Liability for Offences against the Administration of Justice Involving Abuse of Authority by Public Officials in International Criminal Law

Kopylova Ekaterina Alekseevna ORCID: 0000-0002-0893-6044 PhD in Law Chief Adviser; Office of the President of the Russian Federation for Public Projects; Administration of the President of the Russian Federation 109012, Russia, Moscow, Tverskaya district, Staraya pl., 8/5 kopylova.diplomatie@gmail.com Other publications by this author

Introduction

Maintaining trust in international judicial institutions in modern conditions is becoming not just a derivative of the effectiveness of their activities, but an independent legal and social value on which the stability of the rule of law and the recognition of judicial decisions as legitimate depend. The formation and maintenance of such trust requires not only the observance of procedural guarantees, but also the availability of effective mechanisms for responding to violations committed both by participants in the process external to the court and by its own officials. One of the key tools here is the establishment of criminal liability for encroachments on the administration of justice, which should be understood as acts that undermine the credibility and integrity of the evidentiary process, the independence and impartiality of the court, as well as the integrity of the conduct of participants in the proceedings. At the same time, the current international criminal law demonstrates a significant imbalance: in the presence of a sufficiently detailed array of the most serious international crimes (genocide, crimes against humanity, war crimes, aggression), the regulation of crimes against justice is fragmented, leaving a whole layer of dangerous encroachments, including those related to the abuse of powers of officials of international courts, beyond the scope of a direct regulatory prohibition.

The problem becomes particularly acute in relation to encroachments related to abuse of authority by officials of international criminal courts and tribunals. The model of responsibility for crimes against justice, which has developed in the practice of international criminal tribunals and is enshrined in the Rome Statute of the International Criminal Court, focuses primarily on "external" attacks: false testimony of witnesses, pressure on participants in the process, destruction or falsification of evidence. However, situations in which judges, prosecutors, and court staff use their powers contrary to the interests of justice remain outside the field of legal regulation. Meanwhile, it is precisely these acts that can cause the greatest damage to the legitimacy of international justice, since they affect its institutional core and undermine its credibility as an instrument of justice.

The purpose of this article is to explore the state and prospects of responsibility for crimes against justice related to abuse of authority by officials in international criminal law. The central place in the analysis is given to the composition of bringing an obviously innocent person to criminal responsibility as the most socially dangerous manifestation of such abuse at the international level, considered taking into account the data accumulated by national legal systems and, in particular, Russian criminal law (art. 299 of the Criminal Code of the Russian Federation).

Study

Today, international criminal justice is experiencing serious difficulties in ensuring real, rather than declarative, protection of individual rights. One of the most acute aspects of this problem is the vulnerability of individuals to possible abuse of authority by judges and prosecutors of international criminal courts. Their unfair use of authority, from tendentious evaluation of evidence to the initiation of unjustified prosecution, can directly violate the right to a fair trial and the presumption of innocence in the absence of a holistic and effective mechanism for their responsibility.

This problem has a complex, multidimensional nature and is largely rooted in the peculiarities of the formation of the institution of responsibility for crimes against justice in international criminal law.

On the one hand, we are talking about the comparative novelty of this institution: the norms aimed at protecting international justice were formed fragmentarily, influenced by the practical needs of individual tribunals, and therefore do not form a complete and internally consistent system. As a result, a significant part of potentially dangerous encroachments – primarily related to the abuse of powers of officials of international courts – remains outside the direct regulatory prohibition, which inevitably creates gaps in the mechanisms for protecting the rights of individuals.

On the other hand, the tendency to idealize international criminal justice and its employees, which is ingrained in doctrine and political discourse, plays an essential role. International criminal courts are traditionally perceived as having a special "moral mission" to counter the most serious violations of international law, which creates a stable image of their bodies as objective, impartial and professionally impeccable by definition. In such an approach, the possibility of bias, error, or abuse of authority on the part of judges and prosecutors is effectively marginalized, and the need for special mechanisms for their responsibility is considered secondary.

