Some Reflections on the Heads of State Immunity: Sovereign Immunity, Customary Law and Executive...

1 ACADEMIA.EDU| Capital University of Political Science and Law| Nicusor Sever Cosmin FLOREA

Some Reflections on the Heads of State Immunity:

Sovereign Immunity, Customary Law and Executive Prerogative

Nicusor-Sever-Cosmin FLOREA*

Head of State Immunity seems to intrinsically maintain a conflict among Sovereign Immunity, to whom it

subsists, Customary Law, to whom it owes its origins, and Executive Prerogative, who assures its implementation. The

current article tries to explain and ponder upon the core implications of this conflict by regarding its origins,

evolution (if whatsoever) and, perhaps most importantly, its theoretical reasoning. I will argue that the Head of State

Immunity is primarily based on the doctrine of Separation of Powers; whereas the Executive exerts all the

prerogatives pertaining to Foreign Affairs, the judiciary cannot arrogate itself such attributes. Secondly, I will argue

that Head of State Immunity and Sovereign Immunity are related to the same degree of extent to which Sovereign

Immunity is related to Diplomatic and Consular Immunity: while Diplomatic Immunity has been separately codified

under Vienna Convention of Diplomatic Relations (1961), Head of State Immunity has been maintained subservient to

the Sovereign Immunity. Lastly, I will present and analyze relevant precedents in the hope of shedding some light on

the legal – and perhaps – political reasoning behind them.

KEY WORDS: Jurisdictional Immunities of States • Head of State Immunity • Executive Prerogative

1. STATE IMMUNITY: ORIGINS AND CODIFICATION

Institut du Droit International was the first international organization to adopt a

resolution on the jurisdiction of courts against foreign States or Heads of State in 1891. A new

resolution was adopted by the Institut in 1954, stating that acts of sovereign authority (“actes

de puissance publique”) of a foreign State or of a legal person under the authority of such a State

shall not be entertained by the national courts, while proceedings related to an act which could

not be considered of sovereign authority may be tried. The definition of the acts of sovereign

authority was trusted to the lex fori1.

* PhD Candidate, School of International Law, China University of Political Science and Law; Master of Economics, School of Economics, Capital University of Economics and Business (2009-2011); Bachelor of Arts, Faculty of Political Science, University of Bucharest (2005-2009); Erasmus Scholar, University of Florence, Italy (2006-2007); Dharmasiswa Scholar, National University, Indonesia (2007-2008) E-mail: [email protected] 1 Annuaire de l'Institut de Droit International, Vol. 45, No. 2, 1954, pp. 293-295, in: I.M. SINCLAIR, The European

Convention on State Immunity, The International and Comparative Law Quarterly, Vol. 2, No. 2, April 1973, pp. 260-261


League of Nations Committee of Experts for the Progressive Development and Codification

of International Law also tried to codify the States Immunity; however, when reported to

Council of the League in 1928, no action was taken. The International Law Commission started

to scrutinize the topic since 1949, yet with no notable progresses. Finally, the International

Law Association, at its 1952 session, adopted a resolution which recommended “that a foreign

State should not be covered by immunity from legal process when acting in a private capacity”2.

The first United Nations attempt to codify in a unitary body the sovereign immunity3 of

states to foreign jurisdiction dates back in 1977, when the General Assembly proposed

International Law Commission to scrutinize the issue. The span of the negotiations to reach a

final consensus accommodating the gaps, inconsistencies and developments of customary law

in this regard extended to three decades. By its very implications, the state immunity is

situated at the boundary of customary law, from which it originates, and modern international

law, to which it sometimes conflicts with4. Certain conflicts have also been noted between state

immunity and Jus Cogens5.

In 1999, the International Law Commission established a Working Group to look into the

issue of jurisdictional immunity of States, Heads of States and States’ property highlighting and

refining the most relevant developments in the field, namely: ”(1) The concept of a State for the

purposes of immunity; (2) Criteria for determining the commercial character of a contract or

transaction; (3) Concept of a State enterprise or other entity in relation to commercial

transactions; (4) Contracts of employment and (5) Measures of constraint against state

property.”6 It shall be noted that the issue of Heads of State immunity has not been considered

at the time.

