What is the current state of international law on the question of immunity for heads of state indicted before international criminal courts?
In early April 2024, Reuters reported that its journalists had seen a document according to which Brazil would urge (at the Rio de Janeiro Group of 20 (G20) Summit in November) that heads of states should enjoy immunity from prosecution before an international criminal tribunal—notably the International Criminal Court (ICC)—if their countries are not party to the international treaty that established that court. The Reuters piece suggests that the Brazilian position is something of a favor for President Vladimir Putin—a friend in BRICS (Brazil, Russia, India, China, and South Africa)—against whom the ICC has issued an arrest warrant for war crimes allegedly committed in the context of Russia’s invasion of Ukraine. Russia is not a party to the Rome Statute, the treaty under which the ICC is established and organized.
Brazil’s reported intention to champion the cause of heads of state immunity comes in the wake of November 2023 news reports that French judicial authorities had issued an arrest warrant against Syria’s President Bashar al-Assad, for purposes of prosecuting him in France for war crimes. Notably, the warrant is consistent with a March 13, 2001, decision from the French Cour de cassation (France’s highest criminal appellate court), which appeared to recognize that a foreign head of state may be tried in France when the charge involved classic international crimes and not merely the charge of terrorism for which the Cour de cassation recognized immunity on that particular occasion.
Expanding the Club of Impunity at the UN Security Council?
States that host international conferences have a diplomatic interest in ensuring the attendance of the heads of friendly states—especially the most powerful and the wealthiest within the relevant concert of nations—without embarrassment. It was for that reason that African and Middle Eastern states parties to the Rome Statute declined to arrest Omar Al-Bashir when he was president of Sudan, even though he was under an arrest warrant and all ICC member states were under an obligation to arrest him and transfer him to the ICC. It is difficult to ignore that political phenomenon in the light of Brazil’s new position as reported by Reuters. It is the host of the 2024 G20 Summit in Rio and has hosted the BRICS summits every five years.
But that diplomatic amenity shouldn’t drape dignity upon the suggestion—that is often made and repeated in the Reuters report—that the ability of heads of state or government to attend international conferences augurs better for true tranquillity and security in the world than holding sovereign chiefs of the brutal ilk accountable for their own complicity in aggression, genocide, crimes against humanity and war crimes. History will readily show that diplomatic engagements with peers never stopped malevolent heads of state or government from conduct that amounted to international crimes. Indeed, it is often the case that some of these heads of states engaged in diplomatic communications with their peers precisely to seek moral or material support (including weapons) and alliances that would enable them along their chosen paths of horror.
The more intuitive proposition is that recently registered by President Biden in October 2023 when he observed that “history has taught us that when terrorists don’t pay a price for their terror, when dictators don’t pay a price for their aggression, they cause more chaos and death and more destruction. They keep going, and the cost and the threats … to the world keep rising.” Surely, the price of accountability is the least that those who violate international criminal law may be made to pay. French Premier Georges Clemenceau drove home a version of that point in 1919 as part of his motivations in leading an international law reform initiative the stated aim of which was a legal regime for the prosecution of heads of state and government for international crimes. Rejecting the idea of trading accountability for phantasmal peace, Clemeanceau observed: “It would be too easy for the criminals if peace annulled all responsibilities.” Referring to the ravages of World War I, he continued, “Believe me; amongst the peoples who have suffered for these five years, nothing would sow so many real seeds of hatred as an amnesty granted to all the criminals.”
Twenty-six years later, toward the end of World War II, the position of the U.S. government on accountability was made clear in the Yalta memorandum, ahead of the London Conference that set up the Nuremberg process. In the Yalta memorandum, the U.S. government insisted that Hitler and the Axis leaders must face prosecution for reasons including this: “Punishment of war criminals should be motivated primarily by its deterrent effect, by the impetus which it gives to improved standards of international conduct and, if the theory of punishment is broad enough, by the implicit condemnation of ruthlessness and unlawful force as instruments of attaining national ends.” Such a prosecution, the memorandum concluded, would afford “an opportunity to mark up an important step in the obtaining of future world security.”