The lack of a critical, "demystified" view of the activities of international criminal courts contributes to the formation of an atmosphere of de facto impunity, in which potential violations by their officials are either not identified as legally significant, or are perceived as inevitable costs of a "high" justice mission. This undermines the fundamental principles of justice – fairness, equality of the parties before the court, and the right to a defense – and calls into question the ability of international criminal justice to provide genuine, rather than symbolic, protection to the individual.

The absence of special offences in international criminal law related to the abuse of powers of officials of international criminal courts is becoming particularly acute against the background of an increasing trend towards politicization of their activities. In an environment where decisions to initiate investigations and bring charges are increasingly perceived through the prism of geopolitical confrontation, there is a risk that accusations of international crimes will turn into an instrument of domestic political struggle, pressure in foreign policy and the actual replacement of mechanisms for the peaceful resolution of international disputes. The absence of clear criminal law prohibitions on the abuse of the powers of judges and prosecutors in such a situation not only facilitates the possible use of international criminal justice for political purposes, but also undermines its credibility as a neutral and impartial institution of justice.

In the future, attention will be focused on one indicative type of abuse of authority by officials of international criminal courts, which has not yet been reflected in current international criminal law, but should be directly taken into account when codifying responsibility for crimes against justice. We are talking about bringing to criminal responsibility a person who is obviously innocent of the alleged act, that is, a situation where a judge or prosecutor, having reliable information about the innocence of a person or the absence of legitimate grounds for prosecution, initiates or supports the prosecution, using the powers granted to him contrary to the goals of justice.

This crime is known to the criminal law of Russia and a number of foreign countries, such as Germany, Armenia, and China. It usually refers to crimes against public service and sometimes more narrowly to crimes against justice.

This crime has four objects. It:

1. encroaches on relations arising in connection with the investigation and prosecution of crimes by international judicial authorities;

2. encroaches on relations in the field of human rights protection. Article 7 of the Universal Declaration of Human Rights of 1948 guarantees everyone equal protection of the law. Its article 9 prohibits arbitrary arrest, detention or exile. Article 10 of the Universal Declaration states: "Everyone, in order to determine his rights and duties and to establish the validity of the criminal charge against him, has the right, on the basis of full equality, to have his case examined in a public manner and in compliance with all the requirements of justice by an independent and impartial tribunal." Similarly, Part 1 of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950 provides: "In the event of a dispute over his civil rights and duties or any criminal charge brought against him, everyone has the right to a fair and public hearing within a reasonable time by an independent and impartial court established by law.";

3. encroaches on relations that ensure the protection of human honor and dignity. A. F. Koni writes: "Criminal prosecution is too serious a thing not to require the most careful consideration. Neither the subsequent acquittal by the court, nor even the termination of the case before the trial, very often cannot erase the material and moral harm caused to a person by hasty and unjustified involvement in a criminal case" ^{[1, p. 807]}. In the case of international prosecution for serious crimes that are widely publicized, the damage to the reputation and dignity of a person who has been unfairly accused increases significantly.;

4. It poses a threat to international peace and security, as it undermines confidence in international criminal justice, and also allows individuals who are truly guilty of serious violations of international law to escape punishment and continue their criminal activities.

In the practice of international criminal courts, prosecution is a two-stage process involving the prosecution and the judges. The prosecution shall address to the authorized judge or judges a motion for the issuance of an arrest warrant for the accused or for his summons to court. The relevant application must contain evidence of its validity. Based on the information provided by the prosecution, the authorized judge or judges verify that there are reasonable grounds to believe that the accused has committed a crime within the jurisdiction of the court and grant the request.

Taking into account these features, the subject of this crime can be either only the prosecutor, or the prosecutor and the judge (judges) who granted his petition. At the same time, it is not necessary that the prosecutor and the judges act by prior agreement.