The United Nations Convention on Jurisdictional Immunities of States and Their Property

(“UN Convention on Immunities”) was later adopted by the United Nations General Assembly on

2 December 2004. Article 30 of the Convention provides that “it shall enter into force on the

thirtieth day following the date of deposit of the thirtieth instrument of ratification, acceptance,

2 Ibid., pp. 261-262

3 “Sovereign immunity” is hereby used interchangeably with “state immunity” and “jurisdictional immunity”.

4 Hazel FOX, Enforcement Jurisdiction, Foreign State Property and Diplomatic Immunity, The International and

Comparative Law Quarterly, Vol. 34, No. 1, January 1985, pp. 437-438 5 Lorna McGREGOR, State Immunity and Jus Cogens, The International and Comparative Law Quarterly, Vol. 55, No. 2,

April 2006, pp. 437-445 6 Annex to the Report of the International Law Commission on the Work of its Fifty-First Session, A/54/10, 3 May – 23

July 1999, par. 7


approval or accession”; however, only 16 instruments of ratification have been deposited7 as of

November 2014, while 33 signatories have been registered as the Convention was open for

signature until 17 January 20078. Regarding the heads of State, the Convention only limits to

mention that it bears no “prejudice to privileges and immunities accorded under international

law to heads of State ratione personae.”9

However, various contributions to the codification of State Immunity have been made

either on a regional or a national level. On a regional level, the European Convention on State

Immunity signed in Basle, 16 May 1972, entered into force on 11 June 1976. The European

Convention on State Immunity has been the first serious multilateral effort made to align the

existing inconsistencies and disparities in practicing State Immunity at national level and the

circumstances in which such immunity could be claimed. At its time, the Convention set up the

limits within which state immunity, in its restrictive approach, was regarded or started to be

regarded (as it was the case of the United Kingdom) by an important group of Western

European States10. It shall also be noted that no Central or Eastern European States have

signed the Convention, though members of the Council of Europe; as their economy was – to a

varying extent – centralized, it would render the distinction between jure imperii and jure

gestionis impossible. Also, no references were made in the Convention concerning the Heads of

State.

On a national level, the Sovereign Immunities Act (1978) in the United Kingdom and the

Foreign Sovereign Immunity Act (1976) in the United State have been subjected to an extensive

analysis in the legal literature11. It shall be noted that the Sovereign Immunities Act also covers,

besides the Heads of State and their family, their private servants, a provision overlooked in

similar statutes12. The Foreign Sovereign Immunities Act, however, does not separately address

the issue of Heads of State, yet defines “state”, inter alia, as “an agency or instrumentality of a

7 The latest by Finland, as of 23 April 2014.

8 The latest being the Islamic Republic of Iran, as of 17 January 2007.

9 United Nations Convention on Jurisdictional Immunities of States and Their Property, adopted by the general Assembly

of the United Nations on 2 December 2004, not yet in force, Art. 3, par. 2 10

For further discussion over the main challenges posed by the Convention at the time and an overall analysis, see SINCLAIR, op. cit., 1973, pp. 254-283 11

The analysis of the British or American national statutes on Sovereign Immunity does not constitute the goal of the current article. For a concise analysis of the topic, see for UK, D.W. BOWETT, The State Immunity Act 1978, The Cambridge law Journal, Vol. 37, No. 2, November 1978, pp. 193-196, for US, Xiaodong YANG, State Immunity outside the State Immunity Act, The Cambridge Law Journal, Vol. 60, No. 1, March 2001, pp. 17-20 12

United Kingdom State Immunity Act, 1978, Art. 20, par. 1, it. c)


foreign state”, which, inter alia, is regarded as “an organ of a foreign state”13. Also the potential

conflicts between the Foreign Sovereign Immunities Act and the precedents of Long arm

jurisdiction in the United States would constitute an academically challenging topic for further

research.

