It was a pleasure this week to speak on a panel entitled “Chaos & Immunity: Core Crimes & Sitting Heads of States” at the American Branch of the International Law Association’s annual International Law Weekend at Fordham Law School and to connect with many experts in our field. In my remarks, summarized below, I took the opportunity to situate our discussion of head-of-state immunity in a broader context in light of the variety of situations in which claims to immunity are increasingly being raised—before international and domestic courts, when individuals are defending against civil claims and criminal charges, and on behalf of state entities and individual state actors—and to argue for the need for a systemic approach to immunities lest the various doctrines cover the field and curtail the utility of domestic courts as enforcers of international human rights and international criminal law.

The Need for a Systemic Approach

Today’s immunity defenses trace their origins to ancient doctrines of international law that are in obvious tension with the norm of accountability that has gradually taken hold since the World War II period. As victims and their lawyers pursue potential defendants wherever these individuals can be found, defendants and their lawyers have deployed these immunity doctrines as a bulwark against this quest for accountability.

The law in this area is in flux and is evolving in a haphazard way in both domestic and international courts. This offers litigants the opportunity to endeavor to optimize case outcomes by mixing-and-matching elements of the doctrine and relevant (or even irrelevant) precedent. As Chimène Keitner has aptly demonstrated, this multiplicity of doctrines leads to endemic confusion within the courts, which confront these issues on an ad hoc basis. Hence the need for a more careful and systemic approach to developing this area of law. The challenge is that this is not generally the way in which customary international law (CIL), or federal common law for that matter, develops. Rather, customary international law develops gradually through the emergence of consistent state practice backed by opinio juris. Additional challenges to developing the law are that: the international system is decentralized; cases are episodic; national courts often proceed in acoustic isolation; and there are few supranational courts that can harmonize the law across jurisdictions. In this way, it is important for judges to understand the entire corpus of law and the way in which their particular immunity ruling will fit into the larger system of international justice and accountability. The risk is that with each of these doctrines developing on its own trajectory, subject to a certain degree of path dependency, we could end up with a situation in which the cumulative application of the doctrines means that no type of defendant can be held liable in domestic courts, thus stripping domestic courts of their utility in enforcing international human rights and international criminal law.

Doctrinal Diversity

Type: As we have discussed, there are multiple immunity doctrines that depend on the identity and nature of the defendant asserting them. These include immunities traditionally enjoyed by diplomats, consular officials, heads of state/government, other foreign officials, members of the armed forces, sovereign entities, and international organizations. Some immunity doctrines are status-based (e.g., diplomatic immunity and head of state immunity) whereas others are conduct-based (e.g., consular immunity and foreign official immunity).

Origins: Another source of variety stems from the fact that the different immunities trace their origins to different legal instruments or sources. Some immunities—enjoyed by diplomatic or consular personnel—now find expression in dedicated multilateral treaties: the Vienna Convention on Diplomatic Immunities, the Vienna Convention on Consular Relations, and the Convention on Special Missions. The immunities that interest us most, however, are largely creatures of customary international law (CIL), as tempered by domestic law.

Rationales: The different immunity doctrines are justified in reference to different rationales, although these have evolved over the years. Today’s defendants tend to support their claims to immunity on functional grounds on the theory that state officials must be immune from suit in order to effectively carry out their functions on behalf of their governments free of interference, including potentially politically-motivated litigation. Theoretically, this functional justification could apply to any state actor, even the lowliest functionary. Head-of-state immunity has more metaphysical origins, with the monarch or other ruler being conceptualized as the physical embodiment of the state as if by some process of sovereign transubstantiation. Immunities traditionally enjoyed by sovereign entities trace their origins to the theory of sovereign equality, principles of comity, and the maxim par in parem non habet imperium (an equal cannot sit in judgment over the actions of an equal). In addition, one often finds fairness arguments in the literature premised on the idea that individuals should not be held liable for acts that should be imputed to the state through principles of attribution and state responsibility. From a less principled and more self-interested perspective, governments may justify all immunity doctrines on the basis of reciprocity.

Treaty Overrides: Although many immunity doctrines are traditionally conceived of as being part of customary international law, some contemporary international criminal law and human rights treaties specifically override all individual immunities, including the immunity enjoyed by sitting heads-of-state, which tends to be the most robust variety. Not surprisingly, this includes the Genocide Convention, which states at Article IV:

Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.

Other treaties exclude potential immunities more tangentially. The Torture Convention and Disappearances Convention, for example, define their respective crimes in such a way that their core prohibitions would be nullified, or significantly truncated, were the range of immunities to apply. So, for example, Article 1 of the Torture Convention only addresses torture committed by state actors:

For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person … by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

Both these treaties oblige their members to prosecute individuals suspected of participating in the commission of their respective crimes pursuant to a range of jurisdictional principles, including universal jurisdiction, when the individual accused is present in the forum or otherwise amenable to jurisdiction. In this way, Article 9(2) of the Disappearances Convention mandates that:

Each State Party shall likewise take such measures as may be necessary to establish its competence to exercise jurisdiction over the offence of enforced disappearance when the alleged offender is present in any territory under its jurisdiction, unless it extradites or surrenders him or her to another State in accordance with its international obligations or surrenders him or her to an international criminal tribunal whose jurisdiction it has recognized.

Both treaties make clear that their prohibitions apply in all circumstances. Thus, Article 2(2) of the Torture Convention states:

No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.

