Examining the Immunities of a Former Head of State in International Criminal Law

By Prerna Deep*

Introduction

According to Oppenheim “The highest organ of the state, representing it, within and without its borders, in the totality of its relations, is the Head of State.” [1] This article delves into the jurisprudential concept of Head of State and immunity provided. There are two types of immunity, namely, ratione personae and ratione materiae[2]. Within the scope of this article, we will focus on ratione personae. The article examines the immunity provided to a former Head of State in light of the recent developments and controversy surrounding the concept in international law. Lastly, the article diverts the readers to Universal Jurisdiction regarding such matters, the development of international tribunals, and the power of national courts, and finally provides the concluding remarks.

Background

Historically, the Head of State like states themselves were completely invulnerable for acts committed either in a public or a private capacity. Since there was no practical difference between the Head of State and state themselves, it paved the way for incorporating immunities for the Head of a State that served a twofold purpose firstly, regarding sovereign state integrity and secondly promoting ambassadorial duties. As aforesaid mentioned, this blog analyses ratione personae. This immunity is available to a restricted category of senior authorities, particularly the Head of State, Head of Government, and representatives. The outright ideal of the immunity ratione personae as discussed in Democratic Republic of Congo v Belgium [2002] ICJ Rep 3[3] implies that it forbids the exercise of criminal jurisdiction against the people as mentioned above both in public and private acts while the person is in office.

Kelsen supported the immunity of state officials from the jurisdiction of foreign courts as no state is permitted to practice through its very own court’s practices over another state except if the other state explicitly assents. [4] The rule of fairness and autonomy of states confines the basic skill of national courts. These standards are undermined if foreign jurisdictions are allowed to be exercised. Professor Orentlicher rightly mentions that “states have considered the collective judgment of the international community to provide a vital safeguard against the potential destabilizing effect of unilateral judgment in this area.” [5] France’s, the Cour de Cassation in 2001 held that Libyan Head of State Muammar el-Qaddafi was qualified for immunity in a case claiming that Qaddafi’s responsibility for besieging a French DC-10 flying machine in an assault that executed 170 individuals. [6] In 1999, The Court in Spain declared that it had no position to prosecute sitting Cuban Head of state Fidel Castro.[7]

Immunities of Head of State vis-a-vis Immunities of Former Head of State

Serving Heads of State and Government during their office tenure enjoy total insusceptibility from criminal jurisdiction. However, this immunity is not extended to a Former Head of State when he abandons office as exercising jurisdiction against previous heads of state responsible for their worldwide crimes does not meddle to advance diplomatic capacities and would generally not hamper global relationships. [8] There is a visible shift in the treatment of the Head of State and a Former Head of State as Courts across the globe have shown a substantial interest in exercising jurisdiction regarding crimes committed by the Former Head of State.[9] In R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (‘Pinochet I’),[10] the House of Lords maintained the extradition request reasoning immunity ‘ratione personae‘ doesn’t have any significant bearing to previous heads of state.[11] The peculiar case of acts of corruption taken place during office tenure, and the limit of immunity to the individual was explored in an Italian case[12]. On 6 June 2017, the Italian Court of Cassation held that a former member from the Assembly, Mr. Luca Volontè, blamed for demonstrations of defilement and illegal tax avoidance, can be prosecuted.[13] It subdued a judgment by a Milan Court[14] that had discovered that Mr. Volontè profited from the extent of debasement’s demonstrations are concerned from immunity under both the Italian constitution and the Council of Europe’s General Agreement Privileges and Immunities. In arriving at its verdict, the Court of Cassation alluded expressly to the Criminal Law Convention on Corruption[15]. Given the development of international law in this field, it may be considered to apply the standards progressed by the Court of Cassation mutatis mutandis in the area of State immunity. In the light of the above principles and case laws, it can be inferred that if the President of a country has a role in international crime, he can be tried and convicted for it in a foreign national court after he vacates his office as the Head of the state as the immunity does not protect him any more of his actions.

Jurisdiction of the International Tribunals

Under the jurisdiction of the International Tribunals, even while holding the office of the Head of State, the person can be tried as the defence of immunities does not work in that case. Before the International Criminal Court, for example, no immunity could banish procedures against authorities from member States or States subject to a UN Security Council referral. The presence of alleged special cases to State immunities for human rights infringement has been the subject of legal controversy and a rich scholarly discussion worldwide. In Eichmann, for example, the Supreme Court of Israel took the view that the Nuremberg Principles, which discussed immunity as a defence and bar to purview, have progressed toward becoming a piece of the law of countries and must be viewed as having been established as the same. [16] During Taylor’s Case[17], The Special Court depended upon the ICJ’s reasoning in the Arrest Warrant case to recommend that ‘[t]he nature of the Tribunals has always been a relevant consideration in the question whether there is an exception to the principle of immunity.’[18] Universal Jurisdiction can be equated to an unconditional power that enables national courts to indict any individual even with immunity for crimes against international human rights law.[19] It holds that a few wrongdoings are so all-around loathsome and, in this manner, denounced that their culprits are hostis humani generis[20]  foes of everyone. In the Nuremberg Trials following the Second World War, the International Military Tribunal characterized “[a]n international crime as … an act universally recognized as criminal, which is considered a grave matter of international concern and for some valid reason cannot be left within the exclusive jurisdiction of the state that would have control over it under ordinary circumstances.”[21] Hence, locale over these wrongdoings must be universal too. Universal Jurisdiction doles out a position to arraign a criminal under its very own law, as opposed to that of the state where the wrongdoing was carried out. This standard is grounded in the supposition that the indicting state is following up for the benefit of all states.