Lastly, though China has previously signed the UN Convention on Immunities on 14

September 2005, the Convention has not been ratified by the National People’s Congress as we

speak. Approximately one month later, on the 25 October 2005, “the Law of the People's

Republic of China on Judicial Immunity from Measures of Constraint for the Property of Foreign

Central Banks” (“China Central Banks Immunity Law”) was adopted by the Standing Committee

of the National People’s Congress14. Though Chinese scholars15 have considered the China

Central Banks Immunity Law as an anticipation towards a possible migration to the doctrine of

restricted immunity, one may argue that the passage of the law in just a month after signing the

UN Convention on Immunities may convey the message that China is ready to make some

changes in her absolute immunity doctrine but is not yet ready to fully accept the restrictive

doctrine. According to Zhu, the main goal for adopting the Central Banks Immunity Law resides

in the legal void created at this level after the return of Hong Kong. In this respect, Wu Dawei,

Deputy Minister of Foreign Affairs, noted: “After the return of Hong Kong, the UK State Immunity

Act does not apply to Hong Kong any longer, and there is no any statute protecting the property

of foreign central banks in the HK SAR, and therefore, a few foreign central banks are concerned

about it.”16 However, shall that be the case, the said law could have been adopted in the

immediate aftermath of the return of Hong Kong. Lastly, it should be noted that, by vesting

Central Banks with judicial immunity, China adheres to a doctrine advanced by the United

Kingdom and followed, inter alia, by Singapore, Pakistan or South Africa. The Continental law

does not grant immunity for commercial usage while Australia does not recognize the presence

of foreign central banks on its territory.

13

An Act to define the jurisdiction of United States courts in suits against foreign states, the circumstances in which foreign states are immune from suit and in which execution may not be levied on their property, and for other purposes (Foreign Sovereign Immunity Act), Public Law 94-583, 94

th Congress, Chapter 97, Item 1603.

14 For an accurate analysis of the statute, see Lijiang ZHU, State Immunity from Measures of Constraints for the Property

of Foreign Central Banks: The Chinese Perspective, Chinese Journal of International Law, Vol. 6, No. 1, 2007, pp. 67-81 15

For an argument in favour of China’s potential future opening towards the restrictive doctrine, see Dahai QI, State Immunity, China and its Shifting Position, Chinese Journal of International Law, Vol. 7, No. 2, 2008, pp. 307-337 16

Dawei WU, “The Explanation on the Proposal Submitted for Deliberation on Granting Judicial Immunity from Measures of Constraints to the Property of Foreign Central Banks in China” (Guanyu Tiqing Shenyi dui Zaihua Waiguo Zhongyang Yinhang Caichan Geiyu Sifa Qiangzhi Cuoshi Huomian de Yi'an de Shuoming), Gazette, No. 1, 545, (as translated by ZHU) in: ZHU, op. cit., 2007, p. 74


2. HEAD OF STATE IMMUNITY

a) Introduction

Head of State Immunity is a subservient doctrine of foreign sovereign immunity. The first

debates concerning the Head of State Immunity in the United States occurred during the very

first precedent of sovereign immunity in the country, The Schooner Exchange vs. M’Faddon

(1812). The restricted space reserved for this paper deters any attempt to further detail the

case17. I should reproduce, however, the foundational premise of the United States Supreme

Court for The Schooner Exchange: “The jurisdiction of the nation within its own territory is

necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself… All

exceptions, therefore, to the full and complete power of a nation within its own territories, must

be traced up to the consent of the nation itself. They can flow from no other legitimate source.”18

It should also be noted that one major argument presented is “the assumption that the foreign

sovereign has not consented to suit in our courts.”19 Perhaps the most interesting argument used

during the trial was that the “executive department… represents the sovereignty of the nation in

its intercourse with other nations”20. This statement alone emphasizes the relevance of the

executive power in conducting the foreign affairs and, consequently, the lack of jurisdiction on

behalf of the judiciary. Inasmuch as the Executive’s suggestion is concerned, it asserted: “That

in as much as there exists between the United States of America and Napoleon, emperor of France

and king of Italy, (…) a state of peace and amity; the public vessel of his said Imperial and Royal

Majesty, conforming to the law of nations, and laws of the said United States, may freely enter the

ports and harbors of the said United States, and at pleasure depart there from without seizure,

arrest, detention or molestation.”21 Such a remark indicates the importance attached by the

Executive to the “state of peace and amity” existent between the two countries and the

influence it exerted over the case. Accordingly, since the Judiciary declined its competencies in

the matters of Foreign Affairs, ergo refusing to exert jurisdiction, it would be safe to assume

that the Executive employed the customary law only as an instrument to reinforce the friendly

bilateral relations with the sovereign of France.

