The African Union’s controversial effort to grant sitting heads-of-state and “other senior state officials” immunity before the proposed new African criminal chambers (see here for an account of the text), and the International Law Commission’s consideration of immunity doctrines in its current program of work, reveal that the issue of immunities from criminal prosecution remains contentious. Further to our prior coverage (here, here and here) of a potential prosecution of Gotabaya Rajapaksa of Sri Lanka, it is worth considering whether Gotabaya might be entitled to any form immunity under international or domestic law.

Lt. Col. Rajapaksa has since 2005 held the post of Secretary to the Ministry of Defense of Sri Lanka. This title is not to be confused with the cabinet post of Minister of Defense, which is held by President Mahinda Rajapaksa, Gotabaya’s brother. (In Sri Lanka, the President is constitutionally empowered to appoint himself to any ministry of his choosing). Gotabaya is not a member of Sri Lanka’s famed “jumbo cabinet,” one of the largest in any government; indeed, he is not a member of Parliament (or an elected official to anything for that matter). There has been speculation that he is seeking further government service, including potentially a Parliament bid, precisely in order to shore up any immunity claim, although it is unclear if his U.S. citizenship would preclude elected office.

Although Gotabaya does occasionally travel on official business, he is not an accredited diplomat or someone who regularly represents Sri Lanka on the international stage. When he does venture out of Sri Lanka, he rarely travels openly. For example, he recently met with U.N. Deputy Secretary General Jan Eliasson in December 2013 in New York, but this only came to light when Gotabaya appeared on Eliasson’s daily schedule. (No read-out of the meeting was proffered, although the tenacious Inner City Press did seek one). Apparently, he also secretly visited Malaysia in April 2014 and arranged some side talks with Indian officials while on a private trip to New Delhi in November 2013.

All told, and notwithstanding his government appointment, no doctrine of immunity would bar the United States from prosecuting its national for international crimes, including war crimes committed during the dénouement of the civil war. Gotabaya is not entitled to any personal immunities by virtue of the fact that he is not a head of state, head of government, or diplomat. Nor would Gotabaya qualify for such immunity in those systems that might accord immunity ratione personae to a Minister of Defense, since his position is inferior and dissimilar in rank. Although he might assert claims of foreign official immunity (immunity ratione materiae), the acts for which he stands accused would preclude his entitlement to any immunity. In any case, in the United States, the Executive Branch plays an important role in bestowing foreign official immunity, and none of the relevant factors weighs in favor of abstaining from prosecution in this case. Were the Department of Justice to decide to press charges, it would signal a considered unwillingness of the U.S. government to accord Gotabaya any foreign official immunity, a position that should receive deference from the courts regardless of any claim to immunity asserted by Sri Lanka.

In addition, because Gotabaya is a U.S. citizen, there are distinctive reasons that he should be subject to the jurisdiction of U.S. courts on the heels of Chuckie Taylor of Liberia, also a U.S. citizen who was prosecuted for torture. In particular, the United States’ interest in prosecuting its own citizens should trump any claims of immunity that Sri Lanka might assert.

A further discussion of these immunity doctrines, with illustrations drawn from a sampling of relevant precedent from U.S. and foreign law of particular relevance to the any Gotabaya prosecution, appears below the fold.

Immunities Under International Law

By way of background, immunity doctrines historically come in two forms: immunity ratione personae and immunity ratione materiae. These doctrines apply in both civil and criminal proceedings, although they operate somewhat differently in these two contexts. While the doctrine governing immunities ratione personae is relatively stable, the scope of common law immunities ratione materiae is still being litigated.

