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A CRITIQUE OF THE DEMISE OF HEADS OF STATE
IMMUNITY IN THE AGE OF HUMAN RIGHTS*
SELMAN OZDAN**
Abstract: This paper presents an unspoken aspect of Head of State immunity, namely that such immunity
is at odds with the expectation that international law should be applied to challenge resistance to and
promote respect for human rights. It considers the question of whether Head of State immunity gives rise
to de facto impunity in the case of violations of human rights recognised as peremptory norms (jus cogens)
committed by such Heads of State. While this paper emphasises the critical role of Head of State immunity
in the context of international relations, it argues that Heads of State should not exempt from punishment
when violations of those human rights are at stake.
Keywords: Head of State, immunity, impunity, human rights, peremptory norms.
Summary: I. INTRODUCTION; II. DEVELOPMENTS OF HEAD OF STATE IMMUNITY IN
INTERNATIONAL LEGAL SYSTEM; III. THE PROBLEM OF HEAD OF STATE IMMUNITY IN
RELATION TO VIOLATIONS OF HUMAN RIGHTS RECOGNISED AS PEREMPTORY NORMS; IV.
PROTECTION OF HUMAN RIGHTS VS. HEAD OF STATE IMPUNITY; V. CONCLUSION; VI.
REFERENCES
I. INTRODUCTION
State officials have traditionally been immune from the jurisdiction of foreign
States’ courts when they would otherwise be required to account for the deeds they are
accused of committing. However, this authoritative principle of international law
becomes contentious in cases involving the violation of human rights recognised as
peremptory norms, most strongly represented by the growth of international human rights
law and the establishment of international tribunals and courts determined to end
impunity for violations of those human rights, irrespective of the perpetrators’ official
position.1 Increasing concern for international human rights and greater international
support for abolishing impunity for violators of those human rights have led the
international community to question the boundaries of Head of State immunity.
* This article is based on Asst. Prof. Dr. Selman Ozdan’s PhD dissertation which was conducted under the
supervision of Prof. Jean Allain at Queen’s University Belfast.
** Asst. Prof. Dr. in Public International Law at Erciyes University School of Law (Turkey).
(selmanozdan@erciyes.edu.tr) He holds Ph.D. (2016) in Law from Queen’s University Belfast School of
Law (United Kingdom) and LL.M. with Honors (2011) from Case Western Reserve University School of
Law (Cleveland OH USA). He is a member of the Society of Legal Scholars (SLS) and Case Western
Reserve University Law Alumni Association. ORCID ID: https://orcid.org/0000-0002-1002-0625
1 Hazel Fox QC and Philippa Webb, The Law of State Immunity (3rd edn, Oxford University Press 2013)
537.
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There were great expectations that international law would evolve in favour of
international human rights after the Second World War. These expectations undoubtedly
continue. It would be a fantasy to imagine that international law always works in favour
of human rights; however, there is a definite trend within the international community to
seek to enhance and support international human rights. Head of State immunity appears
to be a considerable impediment to realising the expectation that international law can be
used to challenge resistance to respect for human rights and to ending impunity. In this
sense, impunity ‘must be distinguished from immunity; the two terms must not be used
interchangeably’.2 Immunity is a general rule of international law ‘whereby certain State
officials are deemed to be endowed with immunity from criminal prosecution and civil
suits initiated in foreign States. Impunity can be described as exemption from penalty or
punishment. When the sovereign immunity principle is applied to the practice of
sovereign impunity, individuals, who have administrated and participated in fundamental
human rights violations, are often beyond the capacity of the law to provide a remedy’.3
This paper examines the tension between the principle of Head of State immunity
and the protection of human rights recognised as peremptory norms under general
international law. It considers the developments under international law in respect of the
rules regarding such immunity. This paper subsequently discusses and analyses immunity
and impunity for Heads of State when violations of human rights recognised as
peremptory norms are perpetrated. To engage with this discussion, the paper concentrates
on the judgement of the International Court of Justice in Arrest Warrant of 11 April 2000
(Democratic Republic of the Congo v Belgium) so as to criticise the issue of immunity in
question. Towards that end, the paper considers the question of whether Head of State
immunity, in effect, means Head of State impunity in cases involving the violation of
human rights recognised as peremptory norms. Here, the central aim of the paper is to
argue that Head of State immunity leads to de facto impunity in the case of violations of
those human rights. Finally, regarding the language of this paper, when the phrase
fundamental human rights is used, it signifies or reads as human rights recognised as
peremptory norms of general international law.4
2 Selman Ozdan, ‘Immunity vs. Impunity in International Law: A Human Rights Approach’ (2018) 4 Baku
State University Law Review 36, 52.
3 ibid 42. See also generally Jacques Fomerand, Historical Dictionary of Human Rights (Rowman &
Littlefield 2014); Kingsley Chiedu Moghalu, ‘Reconciling Fractured Societies: An African Perspective on
the Role of Judicial Prosecutions’ in Ramesh Chandra Thakur and Petrus Adrianus Maria Malcontent (eds),
From Sovereign Impunity to International Accountability: The Search for Justice in a World of States
(United Nations University Press 2004).
4 Human rights recognised as peremptory norms includes the prohibitions against slavery or slave trade;
genocide; torture or other cruel, inhuman, or degrading treatment or punishment; murder or disappearance
of individuals; systematic racial discrimination; prolonged arbitrary detention; and the principles of the
United Nations Charter prohibiting the use of force. See Yousuf v Samantar (2012) 699 F 3d 763 (Court of
Appeals, 4th Circuit) 775–76; Evan J Criddle and Evan Fox-Decent, ‘A Fiduciary Theory of Jus Cogens’
(2009) 34 Yale Journal of International Law 331.