Given the tendency of ICL treaties to override customary immunities, the lack of a crimes against humanity treaty is acutely felt.  Indeed, the draft crimes against humanity treaty promulgated by the crimes against humanity treaty initiative, founded and led by Professor Leila Nadya Sadat who was slated to be on our panel, would make plain that no immunities would apply with respect to prosecutions brought under the treaty.

Domestic Law Overrides: In addition to these treaty overrides, many states have codified, or eliminated, immunities in their domestic codes in ways that may not be consistent with CIL. Where such a statute exists, the courts will apply it in relevant cases, with or without reference to international law. So, the British courts have determined that the United Kingdom’s 1978 State Immunity Act applies to heads of state (and their entourages) and to states (and their organs), but only to civil claims (as opposed to criminal charges) and only to traditionally sovereign acts (acta iure imperii) vice commercial acts (acta jure gestionis), consistent with the restrictive theory of immunity. Since Samantar v. Yousufwas decided by the U.S. Supreme Court in 2009, we know that the 1976 Foreign Sovereign Immunities Act (FSIA) applies to states and their agencies and instrumentalities, but not foreign officials, whose immunities are governed by federal common law. The FSIA also contains a number of exceptions that may or may not find support in CIL, such as the exception for state sponsors of terrorism. The latter exception to sovereign immunity allows for a range of claims to go forward against states that have been designated as state sponsors of terrorism:

A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case not otherwise covered by this chapter in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if such act or provision of material support or resources is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.

The Pinochet (United Kingdom) and Chuckie Taylor (United States) cases exemplify the way in these treaty obligations, and their incorporation into domestic law, have trumped certain claims to immunity (former head-of-state and foreign official immunity, respectively) in domestic criminal proceedings. By contrast, suits against sitting heads of state have not fared so well. French courts prohibited a criminal suit against Muammar Gaddafi of Libya from going forward in 2001 as did Spanish courts with respect to Fidel Castro of Cuba in 1999 and Paul Kagame of Rwanda in 2008.

In connection with their ratification of the Rome Statute establishing the International Criminal Court, many states have amended their national immunity rules to be compatible with the treaty’s Article 27, which rejects all immunities before the ICC. For example, France’s Constitutional Counsel determined that it was necessary to align with Article 27 France’s constitutional provisions granting the President of the Republic and members of Parliament certain immunities.  Likewise, the South African ICC Act rejects all immunities for defendants prosecuted under the Act.

In this regard, the CIL of immunities may be envisioned as creating certain default rules that can be overridden by states through their participation in multilateral treaties or even the enactment of domestic legislation, particularly when jus cogens norms are at issue. This conceptualization of the relationship between CIL immunity rules and other sources of law not amounting to jus cogens runs counter to some theories of CIL, which posit that no unilateral withdrawal from an existing CIL obligation is possible.

Executive Determinations: The role of the executive in immunity determinations remains subject to a high degree of variation across national systems as well, with national courts exhibiting an inconsistent willingness to accede to suggestions of immunity by executive agencies. Some legal systems treat the question of whether immunity exists as non-justiciable; others as a factual issue to be decided by the court. In some cases, the entitlement to head-of-state immunity depends on an act of recognition by the Executive (which at least partially explains the divergent outcomes in the Aristide and Noriega cases in the United States as well as the outcome in the 1988 Arafat case in Italy).

In the United States, the State Department argues that it is owed complete deference to its views on immunity, regardless of context, as a function of the Executive Branch’s foreign affairs powers (in addition to its Article II, § 3 recognition power). U.S. courts sometimes agree, but sometimes not. Historical and post-Samantar research suggests the emergence of a bifurcated approach whereby courts will show strong deference to executive determinations of a defendant’s entitlement to a status-based immunity but will conduct a more searching inquiry for claims involving conduct-based immunity.

Applicable Jurisdictional Bases: The existence vel non of a lawful basis of jurisdiction and the defendant’s entitlement vel non to an immunity defense are two separate inquiries, as exemplified in the Yerodia case before the International Court of Justice. At the same time, it is clear that the reach of various immunity doctrines is complicated by the fact that these defenses tend to be invoked in both civil and criminal cases involving the exercise of extraordinary bases of jurisdiction (as opposed to cases in which claims are made for conduct that occurred on the territory of the forum state or cases following the waiver by the nationality state of an immunity previously enjoyed by one of its officials). As such, the more contentious nature of universal jurisdiction appears to be exerting some influence on the application of these immunity doctrines.

Resolving Doctrinal Clashes & Exceptions to Immunity: Immunity defenses have ancient roots in international law that place them in obvious tension with the imperative of accountability and the increased emphasis on the principle of complementarity, which posits that domestic courts should take the lead in enforcing international human rights and international criminal law. This normative contradiction raises conflicts-of-law dilemmas that international law is not always well-suited to resolve, although we may look to lex specialis and last-in-time rules for assistance.

As Bill Dodge has noted on these pages, efforts to harmonize these two bodies of law in civil human rights litigation in the United States have given rise to two approaches: one that suggests that there is something akin to a jus cogens exception to immunity and the other that suggests that immunities do not ever attach when international crimes are at issue. These two approaches have different implications. The literature suggests that jus cogens may play an emerging role in eliminating functional, conduct-based immunities but not personal, status-based immunities. If so, then this approach to status-based immunities runs counter to the very concept of jus cogens as compelling law—rules that can only be over-ridden by a norm of an equivalent status and would trump ordinary international law rules, such as the immunity doctrines. This question of whether immunities attach, or are otherwise invalidated, when violations of jus cogens are at issue is what is at stake in the Samantar case, as we have discussed here and here.