1. Immunity Ratione Personae

The head of state and head of government—as personifications of the state—generally enjoy immunity from jurisdiction (civil and criminal) before the courts of foreign states as a function of customary international law (CIL). In addition, certain accredited diplomats and state representatives to certain international organizations may also be entitled to such immunities by way of CIL and/or treaty law. As discussed below, the International Court of Justice has extended this form of immunity to cover Ministers of Foreign Affairs, on the theory that such officials are plenipotentiaries, capable of binding the state in treaty negotiations, as reflected in Article 7(2) of the Vienna Convention on the Law of Treaties. Although a minority position, some courts will include Ministers of Defense within this orbit of this immunity. Extending these immunities to these two ministerial beneficiaries, however, is not without controversy. Status-based immunities are considered necessary to ensure the smooth conduct of international relations; they also reflect considerations of comity and the notion of “symbolic sovereignty” since such high-ranking officials are deemed to personify the state.

Personal immunities are strong and virtually absolute: they prohibit the exercise of jurisdiction not only over actions taken in an official capacity, but also over private acts committed while the individual is in office. (Certain forms of special mission immunity that apply in the host state, however, do not apply to state officials abroad on a private visit). While the individual remains in office, personal immunities also apply to actions taken prior to the assumption of office. This form of immunity is generally imparted for the benefit of the state; as such, it dissipates once the head of state or diplomat leaves office and can be waived by the state.

Under U.S. law, because the U.S. Constitution makes mention of the power to “receive Ambassadors and other public Ministers” (art. III, § 3), and because head-of-state immunity involves a formal act of recognition, courts have generally treated Executive Branch “suggestions of immunity” for heads of state as controlling in civil proceedings. See Ye v. Zemin, 383 F.3d 620, 626 (7th Cir. 2004).

2. Immunity Ratione Materiae

Foreign officials who do not qualify for immunity ratione personae may be entitled to functional immunity for official acts taken on behalf of the state. This immunity is conduct-based rather than status-based. Because the immunity attaches to the official act, rather than to the actor in question, it does not apply to acts taken before an official assumed office and may continue to offer protection from prosecution for such officials after they leave office. Former heads of state and diplomats may enjoy some degree of foreign official immunity for official acts undertaken while they were in office. In these ways, immunity ratione materiae is both broader and narrower than doctrines of immunity ratione personae.

Immunity ratione materiae essentially shifts responsibility for the impugned acts from the individual to the state in question and some courts, including the International Court of Justice, will not consider it unless faced with an assertion of immunity by the state on whose behalf the individual purported to act. This form of immunity thus finds affinity in the defenses of foreign sovereign immunity and act of state—although it may not be co-extensive with such doctrines—and it too can be waived by the foreign state.

In the United States, the Executive Branch plays a role in recognizing foreign official immunity as a function of its foreign affairs power. In civil litigation, courts may defer to the State Department’s determination of whether an individual should be entitled to foreign official immunity, but such determinations are not controlling.

Representative Domestic Law Precedent

Traditionally, immunity ratione personae was limited to heads of state, heads of government, and accredited diplomats. National courts confronted with the potential criminal or civil liability of sitting heads of state would thus bar the suit from going forward. For example, in January 2004, an English District Judge rejected an application for the arrest and extradition of President Robert Mugabe of Zimbabwe to stand trial for torture on grounds of immunity. A U.S. district court had earlier reached a similar conclusion in a civil suit brought by victims of the Mugabe regime (Tachiona v. Mugabe, 169 F.Supp.2d 259 (SDNY 2001)). Likewise, a French appeals court determined that the lower court could not in fact prosecute Colonel Muammar Ghaddafi of Libya for the bombing of a French airliner over Niger in 1989; a Spanish court reached a similar result with respect to Fidel Castro in 1998 and Paul Kagame of Rwanda in 2008. Indeed, in 2012, a U.S. district judge dismissed an Alien Tort Statute/Torture Victim Protection Act suit against Gotabaya’s brother, Mahinder Rajapaksa, on head-of-state-immunity grounds. In that suit, the U.S. government submitted a Suggestion of Immunity on the defendant’s behalf, which was deemed to preclude jurisdiction.