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II. DEVELOPMENTS OF HEAD OF STATE IMMUNITY IN INTERNATIONAL
LEGAL SYSTEM
The concept of Head of State immunity was explicitly and conceptually located
in the 1987 In re Grand Jury Proceedings, Doe No. 770, in which the US Court of Appeals
for the Fourth Circuit stated that Head of State immunity ‘is a doctrine of customary
international law. Generally speaking, the doctrine maintains that a head of state is
immune from the jurisdiction of a foreign state’s courts, at least as to authorised official
acts taken while the ruler is in power’.5
In simple terms, the principle of immunity has been instituted to protect a State
and its senior officials from being sued before its courts and particularly foreign courts,
so that they can carry out their activities abroad without impediment. Since immunity
from prosecution and execution is based upon the sovereign equality principle of States,
this principle does not prevent senior State officials from being indicted before an
international court as long as this court is vested in jurisdiction over serving or former
Heads of State.6
Prior to 1919, there was little discussion of immunity for Heads of State before
international tribunals or courts, as the issue had been all but taboo with regard to any
waiver of such immunity. However, the Versailles Treaty, which is generally accepted as
the first indictment of a former Head of State before an international tribunal, is seen by
many as breaking this taboo. On this point, Article 227 of the Treaty reads as follows:
The Allied and Associated Powers publicly arraign William II of Hohenzollern
[The Kaiser], formerly German Emperor, for a supreme offence against
international morality and the sanctity of treaties. A special tribunal will be
constituted to try the accused, thereby assuring him the guarantees essential to the
rights of defence. It will be composed of five judges, one appointed by each of the
following powers: namely, the United States of America, Great Britain, France,
Italy and Japan. In its decision the tribunal will be guided by the highest motives
of international policy, with a view to vindicating the solemn obligations of
international undertakings and the validity of international morality. It will be its
duty to fix the punishment which it considers should be imposed. The Allied and
Associated Powers will address a request to the Government of the Netherlands
for the surrender to them of the ex-Emperor in order that he may be put on trial.7
5 In re Grand Jury Proceedings [1987] United States Court of Appeals, Fourth Circuit 700, 1108 817 F2d
1111. For a private visit to another State, Sir Arthur Watts stated that although ‘it may well be that a Head
of State, when on a private visit to another State, still enjoys certain privileges and immunities, it is much
less likely that the same is true of heads of governments and foreign ministers. Although they may be
accorded certain special treatment by the host State, this is more likely to be a matter of courtesy and respect
for the seniority of the visitor, than a reflection of any belief that such a treatment is required by international
law’. Sir Arthur Watts, The Legal Position in International Law of Heads of States, Heads of Governments
and Foreign Ministers, vol 247 (Martinus Nijhoff Publishers 1994) 109.
6 Brigitte Stern, ‘Immunities for Heads of State: Where Do We Stand?’ in Mark Lattimer and Philippe
Sands (eds), Justice for Crimes Against Humanity (Hart Publishing 2003).
7 Peace Treaty of Versailles 1919 Article 227.
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However, the Kaiser was never tried. Before Armistice Day, the Kaiser fled to the
Netherlands and asylum was granted to him by the Dutch government who refused to
hand him over for trial.8 After the Treaty of Versailles, the issue of immunity for Heads
of State was challenged through the Statutes of the Nuremberg and Tokyo international
military tribunals. Article 7 of the Charter of the Nuremberg Tribunal declared that the
‘official position of defendants, whether heads of state or responsible officials in
Government Departments, shall not be considered as freeing them from responsibility or
mitigating punishment’.9 A number of significant developments in international law have
taken place whose outcome has been to restrict Head of State immunity in the interest of
securing and maintaining fundamental human rights. The Nuremberg Principles include
the assertion that the ‘fact that a person who committed an act which constitutes a crime
under international law acted as Head of State or responsible Government official does
not relieve him from responsibility under international law’.10 In a similar vein, Article 6
of the Statute of the Tokyo Tribunal declared that:
Neither the official position, at any time, of an accused, nor the fact that an accused
acted pursuant to order of his government or of a superior shall, of itself, be
sufficient to free such accused from responsibility for any crime with which he is
charged.11
In respect of both statements by international military tribunals, international law
unequivocally protects State officials and provides immunity; however, in particular
circumstances immunity for Heads of State cannot be invoked if his or her deeds
constitute a violation of fundamental human rights. If violations of those human rights
are at stake, the official position of a Head of State should not serve as a shield to avoid
punishment. Immunity should apply only to sovereign acts; therefore, Heads of State
should not enjoy functional immunity in relation to violations of fundamental human
rights. Functional immunity provides protection for sovereign acts; however, acts which
cause fundamental human rights violations should not be deemed as sovereign acts.12
Concerning individual criminal responsibility, it is clear that the statutes of the
International Criminal Tribunal for the Former Yugoslavia and the International Criminal
Tribunal for Rwanda are considered important developments in terms of clarifying the
position of Head of State immunity in relation to international crimes that give rise to
fundamental human rights violations. Both statutes emphasise that Heads of State should
not benefit from immunity. Article 7(2) of the Statute of the International Criminal
Tribunal for the Former Yugoslavia provides that the ‘official position of any accused
8 See Gary D Solis, The Law of Armed Conflict: International Humanitarian Law in War (Cambridge
University Press 2010) 74.
9 ‘Nuremberg Trial Proceedings Vol. 1 - Charter of the International Military Tribunal’ Article 7.
10 ‘Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the
Judgment of the Tribunal, 5 UN GAOR Supp. (No. 12) at 11, U.N. Doc. A/1316’ Principle 3.
11 ‘International Military Tribunal for the Far East Charter’ (1946) Article 6.
