On December 31st, the United Nations Dag Hammarskjöld Library tweeted that its most popular item of 2015 was my book entitled “Immunity of Heads of State and State Officials for International Crimes”.
The tweet immediately led to an intense controversy on Twitter and to a number of articles (here or here). Many commentators suggested that the book has been popular because diplomats were looking for ways to protect themselves or their bosses. Some also claimed that it was a poor sign for the United Nations. The news website Vox wrote: “The UN is full of delegates representing awful dictatorships, and the book that got checked out the most from the UN library was about … how to be immune from war crimes prosecution. That does not seem like a good thing!”
Numerous commentators jumped to the conclusion that the book was some sort of recipe to escape prosecution for international crimes. But in fact, rather than for criminal dictators, the book is for committed prosecutors and judges. In particular, it contains a detailed analysis of the relevant customary international law. While most publications on this issue refer to a very limited number of well-known cases (such as the Eichmann, Pinochet and Arrest Warrant cases), “Immunity of Heads of State and State Officials for International Crimes” identifies the applicable customary rules based on hundreds of judgments and national laws from all over the world.
The main conclusion of this evaluation is that former Heads of State and other State officials do not benefit from immunity when charged with international crimes before foreign national courts. Hence, prosecutors and judges now have a solid basis to resolutely act against these State officials. In contrast, acting Heads of States cannot be prosecuted in national courts abroad according to customary international law. However, before international criminal tribunals the situation is different: As a matter of principle, both acting and former Heads of State cannot rely on immunity when charged with international crimes in those fora. Before the International Criminal Court, for instance, no immunity can bar proceedings against officials from member States or States subject to a UN Security Council referral (currently Sudan and Libya).
The book is thus in fact an unpleasant read to war criminals and an encouraging one to those who go after them.
Of course, all interpretations as to why the book was frequently borrowed are speculative. In my opinion, the borrowings reflect the interest in the subject stimulated in 2015 in particular by the escape of Sudanese President, Omar Al-Bashir, from South Africa and the work of the United Nations International Law Commission on compiling draft articles on immunity of State officials from foreign criminal jurisdiction.
As documented in my book, immunity of Heads of State is on the retreat. Victims of the most serious crimes have an improved perspective to see justice for crimes by the highest State officials. Or as Kenneth Roth, Executive Director of Human Rights Watch, put it on Twitter: “Some abusive heads of state must be worried.”