The claim is thus entirely unsupported by evidence, intuition, or common sense, that the freedom of errant leaders to attend red-carpet meetings around the world is better for international peace and security than the imperative of accountability.
* * *
It’s important to note that Brazil once presented itself as a stalwart opponent of immunity before the ICC—even in cases concerning states not party to the Rome Statute. One notable such occasion was at the end of March 2005, when the United Nations Security Council adopted Resolution 1593 referring the situation in Darfur, Sudan, to the ICC. Although strongly supportive of the referral, Brazil abstained from voting for it. Why? Because the referral resolution contained an immunity clause for “nationals, current or former officials or personnel” from a state not party to the Rome Statute, unless that state expressly waived such immunity. The U.S. had insisted upon that immunity clause as a price for withholding its veto. Brazil saw that instance of immunity as “inconsistent [with] international law” and could not bring itself to vote for a resolution that allowed such immunity.
Brazil’s 2005 argument that immunity is inconsistent with international law was and remains demonstrably correct, while its plan to absolve friendly heads of state from accountability in 2024 is mistaken in law. The extent of this mistaken position goes well beyond the terms of Article 51 of the First Geneva Convention of 1949 (and the equivalent provisions in the other three Geneva Conventions of 1949), which provide that “[n]o High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article.” The preceding article in the First Geneva Convention—that is, Article 50 and the equivalent provision in each of the other three conventions—outlines the regime of war crimes known as “grave breaches” to the Geneva Conventions. Brazil and Russia are parties to those conventions.
The seeming self-contradiction presented by Brazil’s new position (as the Reuters report suggests) casts a troubling shadow on Brazil’s urge for reform of the UN Security Council. An urge that received renewed impetus by Brazil’s condemnation of both the manner of Israel’s war in Gaza (for which Brazil supports South Africa’s case at the International Court of Justice accusing Israel of committing genocide) and the failure of the Security Council to vote in time for a ceasefire.
The Security Council’s notorious dysfunction will compound the challenge of reform—if what that reform portends is merely an expansion of the cherished club of states able to exempt themselves and their friends and allies from accountability for apparent international crimes. It will be better to leave the Security Council as it is, unreformed.
The Extent of Immunity for Heads of State: Immunity in National Courts Only
Against the backdrop of Brazil’s planned plea of immunity, it may not be necessary to dwell on the irony evident in the first part of the dual-themed Rio G20 Summit: “Building a Just World and a Sustainable Planet” (emphasis added). It is enough to grant that there is nothing strange or new about the proposition that heads of state enjoy a certain privilege of immunity in international law—if what is contemplated is immunity before a foreign national court. What is new, according to the Reuters report, is the claim of such immunity before an international court. The legal truth is this: International law has never recognized immunity for heads of state before international courts.
Although often confused, there is a significant difference between the two legal scenarios. That difference was marked early on in 1919 at the Paris Peace Conference—a groundbreaking occasion for the question of immunity in international law. On that occasion, the conference’s Commission on Responsibility of the Authors of the War and on Enforcement of Penalties rejected immunity for heads of state, observing as follows about the privilege of immunity: “[T]his privilege, where it is recognized, is one of practical expedience in municipal law, and is not fundamental. However, even if, in some countries, a Sovereign is exempt from being prosecuted in a national court of his own country the position from an international point of view is quite different” (emphasis added).
That heads of state enjoy immunity in the judicial processes of national courts is an idea whose bulwark dates back to 1812, when Chief Justice John Marshall articulated that principle on behalf of the U.S. Supreme Court in the Schooner Exchange case that controlled the understanding of international law on the question of immunity for a very long time.
