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The Downfall of Head of State Immunity

Image © ABC News

About The Author

Jessica Johnson (Criminal Editor)

Jessica is currently undertaking a study year abroad at the University of Copenhagen, Denmark, studying modules such as Law and Literature, The Law of Armed Conflict, and EU Development Law. She aspires to be a solicitor and is currently interested in personal law, specifically criminal and tort.

In addition to the large salary and multitude of property, acting as Head of State brings a great deal of privileges. One of the more controversial benefits is Head of State immunity. When successfully invoked, this creates immunity for a Head of State from a foreign state’s criminal jurisdiction. It stems from customary international law; in other words, an established state practice universally accepted as law. In order to qualify, the individual must be recognised as Head of State by their country. It is for each state to determine who this is. The Head of State could be a monarch, or an elected figure; in the UK, for example, Queen Elizabeth II is the current Head of State. However, as the effective head of government, the Prime Minister is also entitled to this immunity. On the other hand, the Head of State of a republic is the elected President.

In the case of Re Pinochet [1999], Lord Browne-Wilkinson summarised the history of the immunity as follows:

State immunity probably grew from the historical immunity of the person of the monarch. This immunity enjoyed by a head of state in power… is a complete immunity attaching to the person of the head of state… and rendering him immune from all actions or prosecutions whether or not they relate to matters done for the benefit of the state.

It is clearly a great protection for those in power. From a historical perspective, absolute Head of State immunity has often prevented monarchs and governmental officials from being brought to justice. The UK’s monarchy has made full use of this privilege in times past; Queen Mary I, for example, had approximately 300 Protestants burnt at the stake during a mere three-year reign, without facing sanctions. The sovereign’s court system was designed to protect the sovereign and his or her loyal subjects, and thus the sovereign could do no wrong. It was this basis from which the custom developed.

The custom’s justification now lies primarily in issues of practicality. It is considered inefficient for the monarch, head of government, or President to focus on issues of criminal responsibility, as opposed to pursuing their goals. Additionally, it may be difficult to prove what a Head of State did or did not know with regards to their government’s behaviour. Therefore an easier way of addressing the issue (albeit not necessarily a just one) is to punish those directly involved in the criminal act, as opposed to the Head of State who is potentially overseeing it.

Nonetheless, what was once an absolute theory of Head of State immunity is now subject to moderation and restriction. Following several travesties of the early twentieth century, efforts were made to reign in the custom. For example, Principle III of the Principles of International Law Recognised in the Charter of the Nuremberg Tribunal stated that:

The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.

Nowadays, a Head of State can be investigated in much the same way as any other potential defendant. Allegations of crimes committed by the Head of State are brought to the attention of the relevant authorities. For example, in the instance of war crimes, crimes against humanity, genocide, and torture, the relevant investigation team is the Metropolitan Police Counter Terrorism Command. If the investigation finds sufficient evidence of the crime, it will be transferred to the Crown Prosecution Service ("CPS"). A decision will be made as to whether Head of State immunity is applicable. This assessment will be made with regards to the gravity of the crime, relevant case law, and applicable Conventions. The outcome is open to judicial review. Perhaps ‘Bloody Mary’ would not have been quite so bloody had the threat of the CPS been looming over her.

The demise of Head of State immunity can be attributed to the ever-growing influence of international human rights law. This October, we saw not one, but two serving Heads of State being brought to court. One of these incidents involved Prince Nasser of Bahrain; following pro-democratic revolutions within Bahrain, governing authorities proceeded to torture those involved. The High Court in London has ruled that Prince Nasser of Bahrain is not immune from prosecution over the torture of these refugees, thus overturning the CPS’s decision not to proceed to trial. It is the responsibility of the UK courts to bring the case as under s.134 of the Criminal Justice Act 1988 the UK is granted jurisdiction to pursue overseas torture allegations.

In addition to allegations against Prince Nasser’s regime, evidence of Prince Nasser’s direct involvement in the torture of political prisoners had previously been submitted by a former UK–based detainee. The immunity was waived due to the serious nature of these accusations. The case has now been handed over to the police for further investigation.

The second recent example is even more pivotal. Uhuru Kenyatta, the fourth and current President of Kenya, has come before the International Criminal Court (ICC) in The Hague to face charges of crimes against humanity. He is the first serving Head of State to do so, although he argues that he is there in a personal capacity and not as president. This statement was arguably designed to portray Kenyatta ‘as an individual and not an institution’, thus depicting himself in a more positive light.

Kenyatta can declare himself to be whomever he wishes; the significance of his appearance still remains overwhelming. Head of State immunity essentially relies on the presumption that those in power are somewhat “above the law”. Due to their importance in both national and foreign matters, they cannot take the time to appear in Court as any other human being would. Kenyatta appearing at the ICC therefore demonstrates that Heads of State are just as legally accountable as any of their subordinates, thus setting a new precedent. Perhaps it will be more difficult for Heads of State to claim immunity in the future. If one Head of State has appeared at the ICC, then there is no reason why others cannot do so too.

