{"id":27663,"date":"2026-02-27T15:00:33","date_gmt":"2026-02-27T14:00:33","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=27663"},"modified":"2026-03-02T20:11:54","modified_gmt":"2026-03-02T19:11:54","slug":"head-of-state-immunity","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/head-of-state-immunity\/","title":{"rendered":"Head of State Immunity"},"content":{"rendered":"

According to a widespread view among scholars, heads of state and heads of government are, and have long been, entitled\u00a0to an absolute personal immunity from foreign jurisdiction (here<\/a>, here<\/a> and here<\/a>).\u00a0From this perspective, the absolute personal immunity rule forms part of current customary law. Yet the United States\u2019 prosecution of the President of Venezuela,\u00a0Nicol\u00e1s Maduro, and other past\u00a0practice of the United States pose a serious challenge to this view.\u00a0Current practice of the United States\u00a0either suggests\u00a0that the widespread\u00a0view, in fact, does not reflect customary law or it means that the customary rule of personal immunity of heads of state or government might be eroding. As to the latter possibility, it is of note that,\u00a0over the past couple of years, not only the United States, but also France<\/a>, Argentina<\/a>, Venezuela<\/a>, and Turkey<\/a>\u00a0have initiated prosecutions against heads of state or heads of government.<\/p>\n

The United States\u2019 government makes two claims in what concerns the Maduro situation. First, it alleges that Maduro is responsible for drug-trafficking and other crimes provided for in the United States Code. This allegation has translated into a four-count indictment<\/a>\u00a0of \u201cnarco-terrorism conspiracy\u201d, \u201ccocaine importation conspiracy\u201d, \u201cpossession of machine guns and destructive devices\u201d, and \u201cconspiracy to possess machine guns and destructive devices\u201d.\u00a0Second, the US government alleges<\/a> that Maduro helped to \u201cmanage and ultimately led\u201d Venezuelan gangs and drug cartels, which the US government identifies as responsible for\u00a0an \u201carmed attack\u201d against the United States.\u00a0The attack\u00a0triggered the \u201cright of self-defence\u201d of the United States, the allegation continues, and\u00a0led to an \u201carmed conflict\u201d\u00a0between the United States and the abovementioned gangs and cartels. In turn, the US government therefore claims that\u00a0Maduro might\u00a0also be responsible\u00a0for, or complicit in, violations\u00a0of the laws of war.<\/p>\n

This blog post\u00a0analyses whether\u00a0heads of state\u00a0suspected of having committed violations of national criminal laws or the laws of war\u00a0are entitled, according to United States\u2019 practice<\/em>,\u00a0to personal immunity as a bar against their prosecution, arrest and punishment.\u00a0As such, it does not specifically engage with the question of whether, under current customary law, heads of state and heads of government are entitled to personal immunity from foreign jurisdiction (as to this question, see <\/em>here<\/a> and\u00a0here<\/a>). In particular, this blog post analyses practice of the United States in the 19th and 20th\u00a0centuries, and\u00a0compares such practice with the position adopted by the United States government in the 21st century,\u00a0demonstrating the marked difference between US practice in the 19th and 20th versus the 21st century.<\/p>\n

United States<\/strong>\u2019 Practice in the 19<\/strong>th<\/strong>\u00a0<\/strong>C<\/strong>entur<\/strong>y<\/strong><\/p>\n

The precedent most cited to support the widespread view that heads of state have long been entitled to absolute personal immunity from foreign jurisdiction is a judgment of the Supreme Court of the United States. The judgment in the Schooner Exchange<\/em> case (1812) is often considered<\/a> as \u201cthe leading authority on the immunity of foreign sovereigns from suit in national courts\u201d.\u00a0In the opinion of several scholars, the Schooner Exchange<\/em> sets out a rule according to which heads of state are entitled to \u201cabsolute\u201d immunity from foreign jurisdiction (see e.g.,<\/em>\u00a0here<\/a> and here<\/a>)<\/p>\n

As explained below, this opinion is misguided. The Schooner Exchange<\/em>\u00a0judgment<\/a>\u00a0affirmed that the recognition of immunity of a foreign sovereign and his or her property (in this case, a public armed ship) is premised upon an important pre-condition, namely, that the sovereign or the property demeane themselves peacefully and friendly. The Supreme Court stresses this multiple times throughout the judgment;\u00a0the Court concludes in the judgment\u2019s last paragraph:<\/p>\n