Of course, 1812 was well over 200 years ago, a very different era in the evolution of both national and international law. As of 1812, the international order was organized much differently. The current multilateral order was made for the very first time in 1920 with the formation of the League of Nations. That new arrangement, as announced by Woodrow Wilson, was instructively punctuated by the notable rapture of two leading French jurists, Dean Ferdinand Larnaude of Paris University law faculty and his colleague Professor Albert Geouffre de LaPradelle, who enthused at the end of 1918 that “un droit international nouveau est né” (“a new international law is born!”).
In 1812, the international order had not accepted any set of norms that spelled out in an international legal instrument conduct that amounted to war crimes. That happened in 1899 by virtue of the regulations annexed to the second Hague Convention adopted that year. In 1812, the international order had not accepted aggressive war as illegal let alone criminal. Aggressive wars were the sovereign entitlement of states able to fight them. At the time, states that could bring their martial might to bear were free to acquire new territories by use of force. It was only in 1928, through the Kellogg-Briand Pact, that the international community made aggressive war “an illegal thing,” as Henry L. Stimpson correctly observed in 1932. That development put to an end for the first time the right of states to acquire or expand territories by use of force.
It was only after World War II that the international order witnessed criminal prosecution of aggression as an international crime. That prosecution occurred before the international tribunals in Nuremberg and Tokyo. The defendants were leaders of the Third Reich and the Japanese Imperial War Cabinet, respectively, resulting in guilty verdicts attended by capital punishment or long prison terms.
In 1812, “crimes against humanity,” “genocide,” and “human rights” were not part of the standard lexicon of international law. Those developments started only after World War II, respectively with the London Conference of 1945 that adopted the Charter of the International Military Tribunal for Nuremberg, and the UN General Assembly adopting both a Convention on the Prevention and Punishment of the Crime of Genocide (1948) and the Universal Declaration of Human Rights (1949).
It also goes without saying that the law has undergone profound changes even at the national level in the past 200 years. For instance, in 1812 most countries denied women the right to vote. The first country to end the practice was New Zealand in 1893. Before 1929, Canadian women were not recognized as “persons” qualified to be appointed to sit in the Canadian Senate. In 1812, slavery had not been abolished in the United States and Brazil—that abolition only occurred, respectively, in 1865 and 1888. As of 1812, the laws of the United States did not guarantee citizenship for Black Americans. The Supreme Court thus thought it entirely lawful to hold in 1857 in Dred Scott v. Sandford that Black people (enslaved or free) could not be citizens of the United States. The reversal of that jurisprudence occurred only after the end of the American Civil War in 1865—long after 1812—when Congress adopted the 14th Amendment guaranteeing citizenship to everyone born in the U.S.
As of 1812, many national laws—notably in the U.K. and the U.S.—did not recognize that a man could rape his wife.
The point of the foregoing impressions is that very much has changed in international—and national—law since 1812. An understanding of international law enunciated in 1812 recognizing immunity for heads of state before national courts does not support in our own age immunity for heads of state indicted before international courts on charges of aggressive wars, genocide, war crimes, and crimes against humanity.
The Origins of Immunity in National Courts
In 1812, it was understood that heads of state should enjoy immunity in each other’s national criminal courts. At that time, most heads of state were kings or queens, emperors or empresses. Each was accepted to be above the law of his or her own realm and, therefore, could not be proceeded against in any court of law within the realm. The operative theories of accountability (legal and philosophical) revolved around the idea that the monarch could do no wrong—a notion popularly rendered in the Latin maxim “rex non potest pecarre” —and “princep legibus salutus” (“the prince is not bound by the law”). The king, according to those impeccant theories, was God’s vicar on earth and as such was answerable only to God and no other earthly authority or power. At the time, the courts of the realm were generally understood as operating under their king’s authority. The superior court in England, for instance, was called the “King’s (or Queen’s) Bench.” King Solomon’s legend, it may be recalled, came from his feats of sagacity as a judge. It was thus easy to see how subjecting a head of state to prosecution before the criminal courts of another country would wreak havoc on the idea of sovereign equality of nations. The idea that all sovereigns were deemed equal would be easily destabilized in any arrangement in which Queen Christina of Sweden was prosecuted in France for the murder of Marquis Rinaldo Monaldeschi, her Italian equerry, in her apartments in the Palace of Fontainebleau in 1657.