In any case, the crime is considered completed from the moment the petition is satisfied. If the application has been refused, there is an attempt at a crime by the prosecution.

This crime has the form of an action.

The first element of the crime of bringing a knowingly innocent person to criminal responsibility is for the prosecutor of the International Criminal Court to send a request to an authorized judge or judges to issue an arrest warrant for the accused of committing a crime under the jurisdiction of the court, or to summon him to court.

The second element is that the prosecutor knew or should have known about the existence of grounds for declaring the accused innocent of committing this crime or about the absence of elements of this crime in the accused's act.

There are four such grounds: a) the absence of a crime event has been established, for which the person is being charged; b) the evidence collected indicates the absence of reasonable grounds to believe that the accused committed a crime, and the possibilities for further collection have been exhausted; c) evidence of the accused's non-involvement in the commission of a crime has been established; d) the absence of signs of corpus delicti.

The third element is the fact that the authorized judge or judges have satisfied the relevant petition.

Finally, the fourth element (mandatory only for establishing the guilt of the judge(s)) is that the authorized judge or judges knew or should have known about the existence of grounds for declaring the suspect innocent of committing this crime or the absence of signs of this crime in the suspect's act.

Of fundamental importance for the qualification of an act is the distinction between criminal intent and a conscientious investigative error. The subjective side of this crime is characterized by direct intent: the prosecutor or judge is reliably aware of the existence of grounds for declaring a person innocent, but deliberately ignores these circumstances and acts contrary to the goals of justice. A conscientious error, on the contrary, is caused by an objective lack of information, limited access to evidence, or their contradictory nature in the context of an international conflict, when the prosecutor or judge makes a decision based on available data and reasonable professional judgment. The criterion for distinguishing is not so much the result of the procedural actions (which may turn out to be erroneous in both cases), as the subject's attitude to the facts known to him: with criminal intent, there is a deliberate distortion or disregard of evidence of innocence, with a conscientious error – their absence at the disposal of an official or reasonable doubt about their reliability. In practical terms, intent may be supported by circumstances such as ignoring obvious alibis, refusing to verify available exculpatory evidence, distorting the content of procedural documents, or using deliberately unreliable sources of information.

Bringing an obviously innocent person to criminal responsibility may be accompanied by the prosecution committing other illegal acts, such as falsifying evidence or exerting unlawful influence on a witness. In this case, his actions are subject to qualification according to the totality of crimes.

Bringing an innocent person to criminal responsibility for the purpose of interfering in the internal affairs of a State may be considered as an aggravating circumstance. Formally, the jurisdiction of international criminal courts extends to all individuals, regardless of their status. However, in practice, the focus of international justice is mainly on persons holding high political or military positions in their countries, such as heads of State, leaders of major political parties, and representatives of the supreme military command. Involving them as defendants in international criminal proceedings can have far-reaching consequences for the political situation in the relevant State, its internal and external security. The involvement of a deliberately innocent person in order to provoke such consequences (for example, regime change) should be punished with extreme severity.

Crimes involving bringing an obviously innocent person to criminal responsibility can lead to extremely serious consequences not only for specific individuals, but also for the political stability of States and even entire regions. In situations where the abuse of the powers of officials of international criminal courts affects the vital interests of a particular State, it has an objective need for a real mechanism to bring such persons to justice. It is quite predictable that in such circumstances, the State is unlikely to be inclined to entrust the issue of their responsibility to the same international court and will seek to implement justice in their own jurisdictions. However, for this to happen, there must be clear, specially developed norms in the national legal order that make it possible to qualify the relevant acts and ensure the inevitability of responsibility of the guilty officials.

