December 14, 2011 § Leave a comment
An exploration of the lessons learned from Al Bashir and the Sudan concerning immunity and liability of former heads of state in the light of the pending prosecution of Laurent Gbagbo.
It was reported last month that ousted president of the Côte d’Ivoire Laurent Gbagbo was being held in custody and would be prosecuted before the international criminal court (ICC) on four counts of crimes against humanity allegedly committed between November 2010 and May of this year. The acts in question include murder, rape and other inhuman acts performed by pro-Gbagbo supporters following a contentious election in which Alassane Ouattara was eventually recognized as victor. In December of 2010 the Ivorian Constitutional Council initially named Gbagbo as president, despite the recognition by the electoral commission, the EU, US and UN of Ouattara’s victory. The refusal of Gbagbo to surrender power resulted in the extension of sanctions upon Gbagbo and his followers as well as the deployment of UN troops to aid and protect Ouattara, to whom the African Union confirmed legitimacy in March of this year. The following month Gbagbo’s palace was attacked by French helicopters under the auspices of the UN, resulting in his arrest.
Should the pre-trial chamber confirm the charges against him, Gbagbo will be the first former head of state to be tried at the ICC. The Guardian this week reported the stipulation by his arrest warrant that “there are reasonable grounds to believe that a plan existed between Mr Gbagbo and his inner circle [his co-perpetrators]” and that according to the prosecution “there is a sufficient basis to conclude that the pro-Gbagbo forces that put the policy into effect did so by almost automatic compliance with the orders they received.” (It should be noted that calls have been made by non-governmental organizations such as Human Rights Watch to investigate abuses on both sides if a just outcome is to be secured.)
In considering the arrest of Gbagbo I was reminded of the numerous concerns, many in respect of legal immunity, which arose from the issue of an arrest warrant for President Al Bashir of Sudan concerning a ‘counter-insurgency’ campaign that included an unlawful attack against a civilian population in Darfur. The ICC pre-trial chamber issued its first arrest warrant for Al Bashir in March 2009, labelling him an ‘indirect co-perpetrator’ of war crimes and crimes against humanity which raised several key questions regarding the immunity of serving state officials. There is scope under customary international law for serving heads of state to benefit from immunity from criminal jurisdiction of foreign states, as demonstrated by the ICJ in DRC v Belgium (Arrest Warrant Case). Despite indications in the jurisprudence of international tribunals such as the Special Court of Sierra Leone that heads of states may be prosecuted before international courts and tribunals where such forums have jurisdiction, in the cases considered thus far, such as those of Charles Taylor and Slobodan Milosevic, custody and trial proceedings have only been achieved after the head of state was removed from power. Article 27(1) of the Rome Statute seeks to impose jurisdiction regardless of official capacity, but while Sudan is a signatory of the Rome Statute, it has not yet provided ratification. The same is true of Côte d’Ivoire.
In the case of Gbagbo, it would appear any issues regarding the application of the Rome Statute have been avoided. In the ICC documentation authorizing an investigation in Côte d’Ivoire, it is mentioned that on April 18th 2003 the State lodged a declaration accepting the jurisdiction of the ICC in its territory since the events of 19 September 2002 “for an unspecified period of time”. In a letter received on 14th December 2010, the Prosecutor and Registrar of the ICC received a letter from Ouattara in his capacity of newly elected president confirming the continuing validity of the declaration.
In the case of the Sudan, the position is different and confounded by the fact that Al Bashir remains at large as serving head of state. Manisuli Ssenyonjo’s article on this subject provides fascinating analysis of the chamber’s attempts to demonstrate an implicit adoption of Article 27 through the Security Council’s referral of the Sudanese case to the ICC via Resolution 1593 (See in M. A. Baderin & M. Ssenyonjo, “International Human Rights Law: Six Decades after the UDHR and Beyond”, Ashgate 2010, pages 445-75). In spite of this potential justification, it is likely this issue will remain a challenge, should the case reach trial stage.
Despite this differentiation, it is likely that issues regarding indirect perpetration highlighted in the Al Bashir case – the first prosecution before an international tribunal to be based upon this concept – will be considered in respect of Gbagbo. Both indirect perpetration and indirect co-perpetration are recognised in Article 25(3)(a) of the Rome Statute, which provides that individuals may commit crimes “whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible.” The chamber in Al Bashir considered the recent cases of Lubanga and Katanga & Ngudjolo in defining these elements. In respect of indirect perpetration, it was recognized that a leader must “use his control over the apparatus to execute crimes… [mobilising] his authority and power within the organization to secure compliance with his orders.” In respect of indirect co-perpetration it was recognized that the carrying out of essential individual contributions to the common plan through another person was necessary. (Further analysis of the development of this concept has been made by Jessberger and Geneuss.)
With regard to Al Bashir, the chamber considered there to be reasonable grounds to believe that as president of the Sudan, Al Bashir played an essential role in coordinating the design and implementation of core components of a common plan which included an unlawful attack on a civilian population. As such, the chamber found there were reasonable grounds to believe that Al Bashir was criminally responsible as an indirect perpetrator or indirect co-perpetrator for offences similar to those alleged against Gbagbo.
The matters considered by the chamber in respect of Al Bashir who remains at large may find their first practical application in the case of Gbagbo. Ssenyonjo states in his analysis of the Al Bashir case that pursuing liability through indirect (co)perpetration represents the “best way to ensure accountability of such leaders” and as such, the future application in the respect of Gbagbo could prove to be an important step in securing recognition of the international criminal responsibility of senior state officials.
– Lee McConnell