17

For a concise depiction and analysis of the case, see J.S. REEVES, A Note on Exchange v. M’Faddon, The American Journal of International Law, Vol. 18, No. 2, April 1924, p. 320 18

The Schooner Exchange, 11 U.S. (7 Cranch) at 136 in: Lewis S. YELIN, Head of State Immunity as Sole Lawmaking, Vanderbilt Journal of Transitional Law, Vol. 44, No. 911, 2011, p. 935 19

Id. at 133 in: YELIN, op. cit., 2011, p. 934 20

Ibid. at 132, 136 in: YELIN, op. cit., 2011, p. 940 21

Ibid. at 118 in: YELIN, op. cit., 2011, p. 932


Interestingly, “The Schooner Exchange” was not the first case where the Executive tried to

limit the jurisdiction of the Judiciary. In a post-Civil war case, i.e. United States vs. Lee, the

plaintiff sued federal officials for the possession of land comprising Arlington National

Cemetery. The United States Government urged dismissal of the suit for lack of jurisdiction,

arguing that the officials were immune from suit as they possessed the land on authority from

the Executive Branch. Naturally, the Court declined such a claim22.

We have hereby established how the sovereign immunity has been regarded as based on

the Executive Prerogative of assuming the foreign affairs, prerogative denied to the Judiciary.

While considering the reasoning for such a sovereign immunity, one of the arguments used was

the analogy between acts committed by a foreign state (no distinction between jure gestionis

and jure imperii was considered at the time23) and the acts of a Sovereign/ Head of State.

b) Case Law

The first, and likely, the most debated case of Head of State immunity was the precedent

of General Augusto Pinochet, the former Head of State of Chile. On 23 October 1998, General

Pinochet was arrested in London following an extradition request by Spain to the British

authorities24.

Less than a year later, on 27 May 1999, a warrant of arrest along with an indictment were

issued against Slobodan Milosevic, President of Federal Republic of Yugoslavia at the time, and

four other high ranking Yugoslavian officials25.

The two cases present certain differences whose relevance worth being discussed. Firstly,

General Pinochet was arrested by authorities of a third state, in response to an extradition 22

For further details of the case, see YELIN, op. cit., 2011, p. 946 23

Such a distinction was firstly employed in the United States in 1926 in Berizzi Brothers Co. vs. Steamship Pesaro. At an earlier stage in the proceedings, the Executive informed the court that it did not recognize the immunity of a foreign sovereign vessel used in commercial activities. Consequently, the district court denied the claimed immunity. However, that decision was later vacated given a procedural irregularity. In 1952, the Tate Later was issued which marks a clear-cut passage from the doctrine of absolute immunity (with certain reservations) to restrictive immunity. 24

The legal documents pertaining to the case have been largely presented in Virpi KOIVU, Head-of-State Immunity v. Individual Criminal Responsibility under International Law, Finish Yearbook of International Law, Vol. 12, 2001, pp. 305-330 as follows: Regina v. Barte and the Commissioner of Police for the Metropolis and others EX Parte Pinochet and Regina v. Evans and another and the Commissioner of Police for the Metropolis and others EX Parte Pinochet. House of Lords, Session 1998-99, Judgments of 25 November 1998 [On Appeal from a Divisional Court of the Queen's Bench Division, reprinted in 37 International Legal Materials (1998) 1302], 15 January 1999 [Opinions of the Lords of Appeal for Judgment in the Cause in re Pinochet, reprinted in 38 International Legal Materials (1999) 430], and 24 March 1999 [On Appeal from a Divisional Court of the Queen's Bench Division, reprinted in 38 International Legal Materials(1 999) 581]. The said materials were unavailable for direct consultation during the research. 25