Concluding Remarks

The fundamental evaluation of this essay states that former Heads of State don’t profit by immunity when accused of global wrongdoings under the steady gaze of foreign national courts. Acting Heads of states can’t be indicted in national courts abroad as per customary international law. Be that as it may, before international criminal councils, the circumstance is unique: As a matter of rule, both acting and previous Heads of State cannot take the defence of immunity when accused of international crime in those fora. The laws concerning international immunities display the indispensable role national courts played in the application and advancement of international law. The judgments of domestic courts determine the scope of international customary law to an extent.

State immunity is a model of international law dependent on the assent of states. The degree to which people seek this as an advantage from indictment for criminal offenses as a part of state invulnerability is vague. Immunity stands in the focal area of international law, and any transition from the standard of immunity bears the intrinsic threat of causing corresponding activity by different States and disintegration of the rule in that capacity; however, there is a shift in outlook and examiners and judges presently have a solid premise to act against these State authorities fearlessly. It is still a developing field of law. [22]


* Judicial Law Clerk at the Supreme Court of India | British Council GREAT Scholar.

[1]Jennings R, Watts A and Oppenheim LFL (eds), Oppenheim’s International Law Vol. 1 Peace Parts 2 to 4 (9th ed., Longman Publications 2000)

[2] Alexandre Skander Galand, ‘Chapter 4 Article 13 (b) vs Immunity of State Officials’ in UN Security Council Referrals to the International Criminal Court, (Leiden, The Netherlands: Brill | Nijhoff, 2019) doi: https://doi.org/10.1163/9789004342217_006 [Accessed on 17 March 2022]

[3] Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium) [2002] ICJ Rep 3 at para 54

[4]FitzGerald GF, ‘Principles of International Law. By Hans Kelsen. 2nd Ed. Revised and Edited by Robert W. Tucker. New York: Holt, Rinehart and Winston. 1966. Pp. Xviii, 602.’ (1967) 5 Canadian Yearbook of international Law 356.

[5] Mettraux G, Dugard J and Plessis M du, ‘Heads of State Immunities, International Crimes and President Bashir’s Visit to South Africa’ (2018) 18 International Criminal Law Review 577.

[6]Tunks MA, ‘Diplomats or Defendants? Defining the Future of Head-of-State Immunity’ (2002) 52 Duke Law Journal 651.

[7]‘Case Reports from the UAE: Abu Dhabi Supreme Court of Cassation’ (2002) 17 Arab Law Quarterly 102 https://doi.org/10.1163/026805502125827377 [Accessed 19 March 2022].

[8] Ibid at 660.

[9] Regina v. Bow St. Metro. Stipendary Magistrate, [2000] 1 A.C. 147, 205-06 (H.L. 1999)

[10] [1998] All ER 897.

[11] Ibid.

[12]Mwenda KK, Public International Law and the Regulation of Diplomatic Immunity in the Fight against Corruption (Pretoria University Law Press (PULP) 2011).

[13] Directorate of Legal Advice and Public International Law, DLAPIL, “State Immunity under International Law and Current Challenges” (Council of Europe) https://rm.coe.int/final-publication-state-immunity-under-international-law-and-current-c/16807724e9 [Accessed 19 March 2022].

[14] Alessandro Bufalini, ‘Judgment 238/2014 and the importance of a constructive dialogue’, VerfBlog, 2017/5/12, https://verfassungsblog.de/judgment-2382014-and-the-importance-of-a-constructive-dialogue/ , DOI: 10.17176/20170512-130742 [Accessed 21 March 2022].Top of Form

[15] Europe, Council., 2022. Full list. [Criminal Law Convention on Corruption (ETS No. 173)] Conventions and Treaties. Available at: https://www.coe.int/en/web/conventions/full-list?module=treaty-detail&treatynum=173  [Accessed 21 March 2022].

[16] Attorney General of Israel v. Adolf Eichmann, Supreme Court of Israel, 29 May 1962, 36 ILR 277 (‘Eichmann Supreme Court Judgment’).

[17] Prosecutor v. Charles Taylor, SCSL-2003-01-I, SCSL, Decision on Immunity from Jurisdiction, 31 May 2004 paras. 41–42.

[18]Ibid at para 49.

[19]Joyner CC, ‘Arresting Impunity: The Case for Universal Jurisdiction in Bringing War Criminals to Accountability’ (1996) 59 Law and Contemporary Problems 153.

[20]Greene J, ‘Hostis Humani Generis’ (2008) 34 Critical Inquiry 683.

[21]‘Charter of the International Military Tribunal’ (1945) 39 American Journal of International Law 258.

[22] Soler C, The Global Prosecution of Core Crimes under International Law (TMC Asser Press 2019).

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