The Scope and Nature of Immunity from Jurisdiction for Heads of State under International Law

The immunity of President Bashar Assad of Syria Under International Law.
By Gabriel Sawma, Esq.


The Assassination of Former Prime Minister, Rafiq al-Hariri.

In February 14, 2005 a powerful blast killed the former Prime Minister of Lebanon Rafik al-Hariri in Beirut. The US recalled its ambassador to Syria for consultations over the death, which raised fears of a return to the violence of Lebanon’s civil war years.

The United Nations Security Council called for the perpetrators to be brought to justice. The Secretary General Kofi Annan urged more progress on the withdrawal of Syrian forces from Lebanon. US Ambassador Margaret Scrobey delivered a note to the Syrian government expressing US outrage over the killing.

Mr. Annan said in a statement that he had written to Syrian President Bashar al-Assad, to urge him to comply with a UN resolution calling for the withdrawal of foreign troops from Lebanon.

The United States and France jointly initiated a demand by the Security Council to bring the killers to justice. UN Secretary General Kofi Annan announced the dispatch of an independent team to investigate the assassination. The mass demonstrations in Lebanon, featuring harsh attacks against Syria, which until then had been unprecedented, encouraged the West to place increased pressure on Damascus to fulfill the terms of Security Council Resolution 1559 and remove its forces from Lebanon. In April 26, 2005, the Syrian government announced the withdrawal of their forces in compliance with the Security Council Resolution.

A probe was established to investigate the killing of Rafiq al-Hariri, headed by a known German prosecutor, Detlev Mehlis. The investigation is still going on at the time of this article. The Question is, what will happen next. If Syria’s President is involved in this criminal activity, does he loose his immunity as Head of State?


Immunity Under International Law

Until the 20th century, there were no international courts which could exercise jurisdiction over heads of state, and national courts could not exercise jurisdiction over serving heads of state or former heads of state for public acts carried out while in office. This position under international law has since evolved.

It developed first under article 227 of the Treaty of Versailles (1919) whereby the former Kaiser, William II, was indicted for prosecution before special tribunal to be constituted by the victorious powers. Then came to the trials before the Nuremberg and Tokyo International Military Tribunals at the end of World War II.

Under the UN Charter Article 29, the Security Council has the power to establish subsidiary bodies to perform its functions. The Council could establish a Liaison Group with International Courts that would coordinate with the International Court of Justice (ICJ), international criminal tribunal, two of which were established: the International Criminal Tribunal for Yugoslavia (ICTY) and Rwanda (ICTR).

Due to significant financial and personnel requirements, none of the Security members supported the establishment of another UN tribunal similar to the ICTY and ICTR. Instead, the UN decided to create a special hybrid-court that will be administered jointly by the government involved and the United Nations.

Accordingly, the Security Council set up several criminal tribunals, these are:

· Special Court for Sierra Leone (SCSL) to look into the crimes committed against civilians with mass amputation and rape. The SCSL is a “hybrid” national and international court designed to bring the perpetrators of these crimes to justice.
· Special Tribunal for Cambodia (STC) to look into the crimes committed by the Khmer Rouge who killed an estimated 1 million people during the 1970s. Thirty years later, the UN and the Cambodian government agreed to establish a joint national and international court to hold those responsible accountable.
· Ad Hoc Court for East Timor to look into the crimes committed by the Indonesian military and pro-Indonesian militias who murdered thousands of Timorese during the territory’s struggle for independence, and hold responsible the perpetrators from the Indonesian government.

The primary difference between the Special Court and the ICTY and ICTR is the mandate under which they are created. The ICTY and ICTR were established by the Security Council under Chapter VII of the UN Charter, which gives the United Nations power to intervene in the affairs of sovereign state to restore international peace and security. These tribunals are under the jurisdiction of the UN and operate independently from and irrespective of the Yugoslav and Rwandan governments.

A treaty between the United Nations and the sovereign governments, usually under joint jurisdiction, created the Special Courts for Sierra Leone, Cambodia, and East Timor, and as such, the tribunals represent an entirely new model for bringing perpetrators or war crimes to justice. These Special Courts are staffed with both local and international judges and prosecutors. The Secretary-General appoints a Chief Prosecutor for each case, while the local governments, in consultation with the UN, appoint a Deputy. Although the Deputy will have some input on the indictments, the Chief Prosecutor will make the final decision.

If security allows, the Special Courts is usually located in the country where the crimes were committed; it is much easier for victims to follow the court’s proceedings. At the same time, diplomats will facilitate the diffusion of legal knowledge from international to local judicial officials, which will assist in rebuilding the country’s judicial system. The Security Council resolution in the case of Sierra Leon explicitly notes the “pressing need for international cooperation to assist in strengthening the judicial system of Sierra Leone.”

The drawback of Special Tribunal is that, because the Security Council directly establishes it, the court cannot assert primacy