12 RA Kolodkin, ‘Second Report on Immunity of State Officials from Foreign Criminal Jurisdiction, 62nd
Session’ (International Law Commission 2010) UN Doc. A/CN.4/631 para 28, 29, 30 and 31; Dapo Akande
and Sangeeta Shah, ‘Immunities of State Officials, International Crimes, and Foreign Domestic Courts’
(2010) 21 European Journal of International Law 815.
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person, whether as Head of State or Government or as a responsible Government official,
shall not relieve such person of criminal responsibility nor mitigate punishment’.13 Article
6(2) of the Statute of the International Criminal Tribunal for Rwanda reiterates this
statement. In so doing, this provision acknowledges that perpetrators of human rights
violations, regardless of their official position, cannot hide behind the shield of immunity;
and that Heads of State enjoy no impunity. Furthermore, in the case of Prosecutor v
Blaskic, the Appeal Chamber of the Yugoslavia Tribunal highlighted that:
The general rule under discussion is well established in international law and is
based on the sovereign equality of States (par in parem non habet imperium). The
few exceptions relate to one particular consequence of the rule. These exceptions
arise from the norms of international criminal law prohibiting war crimes, crimes
against humanity and genocide. Under these norms, those responsible for such
crimes cannot invoke immunity from national or international jurisdiction even if
they perpetrated such crimes while acting in their official capacity.14
In a similar vein, Article 27 of the Rome Statute embodies provisions which
indicate that the Statute applies to all individuals regardless of their official position
within a State:
This Statute shall apply equally to all persons without any distinction based on
official capacity. In particular, official capacity as a Head of State or Government,
a member of a Government or parliament, an elected representative or a
government official shall in no case exempt a person from criminal responsibility
under this Statute, nor shall it, in and of itself, constitute a ground for reduction of
sentence.
Immunities or special procedural rules which may attach to the official capacity
of a person, whether under national or international law, shall not bar the Court
from exercising its jurisdiction over such a person.15
The essential purpose of the incorporation of these provisions into the Rome
Statute and ad hoc tribunals is to ensure individual criminal responsibility for all persons,
and particularly Heads of State, who perpetrate violations of fundamental human rights
which constitute international crimes. Furthermore, by ensuring individual criminal
responsibility, those provisions prevent certain persons from using their official position
as a shield against prosecution for those human rights violations.
Article 98(1) of the Statute of the International Criminal Court goes beyond States
party to the Statute. Article 98(1), which is concerned with cooperation with respect to
the waiver of immunity and consent to surrender, reads as follows:
13 UN Security Council, Statute of the International Criminal Tribunal for the Former Yugoslavia, SC res.
827, UN SCOR 48th sess., 3217th mtg. at 1-2 1993 Article 7(2).
14 Prosecutor v Tihomir Blaskic [1997] 110 ILR 687 (International Criminal Tribunal for the Former
Yugoslavia) 710.
15 ‘Rome Statute of the International Criminal Court’ (UN General Assembly 2002) Article 27(1),(2).
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The Court may not proceed with a request for surrender or assistance which would
require the requested State to act inconsistently with its obligations under
international law with respect to the State or diplomatic immunity of a person or
property of a third State, unless the Court can first obtain the cooperation of that
third State for the waiver of the immunity.16
Articles 27 and 98(1) of the Rome Statute might be seen as contradictory in that
the former rejects immunities while the latter endorses immunities. However, article
98(1) addresses a particular situation in which a State party to the Statute is required to
surrender a person who is jurisdictionally untouchable by virtue of the immunities granted
by a third State. In this sense, this case can be described as an equation with three knowns
(a State Party, the Statute, and a person endowed with immunities), although it would
appear that the equation always produces a tangled outcome for the State to whom the
request is made. Specifically, the State Party to the Statute either must breach its
obligation to meet the requirements of the Court or must breach its commitment to abide
by immunities of a State that is not party to the Statute. The interaction between Articles
27 and 98(1) of the Statute thereby establishes a system wherein the State Parties to the
Statute consent to surrender all immunity rights in relation to the Court’s requirements
regarding their own State officials or representatives, while still abiding by the
immunities of States that are not yet party to the Statute.17
Ultimately, Article 98(1) of the Statute implies three situations where the
immunities bestowed on a person by a State that is not a party to the Statute can be
trumped. First, if a State that is not a party to the Statute agrees to relinquish the immunity,
the person can be prosecuted. Second, if the State official is no longer in office, the
official’s personal immunity ends (although functional immunity can still be enjoyed),
thus enabling the official to be prosecuted for committed violations of human rights.
Third, if the United Nations Security Council requests full participation under Chapter
VII, the State which is not a party to the Statute automatically is deprived of its immunity
rights, and must surrender the accused.18
16 ibid Article 98(1).
17 See for detailed analyses on the interplay of Articles 27 and 98(1) of the International Criminal Court
Statute Paola Gaeta, ‘Official Capacity and Immunities’ in Antonio Cassese, Paola Gaeta and John RWD
Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, vol I (Oxford University
Press 2002); Dapo Akande, ‘The Legal Nature of Security Council Referrals to the ICC and Its Impact on
Al Bashir’s Immunities’ (2009) 7 Journal of International Criminal Justice 333.
18 Robert Cryer and others, An Introduction to International Criminal Law and Procedure (2nd edn,
Cambridge University Press 2010) 556. For the relationship between the International Criminal Court and
UN Security Council with regards to the issue of waiving immunity, see Akande (n 17); Cryer and others
549–557.