In connection with the issuance by the International Criminal Court (ICC) of arrest warrants for President of the Russian Federation Vladimir Putin and Presidential Commissioner for Children's Rights M. A. Lvova-Belova, the Investigative Committee of the Russian Federation has initiated criminal proceedings against ICC Prosecutor K. Khan under Part 2 of Article 299 and Part 1 of Article 30, Part 2 of Article 360 of the Criminal Code of the Russian Federation (bringing an obviously innocent person to criminal responsibility, combined with illegally accusing a person of committing a grave or especially grave crime, as well as preparing to attack a representative of a foreign state enjoying international protection in order to complicate international relations) and three ICC judges under Part 2 of Article 301, Part 1 of Article 30, Part 2 of Article 360 of the Criminal Code of the Russian Federation (knowingly unlawful detention, as well as preparation for an attack on a representative of a foreign state enjoying international protection, in order to complicate international relations).

As shown above, taking into account the specifics of the prosecution procedure in international criminal courts, in which the prosecutor and the authorized judge (judges) participate equally, the actions of the judges who granted the application for an arrest warrant against V. V. Putin and M. A. Lvova-Belova may also qualify under Part 2 of Article 299. and Part 1 of Article 30 of the Criminal Code of the Russian Federation. This is the first known attempt to extend the effect of Article 299 of the Criminal Code of the Russian Federation to employees of an international organization to which the Russian Federation is not a party. In the Russian literature on criminal law, the range of subjects of the crime provided for in this article is traditionally limited to officials of Russian law enforcement agencies – interrogators and investigators ^{[3, pp. 58-62; 4, pp. 46-51; 5, pp. 15-18]}. At the same time, there is no explicit indication in the disposition of Article 299 of the Criminal Code of the Russian Federation of specific categories of persons who may be recognized as subjects of this crime. This opens up the possibility for a broader interpretation of the norm. Nothing in the text of the article prevents the application of its provisions to foreign citizens, including employees of international organizations, if their actions infringe on the interests of the Russian Federation or its citizens.

The position of Russian scientists who propose a restrictive interpretation of Article 299 of the Criminal Code of the Russian Federation can be explained by the lack of precedents and practice of applying this article to foreign citizens or employees of international organizations.

The legal nature of the Russian Federation's relations with an international organization, including the International Criminal Court, does not in itself prevent the application of article 299 of the Criminal Code of the Russian Federation and is not a condition for liability under this rule. It only determines on what basis the Russian criminal law may apply to the relevant acts.

For States parties to the Rome Statute, the ICC is integrated into the internal legal order and is actually included in their judicial system; accordingly, its staff are perceived by them as their own officials subject to internal liability regimes. For the Russian Federation, on the contrary, the ICC remains a judicial mechanism external to its jurisdiction, which is not an element of the national judicial system.

In these circumstances, the possible application of Article 299 of the Criminal Code to the actions of the ICC staff can be justified through the principle of passive personal jurisdiction, enshrined in Part 3 of Article 12 of the Criminal Code, that is, provided that the rights and legitimate interests of a citizen of the Russian Federation are affected as a result of bringing an obviously innocent person to justice. This approach allows us to consider the relevant acts as crimes subject to Russian criminal law, regardless of the fact that they were committed by officials of an international judicial body outside the territory of Russia.

The validity of this position was confirmed by the verdict in absentia of the Moscow City Court in the specified criminal case.

It should be recognized that the actual implementation of such sentences is fraught with significant practical difficulties. In the absence of legal assistance from States parties to the Rome Statute and diplomatic immunities, the enforcement of judgments against ICC officials seems unlikely in the short term. However, the legal significance of such decisions goes beyond their immediate enforcement. First, they establish a legal precedent demonstrating the applicability of national criminal legislation to the actions of employees of international organizations when infringing on the rights of citizens of the State. Secondly, they create a legal basis for subsequent actions in the event of a change in the international legal status of these persons or the loss of their immunities. Thirdly, such decisions have a preventive effect, signaling to officials of international courts about possible legal consequences of unfair use of authority. Finally, they contribute to the formation of international practice in which States exercise their sovereign right to protect their own citizens from procedural arbitrariness, which in the future may stimulate the development of universal mechanisms for the responsibility of officials of international justice.

