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Return to Earlier Part of Chapter
3. Head-of-State Immunity
(a) Overview
The issue of "head-of-state" immunity - AND IF such immunity exists in Canadian law - has stirred recent public interest in light of the American "war on terror" and the associated invasion of Iraq - although it has seen recent legal activity in relation to past heads-of-state such as Noriega of Panama, Pinochet of Chile, Qaddafi of Libya, and Hussein of Iraq - to name only a few.
As my review of diplomatic immunity above concludes, there is no basis for attributing any type of class immunity to heads-of-state under the "diplomatic" immunities recognized in Canadian statute law - such immunity being closely tied to diplomatic, consular and closely-related functions and functionaries. Therefore any legal basis for a head-of-state immunity must be found elsewhere.
The legal issue is a much-vexed one involving (as seems always to be the case with international law) a struggle between "customary international law" (the "common law" of the international scene), treaty law and local state law (here primarily the Criminal Code of Canada). When prosecutions are conducted within local states then it is the latter of these which will necessarily prevail (being the law most binding on the court involved), assuming that it addresses the issue at all.
It is to an examination of each of these separate sources of law and their interaction that the balance of this discussion is devoted. Unfortunately, no clear conclusion is reached though I lean towards the conclusion that there is no principle of "head-of-state" immunity in Canadian law. However, as the discussion reveals, what is NOT included within codified bodies of law often tells just as much as what is included.
. Canadian Case Note
A private prosecution was initiated in BC alleging that George Bush had committed torture in relation to American conduct in the much-publicized Abu Ghraib prison in Baghdad. The "information" (the document containing criminal allegations which, when endorsed by a justice of the peace, commences a criminal prosecution) was quashed by a provincial court judge on the basis that Bush had "diplomatic immunity", and was further dismissed on judicial review to the BC Supreme Court on separate grounds of "abuse of process". The case is being further appealed to the BC Court of Appeal.
The "diplomatic immunity" issue was not apparently advanced on the judicial review, suggesting that the issue had been more thoroughly considered by the Crown in the interim and found wanting as it bears on heads-of-state (either that or the Crown preferred not to have that issue considered where it is otherwise unnecessary to do so). Also advanced at the judicial review level was the much stronger position that no prosecution may be commenced under CAHWCA without the personal written consent of the federal Attorney-General (see Ch.8, s.3: "Procedures and Defences: Attorney-General Consent").
(b) Customary International Law
. Overview
As noted above, perhaps the best way to think of "customary international law" is as the "common law" of the international scene. That is, the body of uncodified law drawn primarily from past judicial pronouncements on the issue at hand. If it differs at all from the common law it is by being significantly more politically-influenced than is comfortable for most "local law" practitioners.
This interpretive role of "customary international
law" has been expressly adopted into Canadian law in the Crimes Against Humanity and War Crimes Act [CAHWCA], which is the implementing statute of the Rome Statute of the International Criminal Court. The CAHWCA for example, expressly adopts both "customary international law" and "conventional international law" as key interpretive sources in defining the substantive offence of "crime against humanity" (and all the other primary offences). An example of this language is as follows: CAHWCA s.4(3)
"crime against humanity" means murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group and that, at the time and in the place of its commission, constitutes a crime against humanity according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission. The "conventional international law" mentioned here (and considered below) similarly would rely on the text and court precedents of treaties to which Canada is a party to inform its meaning [CAHWCA s.2(1)].
As noted above - and as with the common law's interaction with Canadian statute law - what treaties and local statutes DO NOT say with regard to head-of-state immunity, is often just as telling as what it does say.
. Belgium v Congo (ICJ, 2002)
The most recent and controversial international ruling on the status of head-of-state immunity under customary international law is Belgium v Congo (ICJ, 2002).
This case involved the issuance by Belgium, under a broad local "universal jurisdiction" international crimes statute, of an arrest warrant for the then Congolese (DRC) foreign minister. While the ICJ's role in such a case is not binding on the local Belgian Court, the countries did accede to that jurisdiction - and given the nature and history of the court the ruling is considered significantly authoritative:
Belgium v Congo
The ruling (actually nine separate rulings from amongst 11 judges; in characterizing the ruling I have draw primarily on the court-sponsored "summary" of the case) is generally cited as not only firmly endorsing the proposition of head-of-state immunity in customary international law but as well expanding it to include high ranking officials within a government - AND affirming that there is no exception for "grave crimes" based on customary international law.