\u201cthe\u00a0Exchange<\/em>, being a public armed ship, in the service of a foreign sovereign, with whom the government of the United States is at <\/em>peace<\/em>, and having entered an American port \u2026 and demeaning herself in a friendly manner<\/em>, she should be exempt from the jurisdiction of the country (emphasis added).\u201d<\/p>\n

Two inferences flow naturally from these words, and from the judgment as a whole. First, they\u00a0imply<\/a> that\u00a0foreign sovereigns\u00a0or ships who launch an armed attack against,\u00a0or are\u00a0at<\/em> war<\/em> with,\u00a0the United States, are not exempt from the jurisdiction of the country.\u00a0Second,\u00a0foreign sovereigns who,\u00a0demeaning themselves in an unfriendly manner<\/em>, enter the United States to\u00a0commit crimes\u00a0against\u00a0it,\u00a0are not exempt from the jurisdiction of the country. As the Supreme Court itself said a decade later in Santissima<\/em>\u00a0<\/em>Trinidad<\/em><\/a>:<\/p>\n

\u201cTo be sure, [if] a foreign sovereign \u2026 comes personally within our limits, although he generally enjoy[s] a personal immunity, he may become liable to judicial process \u2026 It may therefore be justly laid down as a general proposition<\/em> that all persons<\/em> \u2026 within the territorial jurisdiction of a sovereign are amenable to the jurisdiction of \u2026 his courts, and that the exceptions to this rule<\/em> are such only as by common usage and public policy have been allowed in order to preserve the peace and harmony of nations …\u00a0\u00a0It would indeed be strange<\/em> if a license implied by law from the general practice of nations for the purposes of peace should be construed as a license to do wrong<\/em> to the nation itself\u201d (emphasis added).<\/p>\n

For the Supreme Court, thus, the \u201cgeneral proposition\u201d or \u201crule\u201d is that a foreign sovereign who enters the United States \u201cmay become liable to judicial process\u201d, and exceptions to this general proposition or rule (i.e., immunity) do not encompass situations where the sovereign enters the country to do \u201cwrong\u201d to the United States. Such \u201cwrong\u201d surely encompasses\u00a0the\u00a0two types of situations \u2013 launching an armed attack or demeaning oneself in an unfriendly manner \u2013 mentioned above.<\/p>\n

The analogy between the words of the Supreme Court in these two cases and the situation of Maduro is not perfect. In fact,\u00a0there is no allegation of Maduro\u00a0entering the United States to attack it or commit crimes. Instead, the allegation against Maduro\u00a0consists of him leading, committing or participating in crimes\u00a0provided for in the United States Code,\u00a0or violations of the laws of war,\u00a0from outside the United States.<\/p>\n

Yet, leading, committing or participating in such crimes from abroad does not preclude\u00a0United States\u2019 jurisdiction under its\u00a0national criminal laws or the laws of war. As such, the consequences of the rationales\u00a0used by the Supreme Court in the Schooner Exchange<\/em> and Santissima Trinidad<\/em> should not vary depending on whether Maduro entered the United States himself to attack it or commit such crimes or, instead, used other persons to do so on his behalf. Heads of state do not necessarily, nor even normally, enter foreign states themselves to attack them or commit such crimes. Stated differently, the Schooner Exchange<\/em> and Santissima Trinidad<\/em> are precedents that the courts of the United States should consider if they have to pronounce on the issue of Maduro\u2019s immunity.<\/p>\n

United States<\/strong>\u2019 Practice<\/strong>\u00a0<\/strong>in the 20<\/strong>th<\/strong> Century<\/strong><\/p>\n

In the aftermath of the First World War, the majority of the delegations to the Paris Peace Conference rejected<\/a> the notion of head of state immunity regarding violations of the laws of war. The members of the delegation of the United States, however,\u00a0dissented<\/a>. For them, a tribunal consisting of a \u201cforeign country or group of countries\u201d could not punish the head of state of another country. In their opinion, while\u00a0heads of state could not be sanctioned by foreign \u201cjudges\u201d for \u201cviolations of positive law\u201d, they could be punished by foreign \u201cstatesmen\u201d for \u201cpolitical offences\u201d.<\/p>\n