ICTY, Press Release, 27 May 1999, The Hague, JL/PIU/403-E, available at http://www.icty.org/sid/7765 as of 26 November 2014


request of another state than the state in which he committed the alleged offences. For

President Milosevic, the indictment was issued by an international tribunal. Secondly, while

General Pinochet was no longer a Head of State at the time of his arrest, President Milosevic

was in power when the warrant was issued. This raises multiple questions with regard to the

expiry of the immunity once the mandate is over and with regard to whether absolute

immunity can still be enjoyed while tried by an international tribunal. Even if, at the respective

time, General Pinochet did not benefit of immunity provided he no longer hold the presidential

mandate, the prosecution under the universal jurisdiction requires a legal basis in the

international law, be it treaty law or customary international law. In the case of general

Pinochet, the Convention against Torture and Cruel, Degrading Treatment or Punishment (1984,

enforced in 1987, “Torture Convention”) has been applied. Convention’s article 7, item 1,

provides for a general obligation to extradite or prosecute and reads as it follows: “The State

Party in the territory under whose jurisdiction a person alleged to have committed any offence

referred to in Article 4 is found shall in the cases contemplated in Article 5, if it does not extradite

him, submit the case to its competent authorities for the purpose of prosecution.”26 The article 5,

paragraph 2, to which article 7 appeals to, states: “Each State Party shall likewise take such

measures as may be necessary to establish its jurisdiction over such offences in cases where the

alleged offender is present in any territory under its jurisdiction and it does not extradite him

pursuant to Article 8 to any of the States mentioned in paragraph 1 of this Article.”27 Read

together, the two articles seem to provide the legal framework for universal jurisdiction,

materialized either as prosecution or extradition. However, according to Koivu, the defence

might have used different arguments to avoid prosecution such as, inter alia, foreign sovereign

immunity, head of state immunity (for the alleged crimes committed during the mandate),

forum non conveniens, concurrent jurisdiction and the problem of evidence28.

The indictment issued against President Milosevic, on the other hand, may indicate an

emerging opinion juris in the sense that removal of head-of-state immunity has been found

both in the International Criminal Tribunal for Rwanda as well as for Yugoslavia29. Such a

26

Convention against Torture and Cruel, Degrading Treatment or Punishment, 1984, art. 7, par. 1 27

Ibid, art. 5, par. 2 28

KOIVU, op. cit., 2001, p. 308 29

Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, UN Doc. S/25704, 25 May 1993; Statute of the International Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible


removal is also present in the Rome Statute of International Criminal Court30. It shall be noted

that, while the principles evoked in the case of President Milosevic have been applied by an

international tribunal, they may not necessarily apply in extenso at national level courts, given

the conflict of jurisdiction between the Executive Prerogative in International Affairs and the

Judicial Power.

Another situation when the immunity may be lifted is the case of self-declared Heads of

State purportedly leading a country not officially recognized. Such is the case of the self-

proclaimed President of Republica Srspka Radovan Karadzic; in a suit against the Bosnian Serb

politician, the United States did not recognize his immunity and the Court found out that “It is

the duty of the Courts, in a matter so intimately associated with our foreign policy… not to

enlarge an immunity to an extent which the government … has not seen fit to recognize.”31

In the case of the former Panama President Adela Amalia Noriega Mendez, the Judiciary

followed the same logic and refused to acknowledge him as a Head of State, claiming that the

United States has never recognized him as Panama’s legitimate and constitutional ruler. As the

Court of Appeal put it, “…the record indicates that Noriega never served as the constitutional

leader of Panama, that Panama has not sought immunity for Noriega…”32

In the case of Lafontant vs. Aristide, the US Court maintained the foreign policy

orientation of the Executive, recognizing the defendant as the President of Haiti (though he has

been previously overthrown and sent into exile in the United States) ergo granting him Head

of State immunity. The Court acknowledged that the defendant qualified for immunity, despite

living into exile for more than two years prior to the decision33.

