aquiescencia

Por Nicolás Carrillo Santarelli

En sede de apelación, la Corte Penal Internacional decidió que no son aplicables las normas consuetudinarias sobre inmunidades personales y funcionales frente a la Corte, y que el deber de cooperar de los Estados con la Corte exige no invocar estas inmunidades, aplicables únicamente ante tribunales internos, como excusa para no detener o enviar a quienes tengan una orden de arresto emitida por l Corte.

En momentos en los que se ha cuestionado mucho a la CPI, la decisión ha resultado ser polémica y considerada como una que no ha zanjado del todo la discusión (algunos incluso sugieren que se plantee una solicitud de opinión consultiva ante la Corte Internacional de Justicia), según se puede observar en blogs de derecho internacional prestigiosos y en los internacionalistas que comentan muy activamente como comunidad académica en la red social Twitter (algunos se oponen a los argumentos pero no al fondo), aunque a mi no me parece una mala decisión (porque no hay a mi parecer, cuando menos suficiente, opinio juris contraria a la falta de inmunidad ni generalidad en una supuesta práctica; por el precedente sobre principios de derecho penal internacional de Núremberg y por criterios sobre el principio de efectividad y abuso del derecho de quien pretenda burlar la jurisdicción internacional cuando debe operar como agente del derecho internacional con desdoblamiento funcional), según he discutido en aquel medio. Dejo a continuación algunos extractos relevantes de la decisión:

«113. The Appeals Chamber fully agrees with Pre-Trial Chamber I’s conclusions in the Malawi Decision333 as well as that of the SCSL’s Appeals Chamber in the Taylor case and notes that there is neither State practice nor opinio juris that would support the existence of Head of State immunity under customary international law vis-à-vis an international court. To the contrary, as shown in more detail in the Joint Concurring Opinion of Judges Eboe-Osuji, Morrison, Hofmański and Bossa, such immunity has never been recognised in international law as a bar to the jurisdiction of an international court.334 To be noted in that regard is the role of judicial pronouncements in confirming whether or not a rule of customary international law has as such ‘crystallized’.335 The Appeals Chamber is satisfied that the pronouncements of both the Pre-Trial Chamber in the Malawi Decision and of the Appeals Chamber of the Special Court for Sierra Leone have adequately and correctly confirmed the absence of a rule of customary international law recognising Head of State immunity before international courts in the exercise of jurisdiction. The Appeals Chamber accordingly rejects any contrary suggestion of the Pre-Trial Chamber in that regard, in both this case and in the case concerning South Africa.

114. The absence of a rule of customary international law recognising Head of State immunity vis-à-vis international courts is relevant not only to the question of whether an international court may issue a warrant for the arrest of a Head of State and conduct proceedings against him or her, but also for the horizontal relationship between States when a State is requested by an international court to arrest and surrender the Head of State of another State. As further explained in the Joint Concurring Opinion of Judges Eboe-Osuji, Morrison, Hofmański and Bossa336 and correctly found by the Pre-Trial Chamber in the Malawi Decision,337 no immunities under customary international law operate in such a situation to bar an international court in its exercise of its own jurisdiction.

115. The Appeals Chamber considers that the absence of a rule of customary international law recognising Head of State immunity vis-à-vis an international court is also explained by the different character of international courts when compared with domestic jurisdictions. While the latter are essentially an expression of a State’s sovereign power, which is necessarily limited by the sovereign power of the other States, the former, when adjudicating international crimes, do not act on behalf of a particular State or States. Rather, international courts act on behalf of the international community as a whole.338 Accordingly, the principle of par in parem non habet imperium, which is based on the sovereign equality of States, finds no application in relation to an international court such as the International Criminal Court.

116. The Appeals Chamber notes further that, given the fundamentally different nature of an international court as opposed to a domestic court exercising jurisdiction over a Head of State, it would be wrong to assume that an exception to the customary international law rule on Head of State immunity applicable in the relationship between States has to be established; rather, the onus is on those who claim that there is such immunity in relation to international courts to establish sufficient State practice and opinio juris. As further explained in the Joint Concurring Opinion of Judges Eboe-Osuji, Morrison, Hofmański and Bossa, there is no such practice or opinio juris.339

117. In sum, the Appeals Chamber finds that there was no rule of customary international law that would have given Mr Al-Bashir immunity from arrest and surrender by Jordan on the basis of the request for arrest and surrender issued by the Court. It follows that there was no ground for Jordan not to execute the request for arrest and surrender and that therefore it did not comply with its obligation to cooperate with the Court pursuant to articles 86 et seq. of the Statute […]

123. The Appeals Chamber notes in this regard that the obligation of States Parties to cooperate with the Court when exercising its jurisdiction over crimes listed in article 5 of the Statute (the crime of genocide, crimes against humanity, war crimes and the crime of aggression) relates to breaches of fundamental norms of international law that have, such as the prohibition of genocide, the character and force of jus cogens.347 The obligation to cooperate with the Court reinforces the obligation erga omnes to prevent, investigate and punish crimes that shock the conscience of humanity, including in particular those under the jurisdiction of the Court and it is this erga omnes character that makes the obligation of States Parties to cooperate with the Court so fundamental. These considerations are reflected in the possibility, pursuant to article 87(7) of the Statute, of referring non-compliance with these obligations to the Assembly of States Parties and, in case the situation to which the cooperation request relates was referred to the Court by the UN Security Council, to the UN Security Council.348 The resulting importance of the duty to cooperate lends further weight to the argument that the duty to cooperate under articles 86 et seq. of the Statute must be interpreted in light of article 27(2) of the Statute.

124. As stated by Pre-Trial Chamber II in the South Africa Decision, if States Parties to the Statute were allowed to rely on immunities or special procedural rules to deny cooperation with the Court, this would create a situation which would ‘clearly be incompatible with the object and purpose of article 27(2) of the Statute’.349 Indeed, as noted by Pre-Trial Chamber II ‘the Court’s jurisdiction with respect to persons enjoying official capacity would be reduced to a purely theoretical concept if States Parties could refuse cooperation with the Court by invoking immunities based on official capacity’.350 If article 27(2) were to be read narrowly only to encompass proceedings before the Court (i.e. the Court’s adjudicatory jurisdiction), it would be unclear, as noted by the Prosecutor, whether any Head of State – even of a State Party – could ever be effectively arrested and surrendered, absent an express waiver by the State concerned.351 To read the Statute in this way would be contrary to the principle of effectiveness.

125. Furthermore, the reference in article 27(2) to immunities ‘under national law’ suggests that the provision also applies to the relationship between the Court and States Parties because national law could in any event not be invoked before the Court; the reference to ‘national law’ would be meaningless if article 27(2) were considered to be unrelated to Part 9 of the Statute.352 Therefore, contrary to the submissions of Jordan and some of the amici curiae, article 27(2) is relevant not only to the adjudicatory jurisdiction of the Court, but also to the Court’s ‘enforcement jurisdiction’ vis-à-vis States Parties to the Rome Statute.353

126. In light of the above, the term ‘cooperate fully’ in article 86 must be understood and interpreted in the context of article 27(2). A State Party would not be cooperating fully with the Court if, when faced with a request for the arrest and surrender of its Head of State, it refused to comply with this request, relying on Head of State immunity. The Pre-Trial Chamber’s finding in this regard was therefore correct in law».