The court characterized the immunity as functional (ie. purposively tied to the official functions of the person), temporary (operative ONLY during their period of office) and complete (ie. while operative, it applies to both public and private acts and omissions, and to those committed before the person took on their official capacity).
In making these points, the court drew a distinction between "immunity" and "impunity", clarifying that immunity did not impact on the court's jurisdiction - just its temporary ability to act upon it (a fine and perhaps untenable distinction). Such immunity is lost when the person's country of origin waives it or when the period of office expires.
. Comment
The ruling was controversial amongst those favouring an aggressive prosecution of war criminals and despots everywhere. As my discussion shows, the controversy may be justified in light of the reasoning employed in the decision.
The court starts by stating that "international law" contains a firm principle of state immunity. This position is consistent with what I have termed Canadian "common law" sovereign immunity [see s.3(d) "Canadian Law", below], and applies to heads-of-state and high-ranking political ministers.
It is only when faced with the argument that there is an exception to immunity for "crimes against humanity" and other grave crimes, that it delves forensically into the doctrine of "customary international law": specifically the law and practice of both local states and of free-standing international criminal tribunals (specifically: Nuremberg, Tokyo, Rwanda, Former Yugoslavia and the ICC).
That it finds (in 2002) no authority for this exception in local state law is no surprise given the nascent state of the local prosecution of international crimes (Canada was the first country to pass it's Rome Statute implementating law on 23 October 2000).
Further, that it finds no authority for this proposition in the law of international criminal tribunals is further no surprise since there is no need for them to have such a "grave crimes immunity exception" - because all five of them COMPLETELY ban any form of state or official immunity whatsoever in their own practice. So what need of an "exception" would they have?
The court further hedged itself on this issue of an immunity exception by purporting to be searching for such a principle not in "customary international law" as such but rather: ... it finds that these rules likewise do not enable it to conclude that any such exception exists in customary international law in regard to NATIONAL COURTS [author's emphasis].
Note:
On this point of an exception to immunity for "crimes against humanity" it is worth noting that both the Vienna Convention on Consular Relations [Art 41.1] and Canadian law [Foreign Missions and International Organizations Act, s.2(4)] except those charged with "grave crimes" from normal consular immunity with respect to arrest pending trial. "Grave crimes" are defined in Canada to mean any offence which is punishable by five years or more in prison, which covers all international crimes. As such the ICJ's finding that there is no immunity exception for "grave crimes" is at least inconsistent with Canadian law. Further, one would think that the issue of immunity in a "national court" is a decision FOR that national court. Belgium no doubt did not attorn to the ICJ's jurisdiction for an interpretation of Belgian law (for what else can a "national" principle of customary international law be?).
One would think further that the interpretation of "customary international law" as it applies to proceedings before an international court would - when looking to the precedents established by other international criminal courts - take note that all of those courts reviewed (without exception) completely barred state and official capacity immunity from their doctrine. Of this latter point the court oddly failed to take note.
While much-criticized, the ruling nonetheless remains arguable authority for the existence of a 'government-official immunity' - albeit temporary as the ICJ describes it. As such, the burden of showing exceptions or overrides shifts to treaties and local law. As the Rome Statute [Art 27] is plain that immunity is quite completely abolished, the pertinent question for present
purposes is the state of Canadian law on the issue. As this law expressly adopts both "customary international law" and "conventional international law" as interpretive principles (see immediately below), I will continue that discussion on with the latter topic. +++
(c) "Conventional International Law" and the Rome Statute
This consideration can be brief. If "conventional international law" is to have any meaning it is as the preponderance of precedents established in prior court-creating treaties.
The review of the five most authoritative of these just these cited in the Belgium v Congo case above is then conclusive evidence of just what "conventional international law" say about immunity. It unanimously says that there is none.
While contributing the meaning of "conventional international law" (above), the Rome Statute is clearly of primary importance to the current discussion, being the treaty which the CAHWCA implements.
That said, it is important to understand in any given prosecutorial fact situation that the specifics of treaties are only binding in Canadian law to the extent that they have been "implemented" by Canadian legislation.
However, where a prosecution is being conducted by an international tribunal under the terms of its founding treaty then of course the substantive and procedural law of treaty is directly binding on those proceedings.
As noted above, the Rome Statute plainly and expressly overrides any doctrine of criminal immunity: head-of-state, diplomatic or other: Rome Statute of the International Criminal Court
Article 27
Irrelevance of official capacity
1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, 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 this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.
