A Dictator’s Immunity for Life is no Longer Guaranteed

For as long as José Eduardo dos Santos remains President of the Republic of Angola, and even after he steps down (if he ever does), he is guaranteed immunity from prosecution under Articles 127 and 133 of the Angolan Constitution.

This begs the question:  Up to what point is this statutory protection legitimate?  Can a President loot his country with impunity or are there any circumstances under which a serving or past president can be brought to justice?

Ever since the United Nations was founded in 1945, jurists in the field of International Law have tried to create legal instruments to prevent political leaders from committing crimes while in office.  To date, the best-evolved and most comprehensive legal instrument for this purpose emerged from the Rome Statute which created the International Criminal Court at The Hague.

The ICC was set up to prosecute international individuals for international crimes such as genocide, crimes against humanity and war crimes.  These are crimes linked to war and violence which in criminal terms are called “crimes against the person”.

The ICC is intended to complement existing national judicial systems and it may therefore only exercise its jurisdiction when certain conditions are met, such as when national courts are unwilling or unable to prosecute criminals or when the United Nations Security Council or individual states refer investigations to the Court.

The crimes that José Eduardo dos Santos is alleged to have committed over more than three decades, what we might call ‘crimes against the patrimony’, are not immediately identifiable in the classification of crimes that fall within the ICC’s jurisdiction.

Acts such as the looting of Angola’s natural riches, money-laundering in the international financial system, national and international corruption and other similar situations are not, at first glance, countenanced within the provisions of the Rome as capable of being prosecuted within the ICC.

However, a more detailed analysis allows us to advance this hypothesis as per Article 7, Clause 1 (k) of the Rome Statute. This article considers as a crime “Other inhumane acts of a similar character, intentionally causing great suffering, or serious injury to body or to mental or physical health”.

Article 7, 1 (k) is what jurists call a “residual rule”, which indicates that the list of acts expressly indicated in the preceding articles is not an exhaustive one.  This residual character reflects the notion that it is not possible to create an exhaustive list of crimes.

As Timothy LH McCormack writes in The Permanent International Criminal Court: Legal and Policy Issues:  “The capacity of human beings to concoct novel forms of atrocity is a constant source of discomfort and shame and it is critical that provisions exist to facilitate prosecution of such actions not currently known or experienced.”

To condemn a country’s peoples to poverty, to a reduced life span and to permanently high levels of infant mortality, as a result of having diverted (or allowed to be diverted) the country’s resources and wealth, is arguably akin to the greatest atrocities that it is possible to commit. Such deliberate harm to the physical and mental health of the nation is also an atrocity that demands adequate punishment.

In Article 7, 1(k) we have a rule that allows for the inclusion of criminal situations that have not been specifically defined in the preceding rules.  There are two material elements required for inclusion: 1) an act that causes great suffering or serious injury to body or mental or physical health; and 2) an act of similar character (in nature or gravity) to any other act specified in Article 7 (1).

In this respect, it should be clarified from the outset that the inclusion of “depriving the people of their country’s resources” as an act that could be construed as “to cause great suffering and serious injury to body or mental or physical health” within the ICC’s definitions of Crimes against humanity, in accordance with Article 7(1) (a) to (j) would introduce a new category to the list of Crimes against humanity.

However,  and with reference to the principle of “nullum crimen sine lege” (no crime without law) any additional definition or category of a Crime against humanity may be ruled as a violation under existing International Law and Human Rights Law.  Such ruling can be made in the concrete case before the court.

Thus there may be juridical grounds for initiating an international criminal case against the Angolan President, if sufficient evidence can be presented to charge Jos? Eduardo dos Santos of Crimes against humanity before the ICC.

Although Angola has not signed up to the Rome Statute that established the ICC, should such a case be brought, this fact would merely impede the handover of the President to the Hague, but it would not prevent the ICC from initiating proceedings.   As the case of Chile’s General Pinochet showed, the principle of universal jurisdiction has trumped local amnesty laws and provides a useful mechanism for prosecuting brutal dictators beyond their national boundaries.