Rejection of Immunity After the World War II Order of International Law
It has become anachronistic in our own times to view anyone—including heads of states—as above the law. The general sentiments run rather along the nemo est supra leges (no one is above the law) line rendered by Justice Robert H. Jackson (who served as both the U.S. representative at the London Conference of 1945 and the U.S. chief prosecutor at Nuremberg). As he put it in his report to President Truman in June 1945, with regard to the United States, “We do not accept the paradox that legal responsibility should be the least where power is the greatest. We stand on the principle of responsible government declared some three centuries ago to King James by Lord Chief Justice Coke, who proclaimed that even a King is still ‘under God and the law.’” On that basis, Jackson and his co-conferees—from France, the U.K., and the U.S.S.R., all of whom are members of today’s G20 states—agreed to preclude the plea of immunity from the Charter of the International Military Tribunal (IMT) at Nuremberg annexed to the London Agreement they adopted in August 1945.
The preclusion of immunity was stated in Article 7 of the IMT Charter as follows: “The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.” A similar preclusion was made in Article 4(a) of the Control Council Law No 10 of 1945, according to which the Allied nations organized criminal prosecutions in their various zones of occupation in Europe after World War II. An equivalent provision was also made in Article 6 of the Charter of the International Military Tribunal for the Far East (popularly known as the Tokyo Tribunal), which tried the top leadership of Japan’s wartime government (from which only the emperor was exempt for political and not legal reasons).
It is important to stress here that just as Russia is not a party to the Rome Statute of the ICC, Germany was not a party to the London Agreement of 1945. Yet Germany’s top leaders during World War II were tried by the IMT at Nuremberg. Notable among the defendants was Grand Admiral Karl Dönitz, who became Germany’s head of state on May 1, 1945, upon Hitler’s death by suicide. Similarly, Japan was not a party to the instrument establishing the TokyoTtribunal that tried Japan’s cabinet members—including Hideki Tōjō, who was Japan’s prime minister during most of World War II, and his successor for the remainder of the war, Koiso Kuniaki.
Since the trials before the Nuremberg and Tokyo international tribunals involved prosecution of the top leadership of Nazi Germany and Imperial Japan, Jackson’s observations quoted above would encounter no significant legal obstacle. This is because his repudiation of the idea of government without legal accountability in the modern era was only a commentary directed at the order of national governance as it had evolved until 1945—contrasting with the era of French King Louis XIV’s much traveled “L’État c’est moi” riposte in 1655. Jackson’s observations would not, in any event, collide against any norm of international law in relation to international tribunals of the ilk then being set up in Nuremberg and Tokyo. This is because there had quite simply been no precedent in which immunity was upheld before any such international tribunal.
It was thus unsurprising that in its judgment at the end of the trial of Nazi leaders on Sept. 30, 1946, and Oct. 1, 1946, the IMT Nuremberg took care to explain that international law recognized no immunity before international tribunals in cases involving international crimes. As the tribunal famously stated: “The principle of international law which, under certain circumstances, protects the representatives of a state, cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings[.]” Driving home that point of law, the tribunal further observed that he “who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state, if the state, in authorizing action, moves outside its competence under international law.”
Evolution of the Current International Law
What then is the current state of international law on the question of immunity for heads of state indicted before international criminal courts?
