Is Charles Taylor entitled to immunity before the SCSL?

Every month approximately, TRIAL will comment on a video concerning international justice or current news on international humanitarian law or human rights. This month's video is on the question of heads of state's immunities and international tribunals, through Charles Taylor case.

Charles Taylor’s trial before the Special Court for Sierra Leone (SCSL), which started on 4 June 2007, provides an opportunity to discuss the issue of immunity for heads of State. According to international law, it is generally admitted that heads of State and government, as well as foreign ministers, are immune from criminal prosecution by courts of third States.

This immunity is considered to be absolute and is rooted in customary and conventional international law, under which it was originally granted to diplomats. In the international legal order, immunity plays a major role since it guarantees the principle of sovereign equality of States, by conferring immunity on their major representatives such as the heads of State and government and the minister of foreign affairs. It also allows diplomats to carry out their duties effectively, without pressure or harassment. From this perspective, prosecuting a foreign head of State before a national court amounts to challenging that State’s sovereignty by virtue of the principle par in parem imperium non habet (an equal cannot judge an equal). Disregarding the immunity accorded to major State representatives as recognised under international law would therefore be contrary to such international law.

However, over the last few years, a view has emerged that such immunity should be disallowed when international crimes (war crimes, crimes against humanity, genocide, and the crime of aggression) are committed. The most fervent advocate of this view is Judge Van den Wijngaert, as revealed in her dissenting opinion in the Arrest Warrant case. In this particular case, an arrest warrant had been issued by the Belgian authorities against the acting foreign minister of the Democratic Republic of Congo, pursuant to the Belgian universal jurisdiction law of 10 February 1999. In its 14 February 2002 Judgement, the International Court of Justice did not admit the existence of a rule of customary international law providing for exceptions to the principle of absolute immunity for ministers of foreign affairs suspected of having committed international crimes. Nonetheless, it cannot be excluded that such a rule might find its application in the future.

With this in mind therefore, it could be concluded that Charles Taylor is legally entitled to invoke his immunity as Liberia’s former head of State, between 1997 and 2003, for acts accomplished in the exercise of his functions, providing that it is established that the charges laid against him concern acts that he committed as head of State, and not in his private capacity. However, any admission of immunity for Charles Taylor before the SCSL would amount to a disregard of fundamental legal principles. The SCSL is an international jurisdiction, and the principle of immunity can only be invoked before the courts of third States. Since the SCSL is not a court of such a third State, its international character justifies the conclusion that Charles Taylor cannot invoke immunity. In other words, no rule of international law stands in the way of Liberia’s former president being tried by the SCSL, as its Appeals Chamber concluded in its decision of 31 May 2004.

The same argument was used by the International Military Tribunal in order to try the former leaders of the Axis powers and by the International Criminal Court for the former Yugoslavia (ICTY) in order to start proceedings against Slobodan Milosevic, Serbia’s former head of State.

Nevertheless, how does one ascertain the international character of a jurisdiction? How can one be sure that a tribunal is genuinely international, so as to rule out the potential for immunity being invoked? To do so, it is necessary to examine how any such tribunal was created. The SCSL was established by an agreement between the Secretary General of the United Nations (UN) and the government of Sierra Leone, signed on 16 January 2002 following a mandate from the UN Security Council under its resolution 1315 of 15 August 2000. This resolution clearly demonstrates that there is no ambiguity as to the Security Council’s resolve to reject immunity as a defence before the newly created institution. Indeed, the resolution recommends that the special court should have jurisdiction " over persons who bear the greatest responsibility, (…) including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone ".

The SCSL Statute, which was annexed to the agreement concluded between the Secretary General and the government of Sierra Leone, provides in Article 6§2 that " the official position of any accused persons, whether as Head of State or Government or as a responsible government official, shall not relieve such person of criminal responsibility nor mitigate punishment ". This article is almost identical to Article 7 of the Nuremberg Tribunal Statute, Article 7§2 of the ICTY Statute and Article 6§2 of the Statute of the International Criminal Tribunal for Rwanda (ICTR).

In conclusion, no argument founded on a potential right to immunity stands in the way of Charles Taylor having to answer before the SCSL for the eleven counts of crimes against humanity and violations of international humanitarian law that are held against him.

Bibliography:

In French

CASSESE, A., " Peut-on poursuivre des hauts dirigeants des Etats pour des crimes internationaux ? À propos de l’affaire Congo c. Belgique (C.I.J) ", Revue de science criminelle et de droit pénal comparé, vol. 3, 2002, pp. 479-500.

DOMINICE, Ch., " Quelques observations sur l’immunité de juridiction pénale de l’ancien chef d’Etat ", R.G.D.I.P., 1999-2, pp. 297-302.

VERHOEVEN, J., " Les immunités des organes des sujets du droit international ", in Le droit international des immunités : contestation ou consolidation ?, éd. Larcier, Bruxelles, 2004, p. 61 suiv.

In English

BASSIOUNI, Ch., Introduction to International Criminal Law, Transnational Publ. Inc, New York, 2003, pp. 64-89 ; 712-715.

CASSESE, A., " Immunities ", in International Criminal Law, Oxford University Press, 2003, pp. 264-274.

SIMBEYE, Y., Immunity and International Criminal Law, Ashgate, Aldrshot, 2004