Head of State Immunity

According to a widespread view among scholars, heads of state and heads of government are, and have long been, entitled to an absolute personal immunity from foreign jurisdiction (here, here and here). From this perspective, the absolute personal immunity rule forms part of current customary law. Yet the United States’ prosecution of the President of Venezuela, Nicolás Maduro, and other past practice of the United States pose a serious challenge to this view. Current practice of the United States either suggests that the widespread view, 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, over the past couple of years, not only the United States, but also France, Argentina, Venezuela, and Turkey have initiated prosecutions against heads of state or heads of government.

The United States’ 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 of “narco-terrorism conspiracy”, “cocaine importation conspiracy”, “possession of machine guns and destructive devices”, and “conspiracy to possess machine guns and destructive devices”. Second, the US government alleges that Maduro helped to “manage and ultimately led” Venezuelan gangs and drug cartels, which the US government identifies as responsible for an “armed attack” against the United States. The attack triggered the “right of self-defence” of the United States, the allegation continues, and led to an “armed conflict” between the United States and the abovementioned gangs and cartels. In turn, the US government therefore claims that Maduro might also be responsible for, or complicit in, violations of the laws of war.

This blog post analyses whether heads of state suspected of having committed violations of national criminal laws or the laws of war are entitled, according to United States’ practice, to personal immunity as a bar against their prosecution, arrest and punishment. As 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 here and here). In particular, this blog post analyses practice of the United States in the 19th and 20th centuries, and compares such practice with the position adopted by the United States government in the 21st century, demonstrating the marked difference between US practice in the 19th and 20th versus the 21st century.

United States’ Practice in the 19th Century

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 case (1812) is often considered as “the leading authority on the immunity of foreign sovereigns from suit in national courts”. In the opinion of several scholars, the Schooner Exchange sets out a rule according to which heads of state are entitled to “absolute” immunity from foreign jurisdiction (see e.g., here and here)

As explained below, this opinion is misguided. The Schooner Exchange judgment affirmed 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; the Court concludes in the judgment’s last paragraph:

“the Exchange, being a public armed ship, in the service of a foreign sovereign, with whom the government of the United States is at peace, and having entered an American port … and demeaning herself in a friendly manner, she should be exempt from the jurisdiction of the country (emphasis added).”

Two inferences flow naturally from these words, and from the judgment as a whole. First, they imply that foreign sovereigns or ships who launch an armed attack against, or are at war with, the United States, are not exempt from the jurisdiction of the country. Second, foreign sovereigns who, demeaning themselves in an unfriendly manner, enter the United States to commit crimes against it, are not exempt from the jurisdiction of the country. As the Supreme Court itself said a decade later in Santissima Trinidad:

“To be sure, [if] a foreign sovereign … comes personally within our limits, although he generally enjoy[s] a personal immunity, he may become liable to judicial process … It may therefore be justly laid down as a general proposition that all persons … within the territorial jurisdiction of a sovereign are amenable to the jurisdiction of … his courts, and that the exceptions to this rule are such only as by common usage and public policy have been allowed in order to preserve the peace and harmony of nations …  It would indeed be strange 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 to the nation itself” (emphasis added).

For the Supreme Court, thus, the “general proposition” or “rule” is that a foreign sovereign who enters the United States “may become liable to judicial process”, and exceptions to this general proposition or rule (i.e., immunity) do not encompass situations where the sovereign enters the country to do “wrong” to the United States. Such “wrong” surely encompasses the two types of situations – launching an armed attack or demeaning oneself in an unfriendly manner – mentioned above.

The analogy between the words of the Supreme Court in these two cases and the situation of Maduro is not perfect. In fact, there is no allegation of Maduro entering the United States to attack it or commit crimes. Instead, the allegation against Maduro consists of him leading, committing or participating in crimes provided for in the United States Code, or violations of the laws of war, from outside the United States.

Yet, leading, committing or participating in such crimes from abroad does not preclude United States’ jurisdiction under its national criminal laws or the laws of war. As such, the consequences of the rationales used by the Supreme Court in the Schooner Exchange and Santissima Trinidad 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 and Santissima Trinidad are precedents that the courts of the United States should consider if they have to pronounce on the issue of Maduro’s immunity.