That answer begins with the UN General Assembly Resolution 95(I) of Dec. 11, 1946. By that resolution, the General Assembly did two remarkable things that defined international law after World War II. First, the General Assembly affirmed the principles of international law recognized by the charter of the Nuremberg tribunal and by the judges of the tribunal in their judgment. As noted earlier, those principles necessarily included the rejection of immunity for heads of state. As already noted, that rejection was expressed as a norm in both Article 7 of the tribunal’s charter and by the judges of the tribunal in the pronouncements quoted above.
The second thing that the General Assembly did with Resolution 95(I) was to direct the UN’s expert international law body—later represented by what became the International Law Commission (ILC)—to formulate those principles of international law that had been recognized by the charter and the judgment of the Nuremberg tribunal. At the conclusion of that task in 1950, the ILC adopted a set of principles of international law, known as the Nuremberg Principles. It is a very short document that formulated those principles in only seven provisions. Primary among those principles of international law is that persons who commit international crimes are individually responsible for them and are liable to punishment for such crimes (Principle I). For that purpose, conduct recognized as international crimes are crimes against peace (including wars of aggression), war crimes, and crimes against humanity (Principle IV). Beyond the actual perpetration of the crime, complicity in the commission of an international crime is also punishable in international law (Principle VII).
As regards immunity, Principle III of the Nuremberg Principles pointedly captured what Article 7 of the Nuremberg Charter and judges of the tribunal said about immunity—including for heads of state. In that connection, Principle III says this: “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.”
At no time has international law ever accepted immunity for heads of state charged with crimes before international criminal courts—such as the Nuremberg and Tokyo tribunals— notwithstanding that the states of the defendants were not parties to the founding treaty of the relevant tribunal. That is evident in the care taken to reflect Nuremberg Principle III in every international instrument used to establish any international criminal tribunal from 1945 until the present day. Similarly, the ILC has reflected that principle in all the iterations of an international criminal code that it has drafted as part of its work after World War II. It was for that reason that Sir Arthur Watts, an eminent British jurist, observed in 1994: “It can no longer be doubted that as a matter of general customary international law a head of state will personally be liable to be called to account if there is sufficient evidence that he authorized or perpetrated such serious international crimes.”
The Deliberate Initiation of International Law Reform
The rejection of immunity in international law is a defining measure of justice. It stands against the proposition that had they lived, Adolf Hitler and Pol Pot would be entitled to immunity from accountability for the genocides alleged against them—merely because they were heads of state.
Here, it must be noted, it was a conscious effort in international law reform to preclude immunity for heads of state charged with international crimes before international criminal tribunals. The explicit purpose of that law reform was precisely to facilitate accountability for sovereign sociopaths for the horrors they inflict on humanity. Although that law reform crystallized only after World War II in 1945, the initial steps were taken earlier in 1919 at the end of World War I. The champions of that initial law reform were U.K. Prime Minister David Lloyd George and French Premier Georges Clemenceau. They were deliberate in their decision to set the course of international law in that direction—in their insistence that Emperor William II of Germany must be prosecuted before an international tribunal for international crimes attributed to Germany during the war. In a cabinet meeting on Nov. 20, 1918, the question arose about the lack of an earlier precedent in international law for such a trial. In response, Lloyd George said, “With regard to the question of international law, well, we are making international law, and all we can claim is that international law should be based on justice.”
At the Paris Peace Conference in 1919, Lloyd George’s solicitor-general, Sir Ernest Pollock, drove a hard negotiation as a leading member of the Commission on Responsibility of the Authors of the War and on Enforcement of Penalties. The result was a report that explicitly rejected head of state immunity in the following terms: “[I]n the hierarchy of persons in authority there is no reason why rank, however exalted, should in any circumstances protect the holder of it from responsibility when that responsibility has been established before a properly constituted tribunal. This extends even to the case of Heads of States.”