Concerning the retroactive application of Head of State immunity, the case of President

Ferdinand Marcos is highly relevant. In Sison vs. Marcos, the US District Court for the District of

Hawaii was faced with the question of the immunity of a former head of state for the acts

committed during his tenure as a sovereign. Interestingly as it might have been finding

for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, SC Res. 955, 8 November 1994. 30

Statute of the International Criminal Court, Rome, 18 July 1998, in force since 1 July 2002, UN Doc. A/CONF.183/9, 1998. 31

Kadic vs. Karadic, 70 F.3d 232, 64 USLW 2231 (2nd Cir. N.Y. 1995), at 248, available at https://www.quimbee.com/cases/kadic-v-karadzic as of 25 November 2014 32

United States vs. Noriega, 117 F.3d 1206,47 Fed. R. Evid. Serv. 786, 11 Fla. L. Weekly Fed. C 103 (11th Cir. Fla. 1997), available at http://caselaw.findlaw.com/us-11th-circuit/1089768.html as of 25 November 2014 33

Lafontant vs. Aristide, 844 F.Supp. 128, 62 USLW 2478 (E.D.N.Y 1994), available at http://ny.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19940127_0000018.ENY.htm/qx as of 25 November 2014


whether a former head of state could be held liable in such a case and whether the decision in

the General Pinochet’s case remains consistent, the Court refused to take a position as regards

the immunity of Heads of State and considered that “the judicial branch did not have the

competence to examine the question, but it was the task of the executive branch to make such

determinations”34. The remanding of Sison vs. Marcos case could therefore be construed as

based on the lack of judiciary prerogatives in the foreign affairs and, consequently, the lack of

jurisdiction.

Though some scholars would agree the Heads of States immunity is not absolute and,

shall it regard acts prohibited by Jus Cogens, it could be lifted35, the Arrest Warrant case may

prove the contrary, as it applied an absolute doctrine of immunity36, making no distinction

between acts committed in an official capacity and those committed in a private capacity, as

long as they have been committed during the term of office. In the light of the cases presented

above, particularly Sison vs. Marcos and Lafontant vs. Aristide, the approach chosen by the

International Court of Justice appears conservative.

Lastly, though not strictly related to the heads of state immunity, two particular cases

have to be presented provided the light they shed upon the jurisdiction in cases of sovereign

immunity with elements of Jus Cogens violations. Both the Italian Corte di Cassazione (Supreme

Court) in Ferrini vs. Federal Republic of Germany37 and the Greek Areios Pagos (Supreme Court)

in Prefecture of Voiotia vs. Federal Republic of Germany38 have not granted Federal Republic of

Germany immunity from jurisdiction, as the cases concerned Jus Cogens violations.

In Ferrini vs the Federal Republic of Germany, Ferrini brought a civil claim for

reparations before the Italian courts, claiming to have been forcibly deported from Italy to

Germany by the German military forces during the Second World War, for the purpose of

34

Ellen L. LUTZ, The Marcos Human Rights Litigation: Can Justice be Achieved in U.S. Courts for Abuses that Occurred Abroad?, Boston College Third World Law Journal, Vol. 14, Issue 1, Art. 3, 1994, p. 49 35

KOIVU, op. cit., 2001, p. 314 36

Indeed, not in the case of Heads of States, but on ministerial level (Abdoulaye Yerodia Ndombasi was at that time the Minister of Foreign Affairs of the Democratic Republic of the Congo). 37

Ferrini vs. Federal Republic of Germany, A case summary is available at http://www.internationalcrimesdatabase.org/Case/1090, while the Judgment (in original) is available at http://www.asser.nl/upload/documents/DomCLIC/Docs/NLP/Italy/Ferrini_Cassazione_6-11-2003.pdf, as of 24 November 2014 38

Prefecture of Voiotia vs. Federal Republic of Germany, A case summary is available at http://www.internationalcrimesdatabase.org/Case/3247/Voiotia-v-Germany/, while the Judgment (in English) is available at http://www.internationalcrimesdatabase.org/upload/ICD/Upload3247/Prefecture%20of%20Voiotia%20v.%20Germany%20-%20Greece%20-%202000.pdf, as of 24 November 2014


forced labour. The Corte di Cassazione construed the military actions as jure imperii, however

noting that by defining the prohibition of force labour as a peremptory norm of international

law, the Jus Cogens must trump the plea of sovereign immunity as an ordinary customary rule.