Russia has become the first State whose competent authorities have opened a criminal case against current employees of the ICC in connection with their activities, and the competent court has issued a guilty verdict against them. At the same time, both the Prosecutor and the ICC judges enjoy diplomatic immunities that coincide in scope with the immunities of heads of diplomatic missions in international law. They cannot be held criminally or otherwise liable for actions committed in an official capacity, even after the expiration of their term of office. The problem of overcoming such immunities in the context of prosecution for abuse of authority is complex and requires a differentiated approach. On the one hand, being a third party to the Rome Statute of the ICC, the Russian Federation is not bound by its provisions, including the regime of immunities and privileges of Court officials. On the other hand, the existence of immunities for persons holding senior positions in international organizations is a common norm of international law, recognized, among other things, by States that are not parties to the founding treaties of such organizations.

At the same time, the functional nature of the immunities of officials of international organizations presupposes their intended purpose – to ensure the independence and effectiveness of the organization, and not the absolute irresponsibility of its employees. The doctrine of international law recognizes that immunities do not apply in cases where the actions of an official go beyond the functions of the organization or are committed with a clear abuse of authority (ultra vires). Bringing an obviously innocent person to criminal responsibility cannot be considered as an act committed within the legal framework of official authority, since it contradicts the very essence of justice as an institution.

In addition, a State whose citizens have suffered from the actions of officials of an international organization retains the sovereign right to protect its citizens through the exercise of its own jurisdiction. The application of passive personal jurisdiction in such cases is consistent with the general principles of international law. The refusal to recognize immunity in cases of abuse of authority can be justified as an exception to the general rule aimed at preventing the formation of zones of irresponsibility.

Conclusion

Responsibility for crimes against justice in international criminal law is developing unevenly. With a relatively well-established set of structures aimed at protecting the evidentiary process and participants in legal proceedings from external influence, encroachments related to abuse of authority by officials of international criminal courts themselves remain unresolved. Bringing an obviously innocent person to criminal responsibility at the international level is a concentrated expression of such abuse and needs to be normalized as an independent crime against justice with clearly defined features (elements).

An analysis of the Russian experience in criminalizing the involvement of an obviously innocent person (Article 299 of the Criminal Code of the Russian Federation) shows the fundamental possibility and necessity of forming a similar composition at the international level, taking into account the multilevel nature of the procedure, the specifics of the institutional structure of international courts and the need for a clear distinction between abuse and bona fide error.

A comprehensive codification of crimes against the administration of international justice, including both existing structures and a block of official crimes, seems to be a necessary prerequisite for strengthening the legitimacy and effectiveness of international criminal justice. The formation of such a system based on the experience of the International Court of Justice, the International Tribunal for the Law of the Sea, the WTO dispute resolution mechanisms and other international judicial bodies will ensure uniformity of law enforcement, increase predictability and create additional guarantees for the protection of the rights of participants in international legal proceedings.

The practical implementation of the proposed model involves a number of legal challenges, including overcoming diplomatic immunities, distinguishing intent from bona fide error, and ensuring the effective enforcement of court decisions in the absence of international cooperation. However, these difficulties should not prevent the regulatory consolidation of the relevant formulations and the formation of their application practice. The creation of a legal mechanism for the responsibility of officials of international courts, even in the absence of immediate opportunities for its enforcement, has an independent legal value, forming a preventive effect and defining the legal limits of the implementation of international justice.

The article is published in its final version as approved following the last positive peer review recommending acceptance for publication. It incorporates revisions made by the author in response to prior negative peer review reports that did not recommend publication. All peer review reports, including initial negative reviews, are published in open access alongside the article. All versions of the author’s revisions are archived in the publisher’s repository and may be made available upon reasonable request in accordance with Elsevier’s editorial policies and applicable data availability requirements.
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