Their\u00a0interesting opinion\u00a0was inconsistent with the practice they invoked to support it. Indeed, the\u00a0only<\/em>\u00a0practice\u00a0they invoked was\u00a0precisely the Schooner Exchange<\/em>. However, the US delegation blatantly<\/a> ignored the following three facts mentioned above: (1) the Schooner Exchange<\/em> immunity considerations only concerned peaceful situations and sovereigns who conducted themselves in a friendly manner; (2) other statements in the same case implied that heads of state were not entitled to absolute immunity from foreign judicial<\/em> jurisdiction; (3) the Supreme Court in Santissima Trinidad<\/em> clearly rejected that heads of state were entitled to absolute immunity from foreign judicial<\/em> jurisdiction. Apparently, the American representatives also did not realize\u00a0that, from the \u201cdawn\u201d of the \u201cconstitutional history\u201d of their own country, not only the Supreme Court, but also other courts and the government of the United States itself had consistently<\/a>\u00a0rejected the notion of head of state absolute immunity from foreign\u00a0judicial<\/em> jurisdiction.<\/p>\n

In the end, the American President rejected\u00a0the view of his own delegation. Woodrow Wilson\u00a0himself<\/a> drafted a provision in the Treaty of Versailles providing for the trial of the Kaiser, i.e., the head of state of Germany during the First World War. Article 227<\/a>\u00a0of the treaty stated that a \u201cspecial tribunal\u201d would \u201ctry the accused\u201d, assure him the \u201cright of defence\u201d, and fix adequate \u201cpunishment\u201d. This \u201ctribunal\u201d would be composed of\u00a0\u201cjudges\u201d.\u00a0\u00a0Such\u00a0\u201cjudges\u201d\u00a0would sit not in a tribunal of a\u00a0\u201cforeign country\u201d, but in a tribunal of a foreign \u201cgroup of countries\u201d.\u00a0Nonetheless, according to the dominant idea<\/a>\u00a0at the time, the Kaiser could be prosecuted in a tribunal\u00a0consisting of a group of countries because any<\/em>\u00a0of the countries\u00a0could have prosecuted him in their own courts. The prosecution\u00a0of heads of state for\u00a0violations of the laws of war\u00a0was a matter normally \u201cto be handled by national military courts\u201d. It was this idea, rather than the notion of absolute immunity, which ultimately prevailed.<\/p>\n

In other words, the prosecution of the Kaiser\u00a0devised in Article 227 of the Treaty of Versailles\u00a0was premised on the idea that absolute head of state immunity from foreign judicial<\/em>\u00a0jurisdiction did not exist.\u00a0Beyond Article 227, the Treaty of Versailles as a whole \u201chas no trace<\/a>\u201d of an immunity for heads of state. The United States was also a party\u00a0to this treaty.<\/p>\n

During the Second World War, the United States endorsed national indictments<\/a> by Poland, Belgium and Czechoslovakia against the sitting head of state of Germany, Hitler. These indictments included an impressive list of charges for violations of national criminal laws and the laws of war. Therefore, for these three countries, Hitler was not entitled to personal immunity regarding violations of national criminal laws and the laws of war.<\/p>\n

In March 1945, the United Nations War Crimes Commission (UNWCC),\u00a0constituted by sixteen states including the United States,\u00a0endorsed<\/a> at least seven indictments against Hitler. All indictments\u00a0contained\u00a0charges\u00a0for\u00a0violations of national criminal laws and\/or\u00a0the laws of war\u00a0(here<\/a> and here<\/a>). The UNWCC\u2019s\u00a0listing<\/a>\u00a0of Hitler as a\u00a0suspected war criminal \u201csubject to arrest\u201d by those sixteen states again means that, in the opinion of these states, Hitler was not entitled to personal immunity with regard to violations of national criminal laws and the laws of war.<\/p>\n

The United States was also one of the main driving forces behind the creation of the Nuremberg Charter and the Nuremberg Tribunal. Indeed, the idea that the major war criminals, including Hitler, should be punished not through a political decision by statesmen\u00a0but in a court of law by judges,\u00a0began in Washington<\/a>.\u00a0In the most important court of law\u00a0resulting from this idea, the judges\u00a0delivered one of the most important judgment<\/a>s in the history of international law. In it, the judges,\u00a0including an American,\u00a0said:<\/p>\n

