d to impunity for those who wield their power destructively and wantonly. It would be hard to find a constitution in the world that does not also aspire to these values. When States consider the interests that are intended to be protected in each case, they are sure to find ample common ground. This should point the way for reconciling any apparent inconsistencies between constitutional provisions and Statute requirements. For example, several European States have found it unnecessary to amend constitutional provisions on the immunity of their Head of State. They believe that any Head of State who commits one of the crimes within the ICC's jurisdiction would place themselves outside of the Constitution.
The process of amending a constitution is often a difficult and time-consuming procedure in many countries. If possible, it would be more desirable to find another way to meet the particular ICC obligation. For example, some constitutions prohibit the extradition of nationals to another State. However, these constitutions do not specifically mention a prohibition against surrendering a national to an international tribunal. These States may be able to draft appropriately worded legislation that allows them to surrender their nationals to the ICC, without requiring a constitutional amendment.
If a State needs to amend its constitution, it may be possible to accomplish this with a simple amendment that addresses a number of different issues at the same time. For example, the Constitutional Council of France identified three potential areas of conflict between the Rome Statute and the French Constitution (see Appendix I). The French Government decided to adopt the following constitutional provision, which addressed all three areas of conflict: "The Republic may recognise the jurisdiction of the International Criminal Court as provided by the treaty signed on 18 July 1998" (article 53-2, Constitutional Law No. 99-568). The advantage of this type of constitutional reform is that it implicitly amended the constitutional provisions in question, without opening an extensive public debate on the merits of the provisions themselves.
The following are some provisions under the Rome Statute that could involve constitutional questions for States Parties when they are requested to surrender a person to the ICC:
- the absence of immunity for Heads of State (article 27);
- crimes listed under the Statute are not subject to a statute of limitations (article 29);
- the obligation of a State to surrender its nationals at the ICC's request (articles 59 & 89);
- the ICC's power to impose a sentence of life imprisonment (article 77 (1)(b)); and
- persons appearing before the ICC will be judged by a three-judge chamber rather than by a jury (article 39 (2)(b)(ii)).
Absence of immunity for Heads of State
Description
Under many constitutions, Heads of State enjoy immunity from criminal prosecution with respect to acts committed in the performance of their duties. Some constitutions also protect members of government and government officials. Under article 27, a Head of State or other official who commits a crime within the jurisdiction of the ICC will lose his or her immunity and can be prosecuted by the ICC. The provisions of the Statute are applicable to everyone regardless of any distinction based on official capacity.
The idea of an absence of immunity for Heads of State accused of international crimes is not new. The existence of this rule was recognised following the First World War in the Treaty of Versailles, after the Second World War in the Charter of the Nuremberg Tribunal, in the Genocide Convention, by the International Law Commission, and in the Statutes of ICTY/R.
Article 27 confirms the rule that individuals cannot absolve themselves of criminal responsibility by alleging that
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