United States’ Practice in the 20th Century

In the aftermath of the First World War, the majority of the delegations to the Paris Peace Conference rejected the notion of head of state immunity regarding violations of the laws of war. The members of the delegation of the United States, however, dissented. For them, a tribunal consisting of a “foreign country or group of countries” could not punish the head of state of another country. In their opinion, while heads of state could not be sanctioned by foreign “judges” for “violations of positive law”, they could be punished by foreign “statesmen” for “political offences”.

Their interesting opinion was inconsistent with the practice they invoked to support it. Indeed, the only practice they invoked was precisely the Schooner Exchange. However, the US delegation blatantly ignored the following three facts mentioned above: (1) the Schooner Exchange 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 jurisdiction; (3) the Supreme Court in Santissima Trinidad clearly rejected that heads of state were entitled to absolute immunity from foreign judicial jurisdiction. Apparently, the American representatives also did not realize that, from the “dawn” of the “constitutional history” of their own country, not only the Supreme Court, but also other courts and the government of the United States itself had consistently rejected the notion of head of state absolute immunity from foreign judicial jurisdiction.

In the end, the American President rejected the view of his own delegation. Woodrow Wilson himself 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 of the treaty stated that a “special tribunal” would “try the accused”, assure him the “right of defence”, and fix adequate “punishment”. This “tribunal” would be composed of “judges”.  Such “judges” would sit not in a tribunal of a “foreign country”, but in a tribunal of a foreign “group of countries”. Nonetheless, according to the dominant idea at the time, the Kaiser could be prosecuted in a tribunal consisting of a group of countries because any of the countries could have prosecuted him in their own courts. The prosecution of heads of state for violations of the laws of war was a matter normally “to be handled by national military courts”. It was this idea, rather than the notion of absolute immunity, which ultimately prevailed.

In other words, the prosecution of the Kaiser devised in Article 227 of the Treaty of Versailles was premised on the idea that absolute head of state immunity from foreign judicial jurisdiction did not exist. Beyond Article 227, the Treaty of Versailles as a whole “has no trace” of an immunity for heads of state. The United States was also a party to this treaty.

During the Second World War, the United States endorsed national indictments 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.

In March 1945, the United Nations War Crimes Commission (UNWCC), constituted by sixteen states including the United States, endorsed at least seven indictments against Hitler. All indictments contained charges for violations of national criminal laws and/or the laws of war (here and here). The UNWCC’s listing of Hitler as a suspected war criminal “subject to arrest” 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.

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 but in a court of law by judges, began in Washington. In the most important court of law resulting from this idea, the judges delivered one of the most important judgments in the history of international law. In it, the judges, including an American, said:

“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 … He who violates the laws of war cannot obtain immunity.”

For the Nuremberg judges, the perpetrators of such “acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings”. The expression “appropriate proceedings” manifestly encompassed national proceedings against a sitting or former head of state for acts such as crimes against peace, war crimes and crimes against humanity.

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’s statements that immunity is not an obstacle to prosecution for violations of the laws of war or acts considered criminal by international law are also principles of international law. The United Nations unanimously endorsed these principles immediately after the Nuremberg judgment. In December 1946, the General Assembly affirmed “the principles of international law recognized by the Charter of the Nürnberg Tribunal and the judgment of the Tribunal”. The United States was also one of the main driving forces behind this affirmation and was part of the unanimous vote.

In summary, at the time of the Second World War, United States’ practice supports the notion that heads of state responsible for (1) crimes against peace, war crimes and crimes against humanity, (2) violations of the laws of war, and (3) violations of national criminal laws were not entitled to immunity from foreign jurisdiction. That 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.

United States’ Practice in the 21st Century

In the beginning of the 21st century, in the Arrest Warrant case, the International Court of Justice claimed to have “carefully” examined past practice, and said it was “unable to deduce from this practice … any form of exception to the rule according [head of state] immunity from [foreign] criminal jurisdiction”.

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 embraced the “full immunity” position set out in Arrest Warrant. This includes the United States.

The novel position of the United States adopted thereby stands in stark contrast to the rather consistent past practice of the US government and courts discussed above. Whether the current American administration will maintain this new position in the proceedings against Maduro, and which position American courts will ultimately endorse, remains anyone’s guess. But one thing is certain: Whatever the position may be, it will have an impact on how the international community views the issue of head of state immunity.