\u201cThe 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 \u2026 He who violates the laws of war cannot obtain immunity.\u201d<\/p>\n

For the Nuremberg judges, the perpetrators of such \u201cacts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings\u201d. The expression \u201cappropriate proceedings\u201d\u00a0manifestly<\/a> encompassed national proceedings against a sitting or former head of state for acts such as crimes against peace, war crimes and crimes against humanity.<\/p>\n

The prohibitions of crimes against peace, war crimes and crimes against humanity set out in the Nuremberg Charter are principles of international law. The Nuremberg tribunal\u2019s statements that immunity is not an\u00a0obstacle to prosecution for violations of the laws of war or\u00a0acts considered criminal by international law\u00a0are also principles of international law. The United Nations unanimously endorsed these\u00a0principles immediately after the Nuremberg\u00a0judgment. In December 1946, the General Assembly affirmed<\/a>\u00a0\u201cthe principles of international law recognized by the\u00a0Charter of the N\u00fcrnberg Tribunal\u00a0and the judgment of the Tribunal\u201d.\u00a0The United States was also one<\/a> of the main driving forces behind this affirmation and was part of the unanimous vote.<\/p>\n

In summary, at the time of the Second World War, United States\u2019 practice\u00a0supports\u00a0the notion that heads of state responsible for (1) crimes against peace, war crimes and crimes against humanity,\u00a0(2) violations of the laws of war,\u00a0and (3) violations of national criminal laws\u00a0were not entitled to immunity from foreign jurisdiction.\u00a0That Maduro might be responsible for violations of national criminal laws and\/or the laws of war are precisely two of the allegations of the American administration mentioned in the beginning of this blog post.<\/p>\n

United States<\/strong>\u2019 Practice<\/strong> in the <\/strong>21<\/strong>st<\/strong>\u00a0<\/strong>C<\/strong>entury <\/strong><\/p>\n

In the beginning of the 21st century, in the Arrest Warrant<\/em><\/a>\u00a0<\/em>case,\u00a0the International Court of Justice claimed to have \u201ccarefully\u201d examined past practice, and said it was \u201cunable to deduce from this practice \u2026 any form of exception to the rule according [head of state] immunity from [foreign] criminal jurisdiction\u201d.<\/p>\n

Thus, it conveyed the notion that heads of state are, and have long been, entitled to absolute immunity from foreign jurisdiction. Over the last two decades most scholars, courts and states<\/a> embraced the \u201cfull immunity\u201d position set out in\u00a0Arrest Warrant<\/em>. This\u00a0includes the United States<\/a>.<\/p>\n

The novel\u00a0position\u00a0of the United States adopted thereby stands in stark contrast\u00a0to the rather consistent past practice\u00a0of the US government and courts discussed above. Whether\u00a0the current American administration will maintain this new\u00a0position in the proceedings against Maduro, and\u00a0which position American courts\u00a0will ultimately endorse,\u00a0remains anyone\u2019s guess.\u00a0But one thing is certain: Whatever the position may be, it will have an impact on how\u00a0the international community views the issue of head of state immunity.<\/p>\n","protected":false},"excerpt":{"rendered":"

According to a widespread view among scholars, heads of state and heads of government are, and have long been, entitled\u00a0to an absolute personal immunity from foreign jurisdiction (here, here and here).\u00a0From this perspective, the absolute personal immunity rule forms part of current customary law. Yet the United States\u2019 prosecution of the President of Venezuela,\u00a0Nicol\u00e1s Maduro, […]<\/p>\n","protected":false},"author":35,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[5165,7131,7880],"authors":[7913],"article-categories":[6000],"doi":[],"class_list":["post-27663","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-immunity","tag-usa","tag-venezuela","authors-miguel-manero-de-lemos","article-categories-article"],"acf":{"subline":"United States v. Maduro"},"meta_box":{"doi":"10.17176\/20260228-144926-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/27663","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/35"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=27663"}],"version-history":[{"count":3,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/27663\/revisions"}],"predecessor-version":[{"id":27682,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/27663\/revisions\/27682"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=27663"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=27663"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=27663"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=27663"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=27663"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=27663"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}