2. 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 Court from exercising its jurisdiction over such a person. For its part then the Rome Statute speaks firmly against ANY principle of status immunity - be it diplomatic, "head-of-state" or otherwise.
(d) Canadian Law
. Overview
As noted above, in any prosecution for international crimes conducted in a local state, it will be the law of that state - and the interpretation of international law given by that state's judges - that will ultimately govern the case.
The Belgium v Congo case discussed above is a good case-in-point on this theme. While both countries agreed - as a matter of politics - to submit the matter to the International Court of Justice (ICJ) for a ruling, such a ruling was not necessarily dispositive of the issue for Belgian courts. Activists (particularly in light of the questionable reasoning of the court discussed above) resisted and tried to limit the effect of the Congo ruling, and to press other international crime and related prosecutions. These efforts were only ended when the Belgian legislature weakened its broad international crimes legislation in 2003 in response to significant American pressure.
But the point remains, local law is paramount in locally initiated international crime and related prosecutions. For this reason it is essential to consider Canadian law on this point. It is a testament to the political sensitivity (and political ambiguity) on the issue that the task is not a simple one. As will be seen from the following discussion it is more a task of discerning meaning from silence, or from considered neglect.
Below I consider the Canadian legal "evidence" for and against the proposition that Canadian law contains a doctrine of foreign head-of-state (or similar) immunity. Besides common law and international law influences on the issue, the statutory sources I review include the:- State Immunity Act;
- Foreign Missions and International Organizations Act;
- Extradition Act;
- Crimes Against Humanity and War Crimes Act;
- Criminal Code.
As "what isn't said" is such a significant theme in the below analyses, I rely heavily on the statutory interpretation rule designed to drawing meaning from just such silence - or more accurately, selective silence. This is the "implied exclusion" rule.
As stated in Ruth Sullivan's text Driedger on the Construction of Statutes (3rd ed.) (Butterworth's, 1994) this rule (in latin: "expressio unius est exclusion alterius") holds that (emphasis is mine): An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within the ambit of its legislation, it would have referred to that thing expressly. Because of this expectation, the legislature's failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, exclusion is implied. The force of the implication depends on the strength and legitimacy of the expectation of express reference. The better the reason for anticipating express reference to a thing, the more telling the silence of the legislature. . Common Law
There is an old common law principle of state immunity which traces back at least as far as an American case, Schooner Exchange v M'Faddon (1812) 11 U.S. (7 Cranch) 116. This case was quoted by Taschereau J (with approval on the principle by all five sitting members of the court) of the Supreme Court of Canada in Reference re: Exemption of United States Forces from proceedings in Canadian Criminal Courts [1943] SCR 483, a case dealing with the criminal law immunities of foreign troops invited onto Canadian soil (a topic now governed by the federal Visiting Forces Act): One of the leading cases on this subject is that of The Schooner Exchange v. M'Faddon and others (Supreme Court of the United States) [(1912) 7 Cranch, pp. 116 to 147.]. Chief Justice Marshall speaking for the Court said: This full and absolute territorial jurisdiction being alike the attribute of every sovereign, and being incapable of conferring extraterritorial power, would not seem to contemplate foreign sovereigns nor their sovereign rights as its objects. One sovereign being in no respect amenable to another; and being bound by obligations of the highest character not to degrade the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only under an express licence, or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him.
This perfect equality and absolute independence of sovereigns, and this common interest impelling them to mutual intercourse, and an interchange of good offices with each other, have given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction, which has been stated to be the attribute of every. Rand J restates the range of the immunity: The person of a foreign sovereign, or other chief officer of a state, and generally his property are accorded, within another jurisdiction, and under conditions of amity, an absolute immunity from the local law: Reference as to Powers to levy rates on Foreign Legations [[1943] S.C.R. 208.]. Likewise, with qualifications unnecessary for the present purposes to consider, are diplomatic representatives of a foreign state, their staffs and their property used for official purposes, privileged. As to nature of the 'waiver', Duff J clarifies for the majority in the Foreign Legations Reference that it is itself subject to revocation by the host state: The principles governing the immunities of a foreign sovereign and his diplomatic agents and his property do not, of course, limit the legislative authority of the legislature having jurisdiction in the particular matter affected by any immunity claimed, or alleged. .... The general principle is put with great clearness and force in the judgment of Marshall C.J., from which I have quoted so freely. These are his words [Schooner Exchange v. McFaddon, (1812) 7 Cranch 116, at 146.]: Without doubt, the sovereign of the place is capable of destroying this implication. He may claim and exercise jurisdiction either by employing force, or by
subjecting such vessels to the ordinary tribunals. ... "Sovereign immunity" then, at common law, derives from a theory of implicit (and revocable) waiver of jurisdiction by the host state in favour of the visiting sovereign, high-ranking ministers and - to a lesser degree, invited troops. That principle derived from Schooner has been acknowledged and approved in several other Supreme Court of Canada cases:- Saint John et al. v. Fraser-Brace Overseas Corp. [[1958] SCR 263
- Congo v Venne [1971] SCR 997
- Foreign Legations Reference [[1943] SCR 208
. State Immunity Act
The common law has been much superceded (and perhaps abolished) by extensive legislative intrusion into the field.