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III. THE PROBLEM OF HEAD OF STATE IMMUNITY IN RELATION TO
VIOLATIONS OF HUMAN RIGHTS RECOGNISED AS PEREMPTORY NORMS
In international law, a number of prominent decisions have bearing on the tension
between vesting immunity in the Head of State and the protection of human rights
recognised as peremptory norms.19 In analysing Head of State immunity in the context of
human rights violations, the Arrest Warrant of 11 April 2000 (Democratic Republic of
the Congo v Belgium) case is important, particularly in relation to the question of whether
or not Head of State immunity equates to Head of State impunity in such cases. Heads of
State sometimes enjoy considerable leeway to escape from proceedings in respect of
human rights violations. In this sense, the concept of immunity is sometimes ‘wrongfully
utilised to signify that a person benefits from impunity or is not prosecuted, for reasons
other than the technical legal bar of immunity’.20
That said, the perspective of the International Court of Justice for Mr Yerodia
raises the issue of immunity or impunity for Heads of State when violations of
fundamental human rights are perpetrated. In the Arrest Warrant case, Belgium argued
that immunities accorded to incumbent Foreign Affairs Ministers cannot, under any
circumstances, provide the minister with protection where he or she is suspected of having
perpetrated violations of fundamental human rights. Subsequently, Belgium touched
upon the question of whether a person’s high-level status within a State constitutes an
impediment to prosecution. On this point, Belgium claimed that the official position of a
person should not be an obstacle to applying jurisdiction. On 11 April 2000, an
international arrest warrant was issued by a Belgian investigating judge of the Brussels
Tribunal of First Instance against Abdulaye Yerodia Ndombasi, the Minister for Foreign
Affairs of the Democratic Republic of the Congo (DRC), in respect of alleged crimes
against humanity and violations of international humanitarian law. Mr Yerodia was
accused of having made some speeches that incited racial hatred and occasioned the
massacre of Tutsi civilians in 1998. Mr Yerodia was charged by the Belgian judge with
grave breaches of the International Geneva Conventions of 1949 and of their Additional
Protocols I and II of 1977. The arrest warrant for Mr Yerodia was transferred to the
Democratic Republic of the Congo and concurrently circulated at the international level
19 Strictly speaking, the suit against the former President of Chile Augusto Pinochet by the UK House of
Lords in 1998 and 1999 was a significant in international law as Pinochet could not claim immunity for
acts of torture for which he was responsible. Although it might have been ruled on narrow grounds, this
important decision appears to have marked the end of immunity in cases involving violations of
fundamental human rights by a former Head of State, even when those violations were committed while
the Head of State was in office. Michael Tunks, ‘Diplomats or Defendants? Defining the Future of Head-
of-State Immunity’ (2002) 52 Duke Law Journal 651, 659; Ingrid Wuerth, ‘Pinochet’s Legacy Reassessed’
(2012) 106 The American Journal of International Law 731; see Charles Pierson, ‘Pinochet and the End of
Immunity: England’s House of Lords Holds That a Former Head of State Is Not Immune for Torture’ (2000)
14 Temple International and Comparative Law Journal 263. For the Pinochet decision see R v Bow Street
Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No 1) (1998) 4 AII ER (House
of Lords); R v Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No
2) (1999) 2 W.L.R. 272 (House of Lords); R v Bow Street Metropolitan Stipendiary Magistrate and Others,
ex parte Pinochet Ugarte (No 3) (2000) 1 A.C. 147 (House of Lords).
20 Stern (n 6) 81.
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via Interpol. Ultimately, Belgian authorities brought a suit against Mr Yerodia based on
the Belgian Law of 16 June 1993, concerning the punishment of grave breaches of the
Geneva Conventions and their Additional Protocols, which provides a basis for universal
jurisdiction in regard to such violations. Article 5(3) of the Belgian Law also provides
that the immunity enjoyed by a person who acts in an official capacity does not create
any obstacle to the application of the law.21
On 17 October 2000, the Democratic Republic of the Congo filed an application
with the International Court of Justice instituting proceedings against the Belgian
Kingdom in relation to the case involving this international arrest warrant. In making the
Application, the Democratic Republic of the Congo relied on two legal grounds. First, the
Democratic Republic of the Congo asserted that Belgium had violated its obligation to
respect the immunity of the Minister of Foreign Affairs of a sovereign State. Second, the
Democratic Republic of the Congo alleged that Belgium had breached the principle that
a State cannot exercise its authority over another State’s territory and the principle of
sovereign equality of States. On this point, the Democratic Republic of the Congo claimed
that the ‘universal jurisdiction that the Belgian State attributes to itself under Article 7 of
the law in question’ does not comply with the principle of sovereign equality. The heart
and soul of the argument of the Democratic Republic of the Congo concerned the
violation of customary international rule in relation to the absolute immunity and
inviolability of incumbent Foreign Ministers from criminal jurisdiction. Arguing that
Belgium had infringed the sovereign equality principle of States, the Democratic
Republic of the Congo requested that the International Court of Justice require Belgium
to declare its international arrest warrant null and void.22 The Democratic Republic of the
Congo insisted that Belgium had no jurisdiction under international law to issue and
circulate an international arrest warrant, and that by doing so it had breached the rights of
the Democratic Republic of the Congo to perform and conduct its foreign affairs through
its foreign minister.23
Belgium pointed to the decision rendered on 24 March 1999 by the House of Lords
in the United Kingdom in relation to the former head of State of Chile, General Augusto
Pinochet Duarte, which recognised and accepted an exception to the principle of
immunity in respect of violations of fundamental human rights under international law.
21 See the Judgment of Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium)
(2002) I.C.J. Reports; See generally Matthias Goldmann, ‘Arrest Warrant Case (Democratic Republic of
the Congo v Belgium)’, Max Planck Encyclopedia of Public International Law (MPEPIL) (Oxford
University Press 2009); see for the mentioned article Belgium: Act of 1999 Concerning the Punishment of
Grave Breaches of International Humanitarian Law 1999.
22 See Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) (n 21) [1, 21, and
62]. Article 7 of the Act of 1999 Concerning the Punishment of Grave Breaches of International
Humanitarian Law is about competence, applicable procedure and the execution of sentences. It states that
the ‘Belgian courts shall be competent to deal with breaches provided for in the present Act, irrespective of
where such breaches have been committed’. Belgium: Act of 1999 Concerning the Punishment of Grave
Breaches of International Humanitarian Law (n 21).
