French Contributions to the issue of Head of State Immunity with regard to International Crimes

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On 14 November 2023, a French court issued an arrest warrant for Syria’s President Bashar al-Assad on “charges of complicity in crimes against humanity and complicity in war crimes”. This decision might have come as a surprise to the majority of scholars who view the issue of head of state immunity through the lens of the judgment of the International Court of Justice, in the Arrest Warrant case. According to this judgment, foreign heads of state enjoy “full immunity” from foreign criminal jurisdiction. Thus, the prohibition to prosecute foreign heads of state extends to rulers who – like Bashar al-Assad – are allegedly responsible for war crimes and crimes against humanity. This post highlights that the French arrest warrant should not have come as a surprise. This, because it follows on the footsteps of a rather constant and uniform French practice and opinio iuris rejecting head of state immunity with regard to crimes under customary international law (on “international criminal law stricto sensu” as comprising only the crime of genocide, crimes against humanity, war crimes, and the crime of aggression, see here). The first two sections of this post will focus on the French most important contributions to such rejection, which occurred in the aftermath of the two world wars. The third section highlights that more recent French judicial contributions are aligned with that rejection.

I. French Contributions in the aftermath of the First World War

In the aftermath of the First World War, the British and the French issued two “officially sanctioned” reports supporting an indictment against the German Emperor for crimes perpetrated in connection with that war. The two reports are a gem (in this post, the analysis will focus on the French Report, but a survey of the English Report – which concluded that “there is no rule or usage exempting from criminal jurisdiction sovereigns who have invaded the territory of another sovereign” – is a must). 

Whereas the English Report alluded to the views of Sir Christopher Hatton, Ward, Hallam, Kluber, Wildman, Phillimore, Bynkershoek, Wheaton, the Schooner Exchange, and Hugo Grotius to justify its conclusion that the German Emperor was not entitled to immunity from foreign criminal jurisdiction, the French Report (authored by Professor Ferdinand Larnaude and Professor Albert Geouffre de Lapradelle) alluded to the position of Emmerich de Vattel. For Vattel, a Prince guilty of an unjust war was not entitled to immunity from foreign criminal jurisdiction. The authors of the French Report noted that Vattel did not even attempt to substantiate his position, “so self-evident” it appeared to him. It was also self-evident for the authors of the report that French military laws, which permitted the prosecution of sitting heads of state in French military courts, did not violate international law. Since, at the time, international military courts did not exist, prosecution of war crimes perpetrated by whomsoever, including heads of state, was a matter to be handled by national courts. According to the French Report, that meant there was no rule of international law granting heads of state immunity from foreign jurisdiction with regard to war crimes.

Nonetheless, due to the inadequacy of “municipal penal law” (particularly, French ordinary law) to investigate and prosecute the vast criminality associated with the German Emperor, the authors of the French Report were particularly insistent on the creation of a new international tribunal. According to their view, this tribunal would apply a “new international law” and would be “able to deliver the most solemn judgment the world has ever heard”. ‘Anticipating’ the words of the International Military Tribunal (IMT) proffered three decades later (see infra Section II), the authors of the French Report had no doubt about the legitimacy of this new “international” way of punishing the German Emperor because, if the Allied countries had themselves the power to capture, prosecute and try certain crimes committed by a head of state, they “cannot cease” to have that power “if united”.

In short, according to the French Report, a head of state would not be entitled to invoke immunity before a newly created international court because he or she could not invoke immunity before a national court to begin with (interestingly, while analyzing this report, the appeals chamber of the ICC has recently chosen not to highlight this fact but – instead – conveyed the self-serving misleading idea that, according to the report, only an international tribunal in application of a “new international law” would be able to bypass the question of head of state immunity from foreign jurisdiction). 

Another important fact to highlight in the aftermath of the First World War is that the French delegation was one of the eight delegations to the Paris Peace Conference which – on March 29, 1919 – endorsed the following conclusion of the Report of the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties:

“The Commission desire[s] to state expressly that in the hierarchy of persons in authority, there is no reason why rank, however exalted, should in any circumstances protect the holder of it from responsibility when that responsibility has been established before a properly constituted tribunal. This extends even to the case of heads of states. An argument has been raised to the contrary based upon the alleged immunity and in particular the alleged inviolability, of a sovereign of a state. But this privilege, where it is recognized, is one of practical expedience in municipal law, and is not fundamental. However, even if, in some countries, a sovereign is exempt from being prosecuted in a national court of his own country the position from an international point of view is quite different” (emphasis added).

Not only was this conclusion deemed to be all encompassing – viz. applicable to any violation of the “laws and customs of war” or the “laws of humanity” committed by a sovereign – but, according to the delegations which subscribed it, head of state immunity privileges were apparently not even part of international law. Moreover, the expression “properly constituted tribunal” undoubtedly encompassed national courts (see also infra Section II).

France was also one of the thirty-two state-parties to the Treaty of Versailles, an international agreement which “has no trace of an immunity” for sitting or former heads of state or any other sitting or former high official of the state (here and here).  