The protection of immunity was therefore denied to Germany in order to safeguard Jus Cogens.

Similarly, in the case of Prefecture of Voiotia vs. the Federal Republic of Germany, the

Greek Areios Pagos held that Germany did not enjoy immunity in a civil claim for reparation

arising out of Jus Cogens violations committed during the Second World War (namely the

Distomo Massacre). However, the Areios Pagos did not apply the normative hierarchy theory

but judged that a state is understood to have waived any immunity by violating a peremptory

norm under international law.

These two sovereign immunity cases may one day constitute as valuable obiter in cases

concerning the Heads of State immunity. Nevertheless, their sheer occurrence does not render

the Heads of State immunity any more vestigial.

c) Some theoretical considerations

The subservience of Heads of State immunity doctrine to the absolute sovereign

immunity doctrine, irrespective of the nature of crimes committed and including violations of

Jus Cogens, presents, as depicted above, inherent contradictions. Firstly, I should note that an

individual acting in a functional capacity may invoke this situation as a defence in a national

tribunal, however cannot avail of the same arguments to defend himself in front of an

International Criminal Tribunal. Moreover, the State on behalf of which he acted, as an organ, a

state that could have tolerated, authorized or even organize such an act, may readily invoke

jure imperii as an absolute form of sovereignty thus avoiding any proceedings while claiming

the lack of jurisdiction on behalf of the Court.

The inherent conflict between the absolute immunity of states and the Heads of State

immunity on one hand, and peremptory norms of international law, on the other hand,

becomes evident while reading, for instance, The Torture Convention39. Article 14(1) of the said

Convention provides that every State must "ensure in its legal system that the victim of an act of

torture obtains redress and has an enforceable right to fair and adequate compensation". It thus

becomes clear that by granting Heads of State immunity, the Courts “thwarts the very purpose

39

See Supra, p. 7


of the Convention”40. Mutatis mutandis, this could be applied to many other international crimes

committed by Heads of States or other relevant official organs in their capacity41.

In the author’s view such a conflict is maintained for the precise will of not making an

exception, nor discussing one, at the level of Heads of State immunity. Though such a doctrine

may be maintained for the sake of entertaining a certain legal certainty at the level of

international community and, as showed earlier, based on Foreign Policy reasoning, it may

produce (if not already produced) perverse effects, such as States hiding behind their organs,

as only they can be prosecuted before an international tribunal (or, as noted earlier in the case

of President Noriega or Karadzic, in front of a domestic court).

Different approaches have been adopted, as mentioned above, by the Italian and Greek

Supreme Courts. Another landmark decision directly concerning official organs acting in their

capacity shall be succinctly presented. In the Adler & al. case42 23 US agents and 2 Italian

agents were sentenced for their role in the extraordinary rendition (which involved the act of

abduction) to Egypt of the cleric Abu Omar. Immunity from criminal proceedings was granted

to 3 CIA agents accredited as diplomatic agents at the time of the abduction. The decision and

the different treatment accorded to these US organs raise some theoretical concerns. Firstly,

the judge did not contend he was applying an exception to the rule of sovereign immunity,

moreover he assumed that the abduction was ordered by the US Government and received

some consent on behalf of the Italian Government. The agents who also held consular function

were not covered by the Vienna Convention on Consular Relations (1963), since abduction is not

regarded as an official capacity of consular agents. Secondly, concerning the diplomats, though

the 1961 Vienna Convention on Diplomatic Relations includes “the protection of state interests”

within the provisions of Article 3, abduction is a highly questionable manner of such protection.

