Immunity of Heads of State on the Retreat

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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.”

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nerina boschiero says

January 11, 2016

I cannot but agree with you, Ramona, on the non immunity of sitting Heads of State charged with international crimes before the ICC.

On the very sad history of Al Bashir's escape to justice maybe you might be interested in what I've written on the OUPblog.

More generally, on the "No Immunity" for Al Bashir, based on the UNSC referral (Resolution 1593), I signal also my recent article published J Int Criminal Justice (2015) 13 (3): 625-653.

Phoebe Murungi says

January 11, 2016

I was similarly dismayed by the quick assumption that the frequent borrowing of this book was attributable to foresighted criminal dictators committed to dodging international criminal prosecution.

I believe instead that the stalemate between the AU and the ICC over the Al Bashir case, and the heightened tensions caused by his attempted? arrest in South Africa led to the development of increased interest in the often controversial HoS immunity question;but again, I too, am merely speculating.

My concern, Ramona, arises when you aver that customary law does not permit a sitting HoS prosecution by a foreign domestic court and contrast that with the situation before international criminal courts generally. I notice that you specifically hesitate to refer to a rule of international customary law to that effect and instead refer to a "matter of principle".

Is this "situation" before international criminal courts that excludes immunity for sitting HoS a rule of international customary law or a matter of practice? It appears that only the ICC has so far expressly excluded the application of all forms of immunity of sitting HoS before it.


Ramona Pedretti says

January 11, 2016

Phoebe, Ezéchiel,

Thank you very much for your remarks and questions. Since they both concern the issue of immunity of Heads of State before international criminal tribunals, and the ICC in particular, I would like to respond to them together.

In respect of the ICC, art. 98(1) of the Rome Statute provides that the Court may not proceed with a request for surrender if that would require the requested State to disregard its international obligations relating to immunity of foreign State representatives unless a waiver of immunity can first be obtained. As my study shows, immunity ratione materiae is not available to former Heads of State or other State officials under customary international law for crimes pursuant to international law. Therefore, the ICC, provided that it has jurisdiction, can always proceed with its request for arrest and surrender of an official of a State party or non-State party since it does not require the requested State to breach its international obligations.

In respect of immunity ratione personae, to which Heads of State in office are entitled, the book claims that this mode of immunity persists under customary international law. Yet, State parties, by ratifying the Rome Statute, consent to waive any immunity under international law that may impede the Court in its exercise of jurisdiction (art. 27 of the Rome Statute). This waiver of immunity enables the ICC to proceed with its request under art. 98(1) of the Rome Statute and serves as a basis for the requested State party to arrest and surrender the wanted foreign Head of State of another State party. Similarly, if the UN Security Council refers a specific situation within a non-State party to the ICC, the Rome Statute, including its immunity-removing clause, applies to that State. A waiver of immunity ratione personae is imposed on that State in the meaning of the last part of art. 98(1) of the Rome Statute.

The study thus argues that the State’s (imposed) consent to waive immunity ratione personae has to be considered as a treaty-based exception to the general rule of customary international law. More information is provided under Chapter 5 of the book (p. 272-303).

Ezéchiel Amani Cirimwami says

January 11, 2016

I do agree that Bashir had escaped! Simply the South African Republic had held that the Article 98 of the Rome Statute does not allow him to violate the immunities which he was covered as Head of State of a third State.
I have not yet read your book! I would be glad to know wich lecture you did between the Articles 27 and 98 (1) of the Rome Statute, dealing respectively with the lack of immunity resulting from official capacity with respect to the ICC and the prohibiting the latter to request a State to execute an arrest warrant that would require it to violate its obligations immunity against a person or property of a third State

Ramona Pedretti says

January 11, 2016

Ezéchiel, please see my resonse posted to Phoebe's question.

Jordan says

January 11, 2016

The ICJ recognized that sitting elites can be prosecuted in international criminal tribunals, as one was before the IMT at Nuremberg.
I like the book by Ellen L. Lutz & Caitlin Reiger, Prosecuting Heads of State (2009). Please see my update of prosecutions in
Personally, I thought the dissent in the Belgian v. Congo case was the better view.
Article 27(1) of the Rome Statute is consistent with the better view.

Ezéchiel Amani Cirimwami says

January 12, 2016

Thank you for your answer and the clarifications which you give? However, I would want to have your apprehension about about a development done in your answer: The fact for the Security Council to summon the case to the ICC is it a possibility for the head state of a non part country to lose the immunities which he is covered under customary international law? Do you have a precedent that can confirm it?

Kriangsak Kittichaisaree says

January 13, 2016

This year the ILC is likely to discuss 'exceptions' to the Immunity of State Officials from Foreign Criminal Jurisdiction, including that of the heads of State/Govt., Foreign Ministers al al. Several States have made it clear in the 6th Committee of the UNGA that they want the ILC to specify whether each of the draft articles on this topic reflects customary IL or is merely progressive development of IL.

The ILC will have to bear in mind the ICJ judgment in the Germany v. Italy case re: the methodology to find rules of customary IL in light of 'trends' in scholarly thinkings.

Roger O'Keefe says

January 14, 2016

Dear Ramona and correspondents
First, congrats, Ramona, on the popularity of your book, for your kind gift of which thanks so much again.
Secondly, at the embarrassing risk of nauseating self-promotion, allow me to lob this into the immunities debate:“international-crime”-exception-immunity-state-officials
Even better [sic], I invite to you to read the detailed account and analysis of the topic in chapter 10 of my recent book, International Criminal Law (OUP, 2015). In the words of my niece, just sayin'.
All the best

Roger O'Keefe says

January 14, 2016

PS Whoops, please see also the bit in chapter 3 of my book International Criminal Law (OUP, 2015) on immunities before international criminal courts and tribunals.