SARChI DIALOGUE SERIES: “The arrest and prosecution of Heads of State for International Crimes” [7 August 2023]

SARChI DIALOGUE SERIES

TOPIC:

“The arrest and prosecution of Heads of State for International Crimes”

Professor Xavier Philippe - Professor of Public Law at the Law Faculty of the University Paris 1 Pantheon- Sorbonne (Sorbonne School of Law) and Extraordinary Professor at the University of the Western Cape

Can Heads of State be arrested and transferred to the International Criminal Court in the Hague or any International Criminal Tribunal when accused or indicted for international crimes? This question should prima facie receive a positive answer of no; one cannot receive immunity for having committed international crimes (the crime of aggression, war crimes, crimes against humanity and the crime of genocide). This logical answer is, however, highly debated as this core principle under international criminal law directly conflicts with other, older principles recognised under general public international law, namely the principle of sovereign immunity of States officials.

Pinochet in Chile, Omar El Bashir in Sudan, Ghaddafi in Libya, Duvalier and Aristide in Haiti… There are more than 65 Heads of State that have been officially prosecuted… Far less have been judged and sentenced.

This seminar would offer an opportunity to first examine the existing rules governing the issue under international law, and secondly to analyse the existing conflicts between these rules and the contradictory attitude of States accepting the jurisdiction of international criminal tribunals under treaty law but refusing to surrender some heads of former heads of states when accused of such crimes.

These issues are very pertinent in light of the recent events surrounding President Putin of Russia. On 17 March 2023, following an investigation of war crimes, crimes against humanity and genocide, the International Criminal Court (ICC) issued arrest warrants for Vladimir Putin and Maria Lvova-Belova, Russian Commissioner for Children's Rights, alleging responsibility for the war crime of unlawful deportation and transfer of children during the Russian invasion of Ukraine. The 123 member states of the ICC are obliged to execute the arrest warrants and detain and transfer Putin and Lvova-Belova if either sets foot on their territory.

Not only is South Africa a member state of the ICC, Dullah Omar, then Minister of Justice, participated in the drafting of the Rome Statute. South African then also domesticated the Rome Treaty. Already when Omar Al-Bashir, as president of Sudan, visited South Africa for an African Union Summit in 2016, the Supreme Court of Appeal held that the failure of the South African government to execute the ICC arrest warrant for crimes against humanity and genocide was unlawful and a disgrace.

The prospect of arresting President Putin when attending the upcoming BRICS Summit on 22 to 24 August in Johannesburg, has been avoided by the Russian Foreign Minister deputising for Putin. The South African government has indicated that it will seek to amend the domestic law to allow for the immunity of Heads of State.

Professor Phillipe holds a State Doctorate in Law (1989) and was appointed Professor in 1990 at the University of La Réunion (Indian Ocean) after having been lecturer and Senior Lecturer at the University of Aix-Marseilles (1985-1989). From 1995 until 2001, he has been seconded to South Africa during the transition period as legal expert and academic at the University of the Western Cape. From 2004 until 2007, he was seconded to the International Committee of the Red Cross as Regional Legal Advisor for the countries of the former Soviet Union (Moscow delegation). From 2008 to 2018, he was Professor at the University of Aix-Marseille (AMU) and headed the Louis Favoreu Institute. His main fields of expertise are Comparative Constitutional Law (drafting processes), Human Rights, International Humanitarian Law, International Criminal Law and Transitional Justice. He is also deeply involved in constitution-rebuilding processes in post-conflict or post-crises situations, especially in Tunisia and Myanmar, where he participated in national dialogues and constitution-rebuilding processes.

Register here to participate online via zoom