A notable exception to the seemingly absolute nature of head-of-state immunity is apparent in the case against General Manuel Antonio Noriega who was brought in the United States to stand trial for narcotics-related charges. United States v. Noriega, 117 F.3d 1206 (11th Cir. 1997). The United States, however, never recognized Noriega as the legitimate President of Panama since he had assumed power after the Panamanian Parliament deposed the then-President, Eric Arturo Delvalle, and subsequent elections were disputed. In particular, the U.S. court ruled that by pursuing Noriega’s capture and prosecution, the U.S. Executive Branch “manifested its clear sentiment that Noriega should be denied head-of-state immunity.” In addition, the court noted that Panama did not seek immunity for Noriega and the charged acts were committed for his personal enrichment. In 2010, and after Noriega had served more than 20 years in prison, the United States extradited him to France to stand trial for money laundering. Following his conviction there, he was again extradited to Panama to serve time for prior convictions for murder and corruption.

As mentioned above, former heads of state/government no longer enjoy immunity ratione personae. The leading opinion on this point is the House of Lords’ decision in the Pinochet case, which denied immunity to the former Chilean head of state. Regina v. Bartle, ex parte Pinochet, reprinted in 38 I.L.M. 581 (H.L. 1999). In so deciding, the House of Lords also withheld immunity ratione materiae on the theory that it would not be consistent with the terms of the Convention Against Torture, or applicable British law134 of the Criminal Justice Act of 1988), both of which prohibit torture committed by individuals in the performance, or purported performance, of their official duties. As such, the House of Lords determined that the implementation of torture cannot be a state function that entitles a state actor to immunity. This case was able to proceed because the British State Immunity Act of 1978, which governs civil claims against individuals and states, does not apply to criminal proceedings per §16(4). In Jones v. United Kingdom, the House of Lords determined in 2006 that the State Immunity Act barred a British citizen who was allegedly tortured by Saudi Arabia from suing that country or responsible individuals.  Unlike the United States’ Foreign Sovereign Immunities Act (FSIA), the SIA grants immunities to both states and their officials.

As exemplified by the Yerodia case discussed below, Ministers of Foreign Affairs may be accorded personal immunities analogous to heads of state/government. In general, this exalted group, the so-called troika, does not include Ministers of Defense (or other potential cabinet members for that matter), since their role representing the state on the international stage is much more limited and they are not considered plenipotentiaries. Nonetheless, there is some contrary domestic precedent suggesting that immunity ratione personae should in fact extend to a quartet of officials that includes Ministers of Defense.

Notably, in the case of General Shaul Mofaz, involving the Israeli Defense Minister, a United Kingdom court ruled that sitting Defense Ministers are also “automatically” immune from criminal liability. Mofaz was the subject of an application for an arrest warrant for war crimes under the United Kingdom’s Geneva Convention Act, which states:

Any person, whatever his nationality who whether in or outside the United Kingdom, commits or aids, abets or procures the commission by any other person of a grave breach of any of the scheduled conventions on the first protocol shall be guilty of an offence.

Although the court ruled that it had jurisdiction over the case by virtue of the above-cited provision, it found Mofaz was entitled to immunity. The court reasoned (para. 14) as follows:

Although travel will not be on the same level as that of a Foreign Minister, it is a fact that many states maintain troops overseas and there are many United Nations missions to visit in which military issues do play a prominent role between certain States. It strikes me that the roles of defence and foreign policy are very much intertwined, in particular in the Middle East.

This may be a special case in light of the defendant’s nationality. The amenability of former Defense Ministers to suit is well established (Switzerland, for example, prosecuted an Algerian Defense Minister).