23 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) (n 21); see also
Alexander Orakhelashvili, ‘Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v.
Belgium)’ (2002) 96 American Journal of International Law 677.
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According to Belgium, the holding in the Pinochet No 3 case advanced the
development of international law by acknowledging an important exception to the
principle of immunity for Heads of State or Government.24 Belgium accordingly referred
to a statement by Lord Millett that international law ‘cannot be supposed to have
established a crime having the character of a jus cogens and at the same time to have
provided an immunity which is co-extensive with the obligation it seeks to impose’.
Belgium also cited the words of Lord Phillips of Worth Matravers that ‘no established
rule of international law requires state immunity ratione materiae to be accorded in
respect of prosecution for an international crime’.25
The Democratic Republic of the Congo, following Belgium’s argument
concerning the Pinochet decision, emphasised that according to international law as it
currently stands, there was no basis for any exception to the principle of Head of State
immunity from criminal jurisdiction for a standing Minister of Foreign Affairs where she
or he is accused of having perpetrated fundamental human rights violations under
international law. The Democratic Republic of the Congo, by cross-referencing the
Pinochet decision, emphasised Lord Browne-Wilkinson’s statement that this ‘immunity
enjoyed by a head of state in power and an ambassador in post is a complete immunity
attached to the person of the head of state or ambassador and rendering him immune from
all actions or prosecutions whether or not they relate to matters done for the benefit of the
state’.26 Here, the focus is on whether the accused is an incumbent or a former Head of
State rather than the gravity of their alleged crimes. The Democratic Republic of the
Congo argued that the immunity ‘accorded to Ministers for Foreign Affairs when in office
covers all their acts, including any committed before they took office, and that it is
irrelevant whether the acts done whilst in office may be characterized or not as official
acts’.27
The International Court of Justice examined the decision of the House of Lords in
the Pinochet case but found that there was no applicable exception to the rule of Head of
State immunity from criminal jurisdiction; moreover, it found that current Ministers of
Foreign Affairs are particularly inviolable where they are suspected of having perpetrated
violations of fundamental human rights. Accordingly, the Court rejected the Belgian
argument in relation to the Pinochet decision by the House of Lords.28
Belgium’s approach in the Democratic Republic of the Congo v Belgium case can
be regarded as an important step towards the objective of abolishing impunity for
perpetrators of fundamental human rights violations. On this point, Belgium pointed out
that:
24 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) (n 21) [56].
25 R v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No. 3) (n
19) 278 and 289; see also Reed Brody and Michael Ratner (eds), The Pinochet Papers: The Case of Augusto
Pinochet Ugarte in Spain and Britain (Kluwer Law International 2000) 346.
26 R v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No. 3) (n
19) 201–202.
27 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) (n 21) [47].
28 ibid 58–59.
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[W]hile Ministers for Foreign Affairs in office generally enjoy an immunity from
jurisdiction before the courts of a foreign State, such immunity applies only to acts
carried out in the course of their official functions, and cannot protect such persons
in respect of private acts or when acting otherwise than in the performance of their
official functions.29
The International Court of Justice stated that it is bound ‘to find that, given the
nature and purpose of the warrant, its mere issue violated the immunity which Mr Yerodia
enjoyed as the [Democratic Republic of] the Congo’s incumbent Minister for Foreign
Affairs’. The Court therefore decided that the warrant issue led to a violation of Belgium’s
obligation towards the Democratic Republic of the Congo, in that Belgium failed to
respect Head of State immunity. According to the Court, Belgium also breached the
immunity from criminal jurisdiction under international law.30 It follows that the principle
of immunity for an incumbent Head of State is still prevalent and alive, even in respect
of violations of fundamental human rights prohibited under international law. In respect
of the distinction between immunity and impunity bestowed on Heads of State, the
International Court of Justice underscored that the immunity from jurisdiction enjoyed by
Heads of State in power does not mean that they can benefit from impunity with reference
to any violations they may have perpetrated, regardless of their seriousness. ‘Immunity
from criminal jurisdiction and individual criminal responsibility are quite separate
concepts. While jurisdictional immunity is procedural in nature, criminal responsibility
is a question of substantive law’. The Court added that while jurisdictional immunity may
become an obstacle to prosecution for definite offences or for a definite period, ‘it cannot
exonerate the person to whom it applies from all criminal responsibility’.31
The Court implied that the immunities provided by international law for a current
or former Head of State do not constitute an impediment to criminal prosecution in
particular circumstances. Subsequently, the Court observed four exceptional situations to
Head of State immunity under international law. Although the judgment of the
International Court of Justice implied that the immunity from jurisdiction enjoyed by
Heads of State does not equate to impunity for international crimes, the exceptions to
Head of State immunity outlined by the Court become insufficient to abolish impunity.
First, the Court stated that a Head of State does not enjoy immunity under
international law from criminal proceedings in his/her own country’s courts. Second, the
Court held that Heads of State should be deprived of jurisdictional immunity before a
foreign State’s court if the State which they represent waives their immunity rights.32
Regarding the aforementioned two exceptional situations, prosecution requires ‘a
willingness of the State which appointed the person as a Foreign Minister to investigate
and prosecute allegations against him domestically or to lift immunity in order to allow
29 ibid 49.
30 ibid 70.
31 ibid 60.
32 ibid 61; for further analysis see Stern (n 6).
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another State to do the same’.33 Be that as it may, where domestic authorised bodies do
not consent to open an investigation or start a prosecution, the committed violations of
human rights will go unpunished. Such an outcome raises the issue of impunity.