Subsequently, during a spirited discussion between Wilson, Lloyd George, Clemenceau, and Italy’s Vittorio Orlando, a former law professor, Orlando raised concerns about the absence of precedent in international law for a trial such as was being contemplated for the former German emperor before an international court. With evident irritation, Clemenceau brought him back in line with the reminder that it is human beings that create “precedents” and that the contemplated trial of the emperor would set the needed precedent for future prosecution of heads of state for international crimes before international criminal courts. [See Paul Mantoux, The Deliberations of the Council of Four (March 24—June 28, 1919): Notes of the Official Interpreter [Translated and Edited by Arthur S Link, with the Assistance of Manfred F. Boemeke] (1992) at p 193] In the end, the four leaders agreed that the former German kaiser must be prosecuted before an international criminal tribunal. Wilson was personally involved in the formulation of the text that became the famous Article 227 of the Versailles Treaty. The provision announced that the Allied and Associated Powers had publicly arraigned the former German emperor “for a supreme offence against international morality and the sanctity of treaties” to be tried by a special international tribunal that would impose appropriate punishment.
The Dutch thwarted the project of prosecuting the emperor by refusing to surrender him from his asylum in the Netherlands. It took another 26 years for the Nuremberg process to solidify the norm that no one—including heads of state—may enjoy immunity when charged with an international crime before an international court.
Reverse Reform of International Law
After more than 50 years, Americans saw their Supreme Court reverse Roe v. Wade, allowing states to enact laws that outlawed abortion. A similar regression can occur in international law on the matter of immunity—regardless of the current position of international law.
But those who urge for retrogression must do so knowing that the logic of their argument would also shield Hitler from prosecution for the Holocaust. It would be inadequate to base such a reversal on propositions, as the Reuters piece reports, that “immunity of heads of state is essential to promote peaceful relations between states by allowing them to participate in diplomatic conferences and missions in foreign countries” or on similar eccentric reasoning.
During a UN Security Council meeting that went late into the night of March 31, 2005, Brazil’s Permanent Representative Ronaldo Mota Sardenberg, in his capacity as the president of the Security Council, argued that the “the maintenance of international peace and the fight against impunity cannot be viewed as conflicting objectives.” He was eminently correct.
There should be more to the promotion of “peaceful relations between states” than merely allowing heads of state to travel the globe, receiving the red-carpet treatment as they go, notwithstanding that they have been accused of inhumane crimes against the same international law they claim as affording them a basis to travel as they see fit.
It may be recalled here that in rejecting head of state immunity in 1919, the Paris Peace Conference’s Commission on Responsibility of the Authors of the War and on Enforcement of Penalties observed, as noted earlier, that the privilege of immunity, “where it is recognized, is one of practical expedience in municipal law, and it is not fundamental” (emphasis added).
It is obvious that the more fundamental consideration in “peaceful relations between states” is that heads of state are deterred from engaging in wars of aggression, genocide, and crimes against humanity, and that they refrain from war crimes in the wars they fight in ways that make return to peace more difficult.
Before the Nuremberg proceedings that began in 1945, there was no precedent for an international criminal tribunal that actually worked. It was an era of immunity for heads of state before each other’s national courts. But what prevailed during that era were constant wars between nations—a veritable era of instability in “peaceful relations between states”—culminating in two world wars that entailed aggression, genocides, war crimes, and crimes against humanity. It may not be necessary to draw a direct link to the Nuremberg process as having an effect—the “Nuremberg Effect”—that helped to foster relative improvements in international peace and security. It is enough to say that the principles of international law resulting from the Nuremberg process included the rejection of immunity for even heads of state accused of international crimes. The Nuremberg effect would no doubt have left the impression in the minds of heads of state that World War II marked the end of the era of impunity for international crimes that threatened or disturbed international peace and security. It couldn’t make sense to a child to suggest that accountability for the very same conduct is itself something that threatens peaceful relations between states.
– Chile Eboe-Osuji served as the fourth president of the International Criminal Court from 2018 to 2019 and as a judge of the Appeals Division during the same period. Published courtesy of Lawfare.