Elsewhere, immunities ratione materiae may be weakening, particularly as states ratify the Statute of the International Criminal Court (ICC) and domesticate its principles, including Article 27, which eschews all immunities. Further to our discussion of its universal jurisdiction law, South African legislation provides that

the fact that a person is or was a head of State or government, a member of a government or parliament, an elected representative or a government official

is neither a defence to a crime; nor a ground for any possible reduction of sentence. (See Section 4(2), South Africa, Implementation of the Rome Statute of the International Criminal Court Act, No. 27 of 2002, Government Gazette of the Republic of South Africa No. 23642, Vol. 445 (18 July 2002)). Likewise, the national legislation of Burkina Faso excludes all immunity for heads of state and other government officials when international crimes are at issue. (See Article 7, Burkina Faso, Loi 052-2009/AN du 03 décembre 2009 portant Détermination des Compétences et de la Procédure de mise en ouvre du Statut de Rome relatif a la Cour Pénale Internationale par les Juridictions Burkinabés (3 December 2009)).

By contrast to these cases involving immunity ratione personae, very few domestic courts have recognized foreign official immunity in the criminal context. Indeed, what we see instead is that foreign officials are increasingly subject to suit in domestic courts under principles of extraterritorial jurisdiction.  In Europe, in particular, a number of cases have proceeded against Rwandan and Yugoslav defendants (including current officials such as Rose Kabuye, Rwanda’s Chief of Protocol) hailing from the genocide and armed conflicts in those countries.  In the United States, the United States brought torture charges against U.S. citizen Chuckie Taylor, who served in Liberia’s brutal Anti-Terrorist Unit under his father, President Charles Taylor of Liberia. United States v. Belfast, 611 F.3d 783 (11th Cir. 2010). Likewise, the recent cyber-spying indictments against Chinese officials suggest a willingness to disregard foreign official immunities in the United States.

Similar outcomes are apparent in civil cases. Indeed, in the Alien Tort Statute litigation starting with Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980), which involved the Paraguayan Inspector General in the Department of Investigation in Asunsion, U.S. courts have allowed cases against foreign officials to go forward. Indeed, the Torture Victim Protection Act (TVPA, 28 U.S.C. §1350 note), enacted to provide a federal cause of action against any individual who, under actual or apparent authority or under color of law of any foreign nation, subjects any individual to torture or extrajudicial killing. There is a contrary line of cases in the United States according foreign official immunities to foreign officials under the FSIA (such as Belhas v. Ya’Alon, which involved claims of war crimes against an Israeli Defense Forces general) that has been effectively over-ruled by the Supreme Court’s decision in Samantar, discussed below.

A number of arguments have been raised to prevent state actors from enjoying immunity ratione materiae for the commission of international crimes:

  1. Immunity ratione materiae cannot apply to unlawful actions even if they are committed on behalf of the state.
  2. Unlawful actions, particularly violations of jus cogens norms such as those prohibiting war crimes and crimes against humanity, can never be considered official acts of state.
  3. Immunities do not attach when an individual acts outside the scope of her authority under applicable domestic law or international law.
  4. When a state violates international law or a jus cogens norm, it essentially waives any immunities from suit for itself or its agents.
  5. No immunity exists where the state has consented to the assertion by other states of extraterritorial jurisdiction over the crime in question by, for example, acceding to a treaty authorizing the extension of universal jurisdiction over a treaty crime.
  6. A state waives any immunity defenses when it asserts jurisdiction over foreign officials for international crimes in its own domestic law.
  7. No immunity exists when the crime in question is subject to universal jurisdiction; more recent jurisdiction-conferring norms trump historical immunity doctrines.
  8. No immunity exists when a state is obligated, as by treaty, to prosecute the crime in question.
  9. No foreign official immunity exists when state action is an element of the crime (otherwise, it would be impossible to ever prosecute the crime).

These rationales for cabining the reach of immunity ratione materiae exhibit varying degrees of traction in the jurisprudence, as exemplified in the Yousuf v. Samantar case in the United States.

Yousef v. Samantar

Samantar involved superior responsibility claims against an individual who held the posts of Vice President, Minister of Defense, and Prime Minister of Somalia in the 1980s who had become a legal permanent resident of the United States. Plaintiffs sought to hold him liable for war crimes committed by his subordinates in connection with an aerial and ground assault against the city of Hargeisa, Somaliland in 1988.

