
Let me reiterate my earlier opinion concerning the ICJ judgement of February 2002:
This ruling cannot be considered the final definitive word on state immunity; no more so than the decisions of the US courts to uphold the legality of racial segregation in the southern states prior to the 1950s and 60s.
The ICJ’s judgement is an interpretation of international jurisprudence; an interpretation that is open to dispute and rejection by this court. It has already been questioned by some of the judges who heard the case.
The question of whether or not Heads of State have immunity from prosecution, and to what degree and in what circumstances, is an area of legal contention and evolution. It is a point of law that is in a process of debate and development, as evidenced by the creation of the International Criminal Court, which has extended the legal accountability of Heads of State for crimes against humanity, including torture.
The ICJ erred in its decision of February 2002, as evidenced by the cited dissenting opinions of several learned ICJ judges who heard the original case; most notably Judge Van Den Wyngaert. The ICJ ruling should therefore be open to challenge and reconsideration by this court. I ask the court to accept my application.
Thank you.
May justice prevail.
May the victims of torture in Zimbabwe be granted redress for their suffering.
Yours sincerely,
Peter Tatchell