The third exception the Court identified was that after a person’s official position
as a Minister for Foreign Affairs ends, he or she can no longer benefit from the immunities
granted by international law in foreign States. ‘Provided that it has jurisdiction under
international law, a court of one State may try a former Minister for Foreign Affairs of
another State in respect of acts committed prior or subsequent to his or her period of
office, as well as in respect of acts committed during that period of office in a private
capacity’.34
The last exception identified by the Court was that neither former nor incumbent
Heads of State enjoy immunity when that immunity has been limited by a treaty
establishing an international court. Afterwards, the International Court of Justice listed
the International Criminal Court as one such tribunal which may overturn the immunity
of a Head of State provided that it has jurisdiction under international law.35 The
jurisdiction of the Court arises from the authority vested by the contracting States in the
Statute of the Court or via the United Nations Security Council. As Michael Tunks noted,
‘no other country has jurisdiction over a third party’s head of state, and, consequently, no
two states may agree by treaty to waive the immunity of a third party’s head of state
without that other nation’s consent’.36 It follows that the alleged jurisdiction of the court’s
statute over a Head of State whose home State does not assent to the statute is not
sufficient to rectify customary international law and protect fundamental human rights
from Head of State impunity.
It would be untenable to claim that in the absence of the International Criminal
Court, a Head of State who is suspected of having committed violations of fundamental
human rights would be justiciable solely before his or her own State’s courts.
IV. PROTECTION OF FUNDAMENTAL HUMAN RIGHTS VS. HEAD OF STATE
IMPUNITY
With respect to the peremptory nature of fundamental human rights, the decision
by the International Court of Justice offers no clear or plain solution to the tension
between Head of State immunity and protection of fundamental human rights. The
33 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) (n 21) [35] [Dissenting
Opinion of Judge Van den Wyngaert].
34 ibid 61; see for comments on the third exception of the Court Antonio Cassese, ‘When May Senior State
Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case’ (2002) 13
European Journal of International Law 853, 867–68.
35 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) (n 21) [61].
36 See Tunks (n 19) 665; see also generally Madeline Morris, ‘The Democratic Dilemma of the International
Criminal Court’ (2002) 5 Buffalo Criminal Law Review 591; see generally Cassese (n 34). ‘The
International Criminal Court will only be able to act if States which have jurisdiction are unwilling or unable
genuinely to carry out investigation or prosecution’. Arrest Warrant of 11 April 2000 (Democratic Republic
of the Congo v. Belgium) (n 21) [37] [Dissenting Opinion of Judge Van den Wyngaert].
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Judgment undermined the argument that the principle of protection of fundamental
human rights becomes hierarchically superior to immunity norms; if it were, immunity
would be obtainable neither by States nor by current or former Heads of State.37
In the Democratic Republic of the Congo v Belgium case, Judge ad hoc Van den
Wyngaert, in her Dissenting Opinion, claimed that there were no grounds in positive
international law for bestowing full immunity on incumbent Heads of State against
foreign criminal jurisdiction. She emphasised that neither State practice nor opinio juris
constitutes an international custom that affects the Court’s decision.38 It follows that there
is no treaty or legal opinion that supports the proposition of the Court. International law
does not provide immunity to incumbent Heads of State from criminal proceedings when
they perpetrate violations of fundamental human rights. In this sense, Belgium’s act might
seem to be at odds with international comity; however that act did not breach an
international legal obligation. Judge Wyngaert then stated that:
[T[he Court’s conclusion is reached without regard to the general tendency toward
the restriction of immunity of the State officials (including even Heads of State),
not only in the field of private and commercial law where the par in parem
principle has become more and more restricted and deprived of its mystique, but
also in the field of criminal law, when there are allegations of serious international
crimes.39
It must be noted that the international arrest warrant was issued by Belgium in
respect of accusations of war crimes which the International Court of Justice failed to
mention. It is important to ask what is required under international law and what
international law permits States, as members of international society, to do when their
officials are accused of violations of fundamental human rights. In this sense, two
particular interests are reflected in contemporary international law: first, the demand for
international accountability for having allegedly committed violations of fundamental
human rights and second, the sovereign equality principle of States which is regarded as
a prerequisite for immunities.40
Redressing the balance between these two particular interests is important for
resolving the contradiction between Head of State immunity and protection of
fundamental human rights. The Court, instead of redressing the balance, considered a
very narrow question on the immunities of incumbent Ministers of Foreign Affairs. By
doing so, the Court ‘has missed an excellent opportunity to contribute to the development
of modern international criminal law’.41
37 See Wuerth (n 19) 741.
38 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) (n 21) [1, 10, and 23]
[Dissenting Opinion of Judge Van den Wyngaert]; see also Petra Minnerop and others, World Court Digest
2001 - 2005, vol 4 (Springer Science & Business Media 2009).
39 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) (n 21) [23] [Dissenting
Opinion of Judge Van den Wyngaert].
40 ibid 5 [Dissenting Opinion of Judge Van den Wyngaert].
41 ibid 6 [Dissenting Opinion of Judge Van den Wyngaert].
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The International Court of Justice, in the Arrest Warrant case, recognised that a
former and incumbent Foreign Affairs Minister ‘might be subject to criminal proceedings
before certain international criminal courts where they have jurisdiction’.42 The Court
specifically cited the International Criminal Court as an example.