Samantar argued that he was immune from suit by virtue of the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1330 et seq., and the district court agreed. The 4th Circuit reversed. Resolving a circuit split, the Supreme Court rejected Samantar’s FSIA arguments by ruling that the statute applies only to claims against states and their agencies and instrumentalities—the position advocated by the United States government in Samantar and similar litigation. The Court indicated that claims against natural persons would thus be governed by common law immunity principles that predated the enactment of the FSIA, which include the obligation of courts to accord some deference to the views of the U.S. State Department. Samantar v. Yousuf, 560 U.S. 305 (2010).

On remand, Samantar argued that he was entitled to both (1) head-of-state immunity, for acts allegedly committed while he was Prime Minister, and (2) foreign official immunity, for all acts allegedly committed in his official capacity. Although the State Department had been silent on the merits of the case up to that point, it weighed in against immunity at this stage. Specifically, the Government’s Statement of Interest noted that

The immunity protecting foreign officials for their official acts ultimately belongs to the sovereign rather than the official … [and no immunity is warranted] [i]n the absence of a recognized government . . . to assert or waive [Samantar’s] immunity.

Samantar’s status as a legal permanent resident was also deemed relevant to his entitlement to immunity:

U.S. residents like Samantar who enjoy the protections of U.S. law ordinarily should be subject to the jurisdiction of our courts, particularly when sued by U.S. residents.

Consistent with the U.S. Government’s views, the 4th Circuit rejected both of Samantar’s claims to immunity. With respect to Samantar’s head-of-state immunity assertion, the court noted that the State Department never recognized Samantar as a head of state or, for that matter, the Transitional Federal Government or any other entity as the official government of Somalia. With respect to his official-acts immunity assertion, the court determined that foreign officials are not entitled to immunity for violations of jus cogens norms, because such acts are not legitimate official acts:

We conclude that, under international and domestic law, officials from other countries are not entitled to foreign official immunity for jus cogens violations, even if the acts were performed in the defendant’s official capacity.

In reaching this result, the court determined that the State Department’s views are entitled to “substantial weight,” but are not controlling. Yousuf v. Samantar, 699 F.3d 763 (4th Cir. 2012). Samantar’s effort to return to the Supreme Court failed when the Court denied certiorari.

The International Court of Justice

The International Court of Justice (ICJ) has on two recent occasions confronted the question of when state officials should be entitled to immunity from criminal processes in a foreign state.

1. DRC v. Belgium

The doctrine of immunity ratione personae was at issue in the so-called Yerodia case (Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium)) Judgment of February 14, 2002). The case involved an arrest warrant issued in absentia and later circulated through Interpol by a Belgian juge d’instruction against Mr. Abdulaye Yerodia Ndombasi, who at the time was the Minister of Foreign Affairs of the DRC. The warrant requested Yerodia’s extradition to stand trial for serious violations of international humanitarian law and crimes against humanity in connection with certain alleged acts of racially-motivated incitement.

Because there was no applicable treaty, the Court looked to customary international law when it held that (para. 54):

the functions of a Minister for Foreign Affairs are such that, throughout the duration of his or her office, he or she when abroad enjoys full immunity from criminal jurisdiction and inviolability. That immunity and that inviolability protect the individual concerned against any act of authority of another State which would hinder him or her in the performance of his or her duties.

In this regard, the ICJ made no distinction between acts performed, or travel undertaken, in an official or a personal capacity, or acts taken prior to or after assuming office (para. 55). The ICJ assumed that immunity was the default and was unable to deduce from state practice an exception to the general rule that incumbent Foreign Ministers are inviolable from criminal process in the courts of a co-equal state even when serious crimes under international law are at issue (para. 58). The rationale for the Court’s ruling was largely functional: it reasoned that because Foreign Ministers must represent their state in multilateral gatherings, manage the state’s relations with other states, and travel in order to carry out their functions on behalf of the state, the inviolability created by immunity ratione personae was justified. As the Court explained at para. 53:

In customary international law, the immunities accorded to Ministers for Foreign Affairs are not granted for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective States.