II. French Contributions during and in the aftermath of the Second World War

During the Second World War, France was one of the sixteen members of the United Nations War Crimes Commission (Professor René Cassin was the French representative, and Professor André Gros his substitute). Hence, France was part of the efforts to prosecute Hitler while he was the sitting head of state of Germany. In that quality, as noted by Dan Plesch, Hitler was actually indicted on more than one occasion for conduct amounting to war crimes and crimes against humanity (the charges “in accordance with domestic laws […], the Hague Conventions and the Versailles list […] ranged from the extermination of the Jews through the illegality of Nazi courts to pillage”). The “bi-lateral indictments” made by Belgium, Czechoslovakia and Poland were then “endorsed” by the states members of the United Nations War Crimes Commission, including France (for a wealth of information unveiling the domestic indictments against Hitler and other senior Nazi officials, see here).

France was also one of the driving forces behind the adoption of the IMT Charter, and one of the four signatory powers which, acting “in the interests of all the United Nations”, adopted the the London Agreement for the Prosecution and Punishment of the Major War Criminals of European Axis (the IMT Charter was annexed to this agreement). One of the four judges of the IMT was French judge Henri Donnedieu Vabres. As explained in a previous post in this blog, for the IMT, no type of immunity privilege could prevent national courts from prosecuting a sitting or former head of state for aggression, war crimes and crimes against humanity. As support for this conclusion the following excerpt of the IMT’s Judgment is crucial:

“The principle of International Law, which under certain circumstances protects the representatives of a State, cannot be applied to acts which are condemned as criminal by International Law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings. Article 7 of the Charter expressly declares: ‘The official position of defendants, whether as heads of State, or responsible officials in government departments, shall not be considered as freeing them from responsibility, or mitigating punishment.’ On the other hand the very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual State. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorizing action moves outside its competence under International Law” (emphasis added).

Writing after the proceedings, none other than Vabres elucidated the gist of this excerpt. While considering that “international courtesy” is the “basis for the recognition of immunities of leaders and diplomats” and elaborating on French national immunity provisions, Vabres said:

“These provisions form the law of peacetime: they cease to apply in times of war because they have then lost their raison d’être, which is to maintain relations of courtesy. A monarch fallen in the hands of an enemy is treated by them just as any other prisoner would be […]. [W]hen values that are guarded by the universal community are at stake, not only are the rules of courtesy relegated to the background, but public order which is characterized by the reciprocal respect of each state’s independence vanishes in favour of the idea of a superior public order” (emphasis added).

            According to Vabres, this is the proper justification for Article 7 of the IMT Charter, and it is also what “inspired” the first two sentences of the IMT excerpt quoted above. For Vabres, immunity provisions do not bar heads of state from being subject to war crimes prosecutions in national courts. Heads of state are subject to such prosecutions in the same terms as normal prisoners of war are. Moreover, the expression “appropriate proceedings” used in the second sentence of the excerpt naturally encompasses national proceedings (for the IMT, the allies “have done together what any one of them might have done singly”). This interpretation of the expression “appropriate proceedings” is particularly manifest in the French version of the judgment, which states that the authors of international crimes “cannot invoke their official capacity in order to evade normal proceedings” (my translation and emphasis). At the time, as at the time of the French Report mentioned above, the normal proceedings in French courts concerning war-related prosecutions were proceedings before national military courts (see also London Agreement, art. 6: “Nothing in this Agreement shall prejudice the jurisdiction or the powers of any national or occupation court established or to be established in an allied territory or in Germany for the trial of war criminals”) (emphasis added).

III. Most Recent French Contributions

Considering that war crimes and crimes against humanity are undoubtedly “condemned as criminal by International Law”, the decision by a French court to issue an arrest warrant for Syria’s President Bashar al-Assad on account of such crimes is in line with the French contributions mentioned in the previous two sections. Nonetheless, some have suggested that such decision is not aligned with other recent decisions made by French authorities. For example, in Opinio Iuris, Miranda Lalla alluded to: (1) a prosecutorial decision dismissing a complaint against American Secretary of Defense, Donald Rumsfeld, “alleging his persisting customary immunity on the basis of his former title”; (2) a decision of the French Court of Cassation ruling against an order of the Court of Appeal of Paris in relation to the Libyan head of state, Muammar Gaddafi’s, which characterised the decision of the lower court as a “disregard” for the customary law on the immunity granted to foreign heads of state which has been “consistently recognized by international society”; and (3) a prosecutorial decision to dismiss a complaint against Zimbabwean president Robert Mugabe “on the grounds of Mugabe’s personal immunity as an acting head of state”.