This issue was indeed raised before the International Criminal Court in respect of
an arrest warrant for the incumbent President of the Sudan, Omar Hassan Ahmad Al-
Bashir. When, on 4 March 2009 and 12 July 2010, Pre-Trial Chamber I of the
International Criminal Court issued two warrants of arrest for Omar al Bashir for crimes
against humanity and war crimes, his arrest was required in accordance with the Rome
Statute.43 Omar Al-Bashir was suspected of being criminally responsible as an indirect
violator, or co-perpetrator, for the liable person in respect of the crime of genocide.44
Since the arrest warrants were issued, President Al-Bashir has travelled to several
countries, including the Republic of Kenya, Djibouti, Malawi, the Republic of Chad,
South Africa. Although those countries are State parties to the Rome Statute and hence
were obligated to arrest him, he has never been arrested.45
On 15 February 2013, Pre-Trial Chamber II of the Court ‘requested the Registry
to send Notes Verbales to the Republic of Chad and the State of Libya, enquiring about
said visit, and reminding the former of its obligations with respect to the arrest and
surrender of Omar Al-Bashir to the Court’. Al Bashir travelled to Chad to attend a summit
and departed from Chad; however, the Chadian Government took no measure to arrest
him. The international community called on Chad to abide by the obligations decided
upon by the Court regarding the arrest warrant for Al Bashir and the Government of Chad
was required to provide information to the Chamber about Al Bashir’s alleged journey.
On 26 March 2013, Pre-Trial Chamber II issued that Chad had failed to cooperate with
the International Criminal Court and indicated the non-compliance of Chad to the
obligations of the Security Council.46 Al-Bashir also attended the African Union summit
scheduled from 7 to 15 June 2015 in South Africa. On 13 June 2015, Pre-Trial Chamber
II asserted that the Republic of South Africa had an obligation to arrest and surrender Al-
Bashir. South Africa failed to arrest him. On 15 October 2015, upon South Africa’s
request, Pre-Trial Chamber II extended the deadline to submit a report regarding the
failure of the South African Government to arrest Al-Bashir.47
In respect of the jurisdiction, the Pre-Trial Chamber declared that the official
position of Al-Bashir as Head of State did not free him from appearing before the
42 Fox QC and Webb (n 1) 558.
43 The Prosecutor v Al Bashir, First Arrest Warrant [2009] ICC-02/05-01/09 (Pre-Trial Chamber I); The
Prosecutor v Al Bashir, Second Arrest Warrant [2010] ICC-02/05-01/09-95 (Pre-Trial Chamber I); ‘Rome
Statute of the International Criminal Court’ (n 15) Article 58(1)(b).
44 The Prosecutor v Al Bashir, Second Arrest Warrant (n 43).
45 Some non-State parties to the Rome Statute were also welcomed Omar Al-Bashir: The Islamic Republic
of Mauritania, the People’s Republic of China, People’s Democratic Republic of Algeria, and the Arab
Republic of Egypt. See ‘Bashir-Watch’ accessed 05 July 2018.
46 The Prosecutor v Omar Al Bashir (2013) ICC-02/05-01/09-151 (Pre-Trial Chamber II).
47 The Prosecutor v Omar Al Bashir (2015) ICC-02/05-01/09-242 (Pre-Trial Chamber II).
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International Criminal Court. The Chamber proposed four considerations in reaching this
decision. First, the Chamber emphasised that one of the crucial goals of the Rome Statute
is to end impunity for perpetrators of violations of international crimes which amount to
human rights violations. Second, the Chamber noted that Article 27 of the Statute must
be applied to achieve this goal. This provision makes immunity non-applicable and
enforces the criminal responsibility of all persons regardless of their official capacity in
a State. Third, as required by Article 21 of the Rome Statute, other sources of law can be
applied only if there is a gap in the Rome Statute that cannot be filled by interpreting the
Vienna Convention on the Law of the Treaties with respect to internationally accepted
human rights norms. Fourth, the United Nations Security Council has accepted that the
investigation into the situation in Sudan and any prosecution generated therefrom will be
compatible with the Statutory framework of the International Court of Justice.48 On this
point, Dapo Akande stated that ‘the nature of the Charter as a sort of constitutional
document, and […] obligations under the Charter ought to be regarded as taking priority
over the customary international law’.49
Sudan is not a state party to the Rome Statute; however, the United Nations
Security Council, in referring the case in Darfur to the International Criminal Court, made
reference to Article 13(b) of the Statute. Subsequently, the Council required that Sudan
should co-operate with the Court.50 Under Chapter VII of the United Nations Charter, the
Security Council possesses full authority to take measures in order to contribute to the
maintenance of international peace and to maintain and restore international security. By
becoming a member of the United Nations, the Sudanese Government gives implicit
consent to the Security Council for the abolition of Head of State immunity, because
Article 25 of the Charter requires Member States to accept and execute the decisions of
the Council. It follows that immunity for Al-Bashir before the courts of foreign States has
been implicitly abolished. It must be noted that abolishing immunity in relation to the
accusations in the Al-Bashir case conforms with the Security Council’s objective, which
is to avoid absolute impunity for perpetrators of fundamental human rights violations that
pose a threat to international security and peace.51
International law does not prohibit investigation of alleged violations of human
rights; in fact, international law supports such inquiries, even if the accused perpetrator
48 See The Prosecutor v Al Bashir, First Arrest Warrant (n 43) at paras. 41, 42, 43, 44 and 45; see also
Jessica Needham, ‘Protection or Prosecution for Omar Al Bashir? The Changing State of Immunity in
International Criminal Law’ (2011) 17 Auckland University Law Review 219.
49 Akande (n 17) 348.
50 Needham (n 48) 247.
51 See generally Sophie Papillon, ‘Has the United Nations Security Council Implicitly Removed Al Bashir’s
Immunity?’ (2010) 10(2) International Criminal Law Review 275. There is another perspective that claims
that the implicit removal of immunity by the Security Council would be at odds with customary
international law and treaty principles which provide immunity for serving heads of State. Be that as it may,
Article 103 of the United Nations Charter reports that in ‘the event of a conflict between the obligations of
the Member of the United Nations under the present Charter and their obligations under any other
international agreement, their obligations under the present Charter shall prevail’. For a critique of the
implicit removal of immunity by the Council see Paola Gaeta, ‘Does President Al Bashir Enjoy Immunity
from Arrest?’ (2009) 7 Journal of International Criminal Justice 315.