The Court was careful to insist that an entitlement to immunity from criminal process under the current circumstances does not imply that such officials enjoy perpetual impunity. Rather, a Foreign Minister may be amenable to criminal process:

  • in the courts of his or her own country,
  • if the state of nationality waives the immunity,
  • once he or she steps down from office with respect to acts taken prior to entering office or in a private capacity, and
  • before international tribunals (para. 61).

The Court likened the immunity of a Foreign Minister to that traditionally enjoyed by Heads of State or of Government. It also left open the possibility that other ministers might also qualify for such immunity while in office (para. 51):

The [C]ourt would observe at the outset that in international law it is firmly established that, as also diplomatic and consular agents, certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal. For the purposes of the present case, it is only the immunity from criminal jurisdiction and the inviolability of an incumbent Minister for Foreign Affairs that fall for the Court to consider.

Although head-of-state immunity is well established under customary international law, there is some controversy around whether Foreign Ministers should enjoy an equivalent degree of immunity, and indeed the ICJ cited no precedent or state practice in support of its holding in this regard. The primary argument against extending immunity ratione personae beyond heads of state/government is that Ministers of Foreign Affairs do not embody the state to the same degree as does the Head of State or Head of Government such that the service of process against the latter is, in effect, the service of process against the state itself in violation of foreign sovereign immunity. Arguments have also been made, notably by Dapo Akande and Sangeeta Shah, that such immunities should not attach when such high officials are on private business, unconnected to any representational duties, vice when they are on official travel.

2. Djibouti v. France

In a subsequent case, the ICJ declined to extend immunities ratione personae to cover a Public Prosecutor or Head of National Security (both non-ministerial posts)—positions that might be analogous to, although are likely more senior than, Gotabaya’s. See Case Concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008 (June 4, 2008), p. 177.

That case involved summonses to appear that were issued to the head of state of Djibouti and to two other senior officials in connection with an investigation into the 1995 murder of a French citizen and magistrate in Djibouti, Bernard Borrel. The ICJ ruled that a voluntary invitation to give testimony issued to the head of state of Djibouti while he was in France did not amount to a “constraining act of authority” that would hinder the head of state in the performance of his duties in France. As such, there was no breach of any immunity by this summons, although the way in which the paperwork was conveyed did offend certain courtesies due to a foreign head of state (paras. 171-2).

With respect to summonses-to-appear issued to the Public Prosecutor (procureur de la République) and the Head of National Security, which could be enforced through the issuance of an arrest warrant, Djibouti originally argued that the pair were equally entitled to immunity ratione personae. During the oral proceedings, however, the argument was re-framed in terms of immunity ratione materiae (paras. 185-7). France accordingly argued that because such functional immunities are not absolute, it was for the courts of France to determine their reach (para. 189). France argued that allowing immunity ratione materiae to operate as a complete bar to jurisdiction under the circumstances would

be devastating and would signify that all an official, regardless of his rank or functions, needs to do is assert that he was acting in the context of his functions to escape any criminal prosecution in a foreign State (para. 189).

The ICJ determined that the pair was not entitled to any personal immunities given that they were not diplomats (para. 194). Further, the Court noted that at no time did Djibouti inform France that the acts complained of by France were its own acts such that the individuals in question were acting as its agents in carrying them out (para. 196). Indeed, the Court held that Djibouti would in essence accept responsibility for the acts in question if it insisted on asserting that its officials were entitled to immunity ratione materiae:

the State notifying a foreign court that judicial process should not proceed, for reasons of immunity, against its State organs, is assuming responsibility for any internationally wrongful act in issue committed by such organs (para. 196).

Because Djibouti had not properly asserted the immunity of its agents in the domestic proceedings, the ICJ ruled that France had not impugned any immunity enjoyed by the officials in question (para. 197).

The International Law Commission is grappling with these issues, which may lend some clarity to the open issues raised above.