The federal State Immunity Act sets out a detailed range of civil immunities for "foreign states", which by that statute's definition includes "any sovereign or other head of the foreign state or of any political subdivision of the foreign state while acting as such in a public capacity" [SIA s.2]. Canadian statutory law gets no closer to the issue of foreign head-of-state legal immunity that the State Immunity Act.
The legal structuring the SIA is of particular relevance to the "implied exclusion" rule. The pivotal provision of the Act reads: s.3(1)
Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada. There it is: a broad, across-the-board (ie. civil, administrative AND CRIMINAL) immunity has been expressly countenanced by Canadian legislators and been plainly adopted into Canadian law. By itself this provision is a definitive answer to our question.
Of course, nothing is ever that simple in law, as the last provision of the Act shows: s.18
This Act does not apply to criminal proceedings or proceedings in the nature of criminal proceedings. So here we have the federal legislature expressly considering whether "head(s) of the foreign state") are granted criminal immunity, and plainly opting to exclude that proposition from Canadian law. I submit that one would be hard pressed to find a stronger case for the application of the "implied exclusion" rule than this.
That said, others would argue that s.18 [SIA] - by excluding criminal immunity from statutory influence - simply re-instates the common law as reviewed above.
However that position is hard to maintain given the recent passage of the CAHWCA itself. There can be no more apt situation in which one would expect the issue to be expressly addressed that the adoption of wide-ranging international crimes
legislation.
While part of the implementation of the CAHWCA involved a single "consequential amendment" [CAHWCA s.70] to the State Immunity Act (the FMIOA/SIA paramountcy provision discussed immediately below in the FMIOA discussion [SIA s.16]) it was utterly silent as to any immunity changes to the SIA. Clearly that was the logical and convenient oppourtunity to revisit, amend or repeal s.18 of the State Immunity Act to provide plainly for the criminal immunity of foreign heads-of-state - yet this was not done. As the "implied exclusion" argument could hardly ask for a legislative context of greater poignancy, the CAHWCA passage is strong evidence that the common law of sovereign criminal immunity has been surpassed.
. Foreign Missions and International Organizations Act [FMIOA]
As discussed extensively in s.2: "Diplomatic and Related Immunities and Privileges" (above) the Foreign Missions and International Organizations Act (FMIOA) sets out a detailed statutory regime for persons related to foreign diplomatic missions, consular posts, international organizations and some others in Canada. Included in the FMIOA are articulated schemes extending (and limiting) both civil and criminal immunity to such persons.
While for some reason public debate on the issue of "head-of-state" immunity is sometimes characterized as "diplomatic immunity", it is plain from FMIOA that "diplomatic" immunity is just that: immunity of persons directly involved with diplomatic, consular and similar activities (and to a lesser extent their families) - and no more. Further, the federal Parliament has expressly countenanced the potential for conflict between FMIOA and the State Immunity Act, and proclaimed that in such a case FMIOA prevails [FMIOA s.16]. This emphasizes that the diplomatic and related immunities of FMIOA are a specific sub-set of rules carved out within the larger and broader immunities established by the State Immunity Act. With this principle any argument by implication for extension of diplomatic criminal immunity to heads-of-state is even more tenuous.
As for "implied exclusion", we once again have the legislature granting immunities to foreign citizens, and yet refraining from granting and special criminal "head-of-state" or official immunity.
It must be admitted that the purpose for which FMIOA is written (as a diplomacy-related statute like many others throughout the world), reduces the expectation of "anticipating express reference to a thing" (Sullivan, above) - and thus weakens the "implied exclusion" argument against head-of-state immunity. However, whatever legitimacy there is in the common conflation of diplomatic and head-of-state immunities in turn counters that. On the whole the FMIOA is another piece of legal "evidence" speaking against any unwritten doctrine of head-of-state immunity in Canada.