Though the diplomats enjoy personal immunity, once their function is relinquished, they could

be – at least in theory – sued for any acts committed in their non-official capacity during their

mandate43. Secondly, the judge of the Tribunal of Milan learnt he cannot prosecute the Italian

agents of the intelligence agency since the Italian Government invoked State secrecy, stating

that court proceedings might disclose sensitive information which endanger national security.

40

Micaela FRULLI, Some Reflections on the Functional Immunity of State Officials, Symposium: International Law in Italian Courts, 2009, p. 93 41

See the Arrest Warrant case. 42

Adler et al., Tribunale di Milano (Sez. IVpenale), 1 February 2010, No. 12428 in: FRULLI, op. cit., 2009, pp. 95-96. 43

The hypothetical situation of prescription may also be considered as usually diplomats serve at most two terms, each reaching at most 5 years.


The judge therefore considered likely the existence of an agreement between the Italian and US

Government allowing US CIA agents to abduct Abu Omar for the purpose of rendering him

abroad. Such an agreement, shall it be the case, would run against the rules protecting

fundamental rights of individuals, but also against the provisions concerning the conclusion of

treaties.

The Adler case is relevant to the current analysis through two implications: firstly, it sets

up a possible obiter in making exceptions from the sovereign immunity in acts of jure imperii44.

Secondly, it emphasizes, once again, the Executive prerogative in dealing with foreign affairs

and the impossibility of the Judiciary to address serious violations of Jus Cogens, due to this

blockage.

Concerning the role played by Jus Cogens in the State Immunity from jurisdiction, it

should be noted that the International Law Commission established a Working Group on State

Immunities in 1999, as mentioned earlier, in order to take into account the recent

developments of State practice and opinio juris since the adoption of the draft articles in 1986.

The Group highlighted the “existence or non-existence of jurisdictional immunity in actions

arising, inter alia out of violations of jus cogens norms”45. Although the Working Group noted an

interest into the relationship between sovereign immunity and Jus Cogens norms, it concluded

that the issue “did not seem to be ripe enough for the Working Group to engage in a codification

exercise over it”46. The Working Group then further referred the issue to the Sixth Committee

which did not consider the relationship between the Convention and Jus Cogens norms any

further.

3. CONCLUDING REMARKS

Though the sovereign immunities have registered a general trend of diminishing their

scope from absolute to restrictive, the Head of State immunities remain more than vestigial.

The cases presented above, concerning both Heads of State, minister-level dignitaries and

diplomats set very diverse precedents, yet leave the impression of Executive involvement in

Judiciary by employing the Executive Prerogative in foreign affairs. Especially after the Arrest

Warrant case, discussed above, the international law became sharper than ever in regard to 44

In this case, one cannot appeal to the breach of national security as the Court was not located in the harmed state. 45

Annex to the Report of the International Law Commission on the Work of its Fifty-First Session, A /54/10 (3 May-23 July 1999) para 4 (quoting General Assembly Resolution5 3/98, 8 Dec 1998) in: McGREGOR, op. cit., 2006, pp. 437-438 46

Ibid.


Heads of State immunity. The previous diversity in the US case law presented above also

suggests a foreign policy rationale behind the Courts decisions, yet within a legal framework.

The multiple Jus Cogens alleged violations, particularly acts of torture, invoked by the plaintiffs

makes one wonder whether the immunities have not superseded their initial scope by blocking

the prosecution of International Law peremptory norms violations. Adding a protocol of

customary law norms to the Convention on Sovereign Immunities may represent a solution to

the current status quo.

On a final note, the current article is neither a review nor an assessment of the issue of

Heads of State immunity; it comprises some reflections on the most familiar case law while

most likely ignoring some other relevant ones. However subjective it may be, it is the author’s

belief that it manages to encompass the current state of affairs where the Executive Branch is

trusted to represent the interests of a state in litigation, yet with little – if any – judicial support.

Such a situation can only undermine justice and respect for the situations arising from the use

of international law.


BIBLIOGRAPHY

Statutes & other legal documents

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Convention against Torture and Cruel, Degrading Treatment or Punishment, 1984;

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