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committed the crime as a State agent in a foreign State.52 This is evident in the history of
international law, in which there are very significant codifications of the principle of
individual accountability for violations of fundamental human rights. For example, the
1950 Nuremberg Principles highlighted that ‘any person who commits an act which
constitutes a crime under international law is responsible therefor and liable to
punishment’.53 Likewise, Article 4 of the Convention on the Prevention and Punishment
of the Crime of Genocide reads as follows: ‘Persons committing genocide or any of the
other acts enumerated in Article 3 shall be punished, whether they are constitutionally
responsible rulers, public officials or private individuals’.54 Furthermore, official reports
and resolutions can be found under the United Nations.55
Prioritising the immunities for Heads of State in cases involving violations of
fundamental human rights produces a tension between the immunity principle and the
protection of those human rights. That is to say, the prohibitions against certain violations
of human rights are deemed as jus cogens in nature, and since jus cogens norms are in no
case trumped by any other norm, the hierarchy should be established by considering the
superiority of jus cogens norms. It follows that the protection of fundamental human
rights takes priority under international law. On this point, it must be noted that where
violations of fundamental human rights ‘are concerned, immunity cannot block
investigations or prosecutions [of] such [violations], regardless of whether such
proceedings are brought before national or before international courts’.56 To protect and
improve the fundamental values and interests of human beings, the effective prohibition
of certain violations of human rights has been recognised by the international community
as having a jus cogens character. It follows that, if this hierarchically superior norm
becomes at variance with the principles guiding Head of State immunity, it should be
trumped by those provisions which are designed to defend and maintain fundamental
human rights.57
52 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) (n 21) [Dissenting
Opinion of Judge Van den Wyngaert].
53 ‘Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the
Judgment of the Tribunal, 5 UN GAOR Supp. (No. 12) at 11, U.N. Doc. A/1316’ (n 12) Principle 1.
54 ‘Convention on the Prevention and Punishment of the Crime of Genocide Adopted by General Assembly
of the United Nations’ (United Nations Treaty Series 1948) 78. The acts listed in Article 3 are genocide,
conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit
genocide and complicity in genocide.
55 See for example United Nations Commission on Human Rights, ‘The Administration of Justice and the
Human Rights of Detainees, Question of the Impunity of Perpetrators of Human Rights Violations (Civil
and Political) Revised Final Report Prepared by Mr. Joinet pursuant to Sub-Commission Decision
1996/119’ (1997) UN Doc. E/CN.4/Sub.2/1997/20/Rev.1; United Nations Commission on Human Rights,
‘Promotion and Protection of Human Rights: Impunity - Report of the Independent Expert to Update the
Set of Principles to Combat Impunity by Diane Orentlicher: Addendum - Updated Set of Principles for the
Protection and Promotion of Human Rights through Action to Combat Impunity’ (2005)
E/CN.4/2005/102/Add.1.
56 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) (n 21) [31] [Dissenting
Opinion of Judge Van den Wyngaert].
57 See generally Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) (n 21)
[Dissenting Opinion of Judge Al-Khasawneh].
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V. CONCLUSION
The maintenance of peaceful relations among States requires that Heads of State
be granted appropriate immunities from jurisdiction before the courts of foreign States.
For the sake of maintaining an environment in which Heads of State can carry out their
international duties while visiting foreign countries, Head of State immunity should
certainly afford protection from criminal responsibility. However, when Heads of State
are suspected of having committed violations of fundamental human rights, they should
not be exempt from punishment; in other words, immunity should not amount to
impunity. At this point, it should be noted that while the doctrine of immunity should be
maintained, this doctrine should no longer apply to situations in which transgression of
fundamental human rights recognised as a peremptory norm of general international law
has occurred. Impunity always ‘presents a challenge to those responsible for preventing
violations of fundamental human rights and establishing a just society. When impunity is
allowed, it may become a significant obstacle to justice and peace’.58
Former United Nations Secretary General Kofi Annan reinforced the rationale
behind Article 27 of the Rome Statute when he asserted that:
in the prospect of an international criminal court lies the promise of universal
justice. That is the simple and soaring hope of this vision. We are close to its
realisation. We will do our part to see it through till the end. We ask you to do
yours in our struggle to ensure that no ruler, no State, no junta and no army
anywhere can abuse human rights with impunity. Only then will the innocents of
distant wars and conflicts know that they, too, may sleep under the cover of
justice; that they, too, have rights, and that those who violate those rights will be
punished.59
Head of State immunities are considered to be an essential element of international
relations and international law. However, they are not jus cogens in nature. The protection
of fundamental human rights should override these procedural immunities. Political
concerns may not allow States to waive the immunity of their own high-ranking officials,
but as Lauterpacht rightly noted, the ‘dignity of a foreign state may suffer more from an
appeal to immunity than from a denial of it’.60 Immunity from jurisdiction should on no
account be applicable to fundamental human rights violations under international law
which meet the threshold of a jus cogens norm, neither before domestic courts nor before
international courts. Heads of State should not be allowed to enjoy immunities when
violations of such human rights have been committed.
58 Ozdan (n 2) 51.
59 ‘Establishment of an International Criminal Court: Overview’ (Rome Statute of the International
Criminal Court, 1999) accessed 05 July 2018.
60 H Lauterpacht, ‘The Problem of Jurisdictional Immunities of Foreign States’ (1951) 28 British Year
Book of International Law 220, 232.
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VI. REFERENCES
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International Criminal Court, 1999)
accessed 05 July 2018
I. Introduction
II. Developments of Head of State Immunity in International Legal System
III. The Problem of Head of State Immunity in Relation to Violations of Human Rights Recognised as Peremptory Norms
IV. Protection of Fundamental Human Rights VS. Head of State Impunity
V. Conclusion
VI. References