. Extradition Act
While the Rome Statute has expressly abolished any doctrine of immunity [Art 27], it implicitly recognizes that states from whom they request extradition of may have local immunity provisions which they have to have regard to, and exempts the requested state from compliance absent waiver by the person's home country: Rome Statute
Article 98
Cooperation with respect to waiver of immunity and consent to surrender
1. The Court 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. Superficially, this provision suggests that the Rome Statute "regime" tolerates local immunity provisions, and that the broad Art 27 immunity "abolition" is only meant for ICC purposes.
However this is not the interpretation taken in Canadian law. In consequential amendments contained in the CAHWCA - Canada has interpreted and implemented its Rome Statute duties in this regard in a manner quite consistent with the broad Rome Statute abolition of immunity. Our Extradition Act now applies to persons charged in the ICC with international crimes, and as well provides that no person whom the ICC requests be extradited may avoid extradition solely by a claim of "immunity under common law or by statute" [Extradition Act, s.6.1].
The meaning of Art 89.1 and the Canadian implementation of it can be reconciled when we note that the Rome Statute clearly countenances requests for extradition made both to "states" and to "state-parties". Of the former the ICC can only "request ... co-operation", but the latter are required to comply with extradition requests of the ICC: Rome Statute
Article 89
Surrender of persons to the Court
1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender. Thus Art.89.1 is given consistent meaning as a recognition of the persisting immunity provisions that may remain in states NOT party to the Rome Statute.
In sum then these provisions show that Canada's implementation of the Rome Statute is consistent only with an intention to bind the country to the broad immunity ban contained therein, and as such are good Canadian legislative evidence that the immunity ban provisions of the Rome Statute are implemented into Canadian law. It is trite law that statutory implementation overrides any common law or customary international law interpretations inconsistent with it.
. Crimes Against Humanity and War Crimes Act
General
The immediately preceding discussion of the Extradition Act in fact considered CAHWCA consequential amendments to that Act. Now let us turn to the legal "evidence" of intent on the head-of-state immunity issue contained in the main text of the CAHWCA.
Implementation
The first and most obvious point here is that the purpose of the CAHWCA is to implement the Rome Statute: Preamble
An Act respecting genocide, crimes against humanity and war crimes and to implement the Rome Statute of the International Criminal Court, and to make consequential amendments to other Acts (my emphasis) To the extent that this is done, also implemented into Canadian law is Article 27 of the Rome Statute of the International Criminal Court (quoted above under "Conventional International Law") which expressly overrides all state or official criminal immunities.
The question of course remains as to how (and how far) CAHWCA achieves that proclaimed goal. Is a preamble statement of purpose adequate to implement a treaty in its entirety - or are more express and articulated proclamations required?
An appropriate comparison on this issue is the manner in which FMIOA "implemented" the two Vienna Conventions discussed on s.2 above. The approach taken there was quite specific and articulated as to which provisions of the Conventions were given force in Canada: FMIOA
s.3
Articles 1, 22 to 24 and 27 to 40 of the Vienna Convention on Diplomatic Relations, and Articles 1, 5, 15, 17, 31 to 33, 35, 39 and 40, paragraphs 1 and 2 of Article 41, Articles 43 to 45 and 48 to 54, paragraphs 2 and 3 of Article 55, paragraph 2 of Article 57, paragraphs 1 to 3 of Article 58, Articles 59 to 62, 64, 66 and 67, paragraphs 1, 2 and 4 of Article 70 and Article 71 of the Vienna Convention on Consular Relations, have the force of law in Canada in respect of all foreign states, regardless of whether those states are parties to those Conventions. What then are we to make of the absence of such itemization in the CAHWCA? Is it more consistent with: (i) an intention to adopt the Rome Statute in its entirety, (ii) with an intention to not adopt it at all - or (iii) ambiguity?. Plainly the latter two options violate major principles of statutory interpretation. The purposive theory (Sullivan, Ch.2) cannot tolerate option (ii) in light of the CAHWCA premable quoted above. Further, the presumption of coherence (Sullivan, p.176) is heartily offended by option (iii). Further statutory interpretation principles are probably also violated by (ii) and (iii) if one put one's mind to locating them, but leading amongst them would be common sense.
