One of the dissemination events within the project research group “Supranational Interpretation of the Rule of Law” under the umbrella of the Central European Academy was held on Monday, 28 August 2023, starting in the late afternoon at the Pan European University, Faculty of Law. The presentation was given during the 4th Carpathian Basin Comparative Law Conference, organised by the Central European Academy, Ferenc Mádl Institute of Comparative Law, Pan European University, and the University of Miskolc. The proceedings of the conference were divided into two panels: EU Law and Public Law. My presentation was a part of Panel 2, i.e., Public Law. The lecture itself was given in-person and video recorded at the same time.
As for the participants, members of all the institutions mentioned in the previous paragraph were present, including PhD students, junior or senior researchers, assistant/associate/full professors, some of them with active presentations, some of them as passive participants. It is highly appreciated that all of them were lawyers, so – compared to the previous dissemination event – I could focus on legal aspects and not manoeuvre around (not being sure whether the participants understand, e.g., basic legal concepts).
As for the lecture as a dissemination event within the project upon Supranational Interpretation of the Rule of Law, I chose to present the discussed topic of the Arrest Warrant for Putin issued by the International Criminal Court since I have found some discrepancies there in relation to the rule of law.
The first part of my lecture was devoted to some selected aspects of the rule of law. I´ve chosen those that I find as having been challenged by the examined arrest warrant for Putin, namely supremacy of law and accountability to the law, the issue of legal certainty (i.e., avoidance of arbitrariness) and equality before the law. My plan was to point out by a short analysis of the arrest warrant (of some of its claims built on previous ICC case law) that these aspects of the rule of law were not followed.
Before getting to the ICC case law, I first explained the special position of a head of state. I did it by presenting one decision of the International Court of Justice that decided in the Arrest Warrant Case between the Democratic Republic of Congo and Belgium in April 2000 that because of the function of a head of state, a minister of foreign affairs, and a prime minister, have functional immunity at the international level. At the same time, it said in this very well-reasoned judgment that there are 4 possibilities for prosecution of these three types of persons. The first is the prosecution by their own State, i.e., the State of nationality of the concrete high official since international immunity of an official of a State is applicable only in relation to another State (based on a principle in Latin par in parem non habet imperium, in English equal above equal does not rule). Another possibility is a waiver of immunity of that high official by their own State since it is a State where the immunity of an official of a State originates, not the person themselves. The third possibility is to prosecute the high official when they are not in the office anymore (under the condition that the issue concerns acts realised in a private capacity). Finally, there is a possibility of prosecution by certain international criminal courts in case they have jurisdiction. It was this last possibility that I wanted to present in more detail since I planned to point out why I think that the International Criminal Court did not have jurisdiction to issue an arrest warrant in the case of Putin. There are several reasons for this submission; I´ve tried to at least schematically summarise them.
First, from a general point of view, the International Criminal Court was established by the Rome Statute, which is an international treaty. It means that it is legally binding only for the State Parties. As for the third States, according to the Vienna Convention on the Law of the Treaties, an international treaty might be legally binding for them only if they accept legal obligations arising from it in writing. The other option is the situation when an international legal obligation arising from a treaty evolves into an international custom (which will be discussed later). To make it complete, the last one (not mentioned during the presentation because of the time constraints) is a possibility mentioned in Article 75 of the Vienna Convention on the Law of Treaties concerning international treaties adopted in relation to an aggressor.
Moreover, from the point of view of immunities, there are two very important articles adopted within the Rome Statute itself. The first one is its Article 27, which establishes the irrelevance of official capacity. The second one is its Article 98(1), which regulates cooperation between the ICC and State Parties with respect to waiver of immunity and consent to surrender.
To make it clear, I´d like to point out that according to these articles, the Rome Statute shall apply equally to all persons without any distinction based on official capacity. In particular, it means that official capacity as a head of state or government, a member of a government or parliament, an elected representative, or a government official shall in no case exempt a person from criminal responsibility under the Rome Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. Moreover, according to the second paragraph, immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the ICC from exercising its jurisdiction over such a person. Finally, it is established that the ICC may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.