The crimes that Kenyatta is charged with concern violence following the 2007 Kenyan elections. Kenyatta’s lawyers argue that the charges against him are politically motivated, brought about by Kenyatta’s opposition such as the Orange Democratic Movement. The case demonstrates one of the crucial problems that can be faced when prosecuting a Head of State. The prosecution has argued that Kenyatta and his supporters are obstructing the police investigation due to the amount of key witnesses deciding not to offer evidence in court. Whether or not this is due to actions by the defence is uncertain. It could purely be that the witnesses are afraid to testify against their Head of State, especially considering the violent allegations involved.

Of course, these instances have not sprung out of nowhere. The UN Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment (1987) (“the UN Convention”) waived all supposed justifications and exceptions allowing torture, which included Head of State immunity. Human rights were initially just a factor to be considered in matters of immunity, but the UN Convention made them a priority. Nonetheless, it must not be forgotten that the UN Convention only concerns ‘torture and other cruel, inhuman and degrading treatment and punishment’, as set out in Article 1 of the Convention. However, there are plenty more human rights to be found in the European Convention of Human Rights (“ECHR”), applicable in the UK following the Human Rights Act 1998, which are not covered under the UN Convention.

With regards to seeing the UN Convention in action, the most prominent case is that of Re Pinochet [1999]. General Augusto Pinochet Duarte, former Head of State of Chile, was held accountable for genocide, murder, and acts of torture committed under his leadership. The key legal question was whether or not Head of State immunity is applicable only whilst the Head of State remains in office. The CPS argued it did, and inevitably, Pinochet argued that it did not. He found his legal basis within s.14 of the State Immunity Act 1978. The Act attempted to codify the custom, providing limited examples of who is entitled to immunity (although it mainly concerns commercial activities). These include sovereigns of state, and heads of government. Nonetheless, the House of Lords held that under the UN Convention, Pinochet was no longer entitled to immunity and that his extradition to Spain to face charges was lawful. When considering the potential effect of Pinochet’s immunity, Lord Browne-Wilkinson stated that:

… [T]he whole elaborate structure of universal jurisdiction over torture committed by officials [would be] rendered abortive and one of the main objectives of the Torture Convention - to provide a system under which there is no safe haven for torturers – [would be] frustrated.

It became clear that there is no longer a “safe haven” for state officials; all must bow down to human rights (or, at least, the right concerning torture and degrading treatment and punishment). A hierarchy of international customs appears to be at play here.

Sir Geoffrey Nice QC illustrates in his lecture ‘Head of State Immunity – a Useful Relic?’, that this could be due to what international crimes essentially mean. For a crime to be considered international, regardless of national law, customs, and practices, there must be a common agreement that it is absolutely necessary to prosecute.

International crimes constitute violations of higher law (jus cogens) norms and that such norms must prevail over international immunities.

Although neither international courts, nor most national courts, have yet established this point, it certainly has a great deal of merit. As demonstrated by the ECHR, there are certain principles and customs that are considered a higher form of law than others. However, this once again brings us back to the issue of which human rights take precedence over Head of State immunity. Bringing all human rights into consideration would raise far too many issues with regards to attribution of responsibility. The Head of State should absolutely be aware of any torture occurring under their watch. However, whether they can be aware of every violation of the ECHR is extremely improbable. This issue will have to continue being addressed on a case-by-case basis.

Seemingly, there is no general consensus as to when or why Head of State immunity should apply. The above case of Pinochet essentially held that it does not apply in instances of torture. On the other hand, the notorious case of Tony Blair would suggest otherwise. It is no secret that during the second Iraq war, certain atrocities were carried out by British troops. These include maltreatment and torture of detainees. The allegations have been brought to light by both the Al-Sweady inquiry (see my September article on ‘Liability in War’), and the Baha Mousa inquiry. As the acting Head of State at the time, Blair should arguably have been held responsible for these war crimes. Due to the overwhelmingly large number of allegations, Blair could hardly argue he was unaware of the atrocities. It has even been suggested that a ‘policy of torture’ was in operation; yet the Head of State accountable was never brought to justice. It is difficult to reconcile this case with that of Pinochet. One Head of State was held accountable, and the other managed to avoid legal consequences entirely.

The October cases of both Prince Nasser of Bahrain, and Kenyatta are demonstrating the gradual downfall of Head of State immunity. Nevertheless, this is hardly the end of the custom. The law surrounding this category of immunity appears to be entirely up in the air with regards to when the immunity is to be waived, why this is the case, and to whom it remains to safeguard. The UK has come a long way in the protection and preservation of international human rights since the more tyrannical Heads of State. Nonetheless, hundreds of years later and it is still unclear what the ultimate role of Head of State immunity is. Are Heads of States accountable for their crimes, or are they still considered to be above the law? I can only hope that the examples of Kenyatta and Prince Nasser of Bahrain will shed some light on this international haze.

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Tagged: Constitution, Human Rights, International Law, Rule of Law

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