Further, while the CAHWCA may at times vary from the exact terms of the Rome Statute: for example the broadening of party liability (from "natural persons" to "organizations") brought about by the adoption of Canadian Criminal Code prosecution procedures, such changes are not in conflict with the Rome Statute - but rather are an expansion of it.
Liability of Civilian "Superiors"
A strong "implied exclusion" argument can be made on the basis of the international crimes liability of civilian "superiors" explained in Ch.6: "Supervisory Offences". There can be no plainer example of a non-military "person in authority" than a head-of-state and other high-ranking political office-holder - and yet none of these CAHWCA provisions [s.5(2) and 7(2) - nor any other portion of the Act] contain any immunity provisions whatsoever.
. Criminal Code
Yet another "implied exclusion" argument exists based on Canadian legislative "evidence".
"Heads of state", other state and international organization officials (and their families) are included within the Criminal Code definition of "internationally protected persons" (IPPs) [CCC s.2]. IPPS are privileged to have the protection of special criminal offences and penalties against various and sundry assaults upon their persons [CCC s.7(3)]. In fact such offences against IPPS are deemed to be "terrorist activities" for Criminal Code purposes [CCC s.83.01], invoking the weakened defendant civil liberties provisions associated with that legislation (see Ch.14).
These IPP provisions are yet another instance where the federal legislature has had an oppourtunity to pronounce on the preferred status of heads-of-state and - once again - has not embraced any doctrine of criminal immunity for them.
(e) Estoppel by Rome Statute Ratification
As noted in the "Overview" and in the discussion of "Common Law Immunity" (above), immunity is held by the state of the potential defendant (not by them personally), and granted by the host state. Except where immunity is granted without discretion by a host state's legislation, this implies that immunity may be revoked by either of the involved states.
The most common instance of such waiver is by executive decision of the state of the potential defendant. The ability of the host state to revoke any immunity advanced is less acknowledged (likely from underuse due to its political sensitivity) and grows historically from the nature of common law immunity (see that discussion above). Essentially "common law immunity" is a consensual and revocable presumption of legal immunity granted by the host state to the sovereign, high-ranking ministers and other invited personel (ie. troops) of the "visiting" state.
The Canadian (or any) state's ratification (setting aside for the time being any issues of implementation) of the Rome Statute has great bearing on both consensual aspects of state immunity. As the ratification of treaties is a sovereign executive power of the same nature and authority as the granting of common law immunities as outlined here, any ratification of treaty terms contrary to the granting and continuation of immunities can be viewed as a public withdrawal of consent - or revocation - by any state (host or foreign) so ratifying.
As discussed above, Art 27 of the Rome Statute is an expansive anti-immunity provision. Further however, Art 120 binds its State-parties such that: "(n)o reservations may be made to this Statute". If one takes a state's ratification of these terms as operative executive action as to the terms of the treaty (and what else could it be) then it has major implications on both sides of the immunity issue.
As to a state's retention of immunity rights for its own nationals, Art 27 can be seen as a waiver of such rights against any other state (or the ICC) otherwise exercising proper Rome Statute based jurisdiction. Further, as a consequence of the Art 120 "no reservations" clause, the ratifying state would not be able to re-assert a case-by-case immunity without full repudiation of the Rome Statute.
As to a state's common law extension (or discretionary extension - if statutes so provide) of immunity to the nationals of other states, the Rome Statute ratification is a plain public renunciation of such immunity-granting to all states whose nationals might otherwise come under Rome Statute-originated jurisdiction. It is important to note that this renunciation is NOT limited only to the nationals of other State-parties, but to ANY persons over whom the local implementing law has jurisdiction - for these are the terms to which Canada has bound itself in inter-state relations. Thus in Canada, which can obtain jurisdiction over an international crimes suspect based simply on their presence in Canada (see Ch.4 "Jurisdiction"), the renunciation of the granting of state immunity can be quite broad in effect.
(f) Summary
The above analyses support the proposition that any pre-existing common law doctrine of state or sovereign criminal immunity in Canada has been largely - if not entirely - superceded and abolished by legislative reform (primarily treaty implementation) and in any event has been largely waived by Canada (by Rome Statute ratification).
Should however any degree of state or sovereign criminal immunity persist in Canadian law, this legal fact invites the direct jurisdiction of the International Criminal Court. As we will see in Ch.12, s.3: "The International Criminal Court: Immunity and ICC Default Jurisdiction", the primary precondition to ICC jurisdiction is the failure (through "inability" or "unwillingness") of a state that otherwise has jurisdiction to deal with the allegations made on their merits (see that discussion). |