Despite these clear provisions, there has already been a case at the ICC that pointed out that nothing is really clear. That case had to deal with a situation comparable to the Putin case, namely Al-Bashir case. Al-Bashir was a head of state that was not a party to the ICC at the time when the ICC issued its arrest warrant against him. There were several decisions adopted in this case (different decisions and different reasonings why the arrest warrant was or was not in accordance with international law and its framework also regarding the immunity of a head of state).
As for the lecture, in relation to the rule of law, I´ve chosen only two aspects of the final decision concerning the Al-Bashir case (Appeals Chamber decision from 6 May 2019). First, I pointed out that the Appeals Chamber considered Article 27 of the Rome Statute having achieved the status of an international custom. Second, the Appeals Chamber emphasised that although in the inter-state relations, the principle, par in parem non habet imperium (equal above equal does not rule), is applied, it is not so in case of an international judicial body.
Nevertheless, as for the first aspect that Article 27 of the Rome Statute has already achieved the status of an international custom, I called attention to the fact that Article 27 of the Rome Statute has two paragraphs. The first one regulates the issue of international responsibility of high officials, and indeed, there has already been practice confirming that the irrelevance of official capacity has already achieved the status of an international custom. I mentioned, e.g., the Nuremberg Trial and ad hoc tribunals – all their establishing documents have set up that there is no exemption from international criminal responsibility of any high official of any status. This is a uniform practice supported by opinion iuris of States. However, as for the second paragraph that regulates prosecutablity, there is no such uniform practice. Situations that I have mentioned also in relation to responsibility were also mentioned in relation to prosecutability; however, as for prosecutability, they are of different characteristics. It is true that the Nuremberg tribunal was established by the Nuremberg Charter, i.e., an international treaty, nevertheless, it was a treaty adopted at the end of WWII (see the above-mentioned Article 75 of the Vienna Convention of the Law of Treaties) and therefore cooperation among States and prosecutability of perpetrators was built on different grounds. As for the ad hoc tribunals, they were established by Security Council resolutions, which means again that cooperation among States and prosecutability of perpetrators was achieved by different means. Therefore, no international custom might be declared in this respect.
Second, the issue of the principle, par in parem non habet imperium (equal above equal does not rule) and its application in case of an international judicial body. It has been truly so that this principle has originated in the framework of interstate relations. However, it does not mean that an international judicial body that has been established by an international treaty might function in a way that does not respect another important principle that is applicable in all the legal relations, namely nemo plus iuris ad alium transferre potest quam ipse habet (No one can transfer more rights to another than he has). It has not only been Roman law that recognises this principle, according to the theory of law, it is a generally accepted principle to be applied in all the areas of law and its application. Otherwise, for example in case of a multilateral treaty between V4 countries, a judicial body could be established to be authorised to prosecute a head of state of whichever third State. It has been submitted that the ICC is in a very specific position and that it has acquired universal recognition. Nevertheless, it was established by an international treaty and must defer to all the rules resulting from it.
To follow up the rule of law in this particular case, however, as if not supremacy of law and accountability to the law was applied but political order. Moreover, because of different professional backgrounds (of criminal and international law ICC judges) legal certainty in relation to the application of the immunity at the international level was probably not properly perceived when the arrest warrant as a criminal law application base was issued. Furthermore, as for equality before the law, no one objects that there is a very particular situation now in Ukraine since one State started an aggressive war against another: there has been something happening now that is a manifest violation of the UN Charter, something that after WWII was expected to happen again. That might be one of the reasons why States had problems to adopt the definition of the crime of aggression during the Rome Conference in 1998 and to adopt more flexible triggering mechanism in New York in 2016 (after the Kampala definition of aggression was adopted in 2010). States did not expect such an obvious violation of the prohibition of the use of force rule. However, States could/should have adopted all those rules in a way that would have allowed the triggering of prosecution of the crime of aggression in relation to any State Party so that they would have respected equality before the law (at least among the State Parties of the Rome Statute).
Finally, to conclude the lecture, the memory of Nuremberg was presented to point out that even before Nuremberg, there were many proposals on what to do with Nazi top officials, including their execution without trial. However, it was pointed out that only by respecting the rule of law, justice & peace might be achieved.