True, all these decisions ultimately prevented prosecution on the basis of a functional immunity (first decision) or personal immunity (second and third decisions) of heads of state or other high officials. Notwithstanding, it might be of some import to note that none of these decisions concerned the three crimes (aggression, war crimes, and crimes against humanity) in relation to which the IMT rejected immunities. The first and third decisions concerned charges of torture under the 1984 Convention on Torture, and the second decision concerned terrorism, namely a charge of complicity in the destruction of property by the effect of an explosive substance leading to the death of others, in connection with a terrorist enterprise.

It is also true that – in relation to the first and the third prosecutorial decisions – it would be pure speculation to argue that immunity would not have been granted if the crime at stake was not torture, but one of the three crimes in relation to which the IMT rejected immunities. However – in the second decision – the French Court of Cassation only disagreed with the order of the Court of Appeal of Paris which rejected immunity precisely because of the nature of the crime. Consider its words:   

“[L]a coutume internationale s’oppose à ce que les chefs d’Etat en exercice puissent, en l’absence de dispositions internationales contraires […], faire l’objet de poursuites devant les juridictions pénales d’un Etat étranger […].[A]lors qu’en l’état du droit international, le crime dénoncé, quelle qu’en soit la gravité, ne relève pas des exceptions au principe de l’immunité de juridiction des chefs d’Etat étrangers en exercice, la chambre d’accusation a méconnu le principe susvisé […]”.

My translation: [I]n the absence of international provisions to the contrary […], customary law prevents heads of state in office from being prosecuted before the criminal courts of a foreign state […]. [C]onsidering that, at this stage of the development of international customary law, the crime charged, no matter how serious, does not fall within the exceptions to the principle of immunity from jurisdiction of foreign heads of state in office, the [Court of Appeal] has misunderstood the above-mentioned [immunity] principle (words in square brackets and emphasis added).

Implicitly or a contrario, the Court of Cassation is stating that there are exceptions to the principle of immunity from jurisdiction of foreign heads of state in office, but the crime charged is not one of them. As far as one can tell, those exceptions can only correspond (at the very least) to the three crimes in relation to which the IMT rejected immunities. If that is so, the current arrest warrant against the Syrian President issued by a French lower court is in alignment with the position on the matter of immunity adopted by Court of Cassation, which is the highest judicial authority in France.

Perhaps not coincidentally, these two French “judicial decisions” are also aligned with at least one of the “teachings” of one of France’s “most highly qualified publicists” (Article 38(1)d) of the ICJ Statute). Writing after the Arrest Warrant case, Allain Pellet – former president of the International Law Commission and one of the most renowned and respected international law French scholars – considered that the principle of state immunity cannot be an “obstacle” to holding individuals responsible for international crimes, “at the very least”, when at stake is a “crime against the peace and security of mankind”. As an echo of the IMT Judgment (particularly, of its French version) and of the words of Donnedieu Vabres, Pellet said:

“In spite of the most unfortunate ICJ judgment in the Arrest Warrant case, I maintain that in such a situation, the state becomes ‘transparent,’ so that the officials who acted in its name cannot take refuge behind their ‘immunities’” (emphasis added).

Final Remarks

Most of the French contributions surveyed in this post might be viewed as “evidence” of a French “practice accepted as law” (Article 38(1)b) of the ICJ Statute) to the effect that there is no head of state immunity with regard to the crimes underlying the charges against Syria’s President Bashar al-Assad, viz. war crimes and crimes against humanity. This practice is in line with what Claus Kress has aptly suggested to be the non-immunity “Nuremberg legacy” (albeit only focusing on functional immunities).

However, the French government’s most recent stance on the issue is apparently at odds with that practice. In its Comments and Observations to the Draft Articles of the International Law Commission on the “Immunity of State officials from foreign criminal jurisdiction”, the French government unequivocally sided with the absolute personal immunity position for heads of state adopted in the Arrest Warrant. These comments and observations by states were due to be submitted to the International Law Commission by 1 December 2023. Although there is no submission date in the French document, it is safe to assume that it was submitted (or, at least, drafted) before last November’s warrant against Bashar al-Assad had been issued (there is no mention of the warrant in the document).

Also, while the French government alludes to several decisions of French courts – including, a 2021 decision of the Court of Cassation relating to torture which states that such crime “does not fall within the exceptions to the principle of immunity from jurisdiction” – it neither mentions the position of the French Court of Cassation mentioned in the previous section nor any other of the French contributions surveyed in this post.

Nevertheless, there can be no doubt that such comments and observations by the French government are also now part of French practice and opinio iuris. Moreover, the French practice surveyed in the previous sections obviously does not amount to a “general practice” of states (Article 38(1)b) of the ICJ Statute). Therefore, one might certainly argue – as André de Hoogh has recently argued in this blog – that, “in the current state of international organization, resistance to personal immunities is futile!”.

Following an old national tradition, the French courts at least are still resisting and arguing otherwise. The decision to issue an arrest warrant against the Syrian President is currently under appeal. Whether France’s superior judicial authorities will insist on this French “resistance”, which pays due homage to the Nuremberg non-immunity legacy, or will finally succumb to the alleged “current state of international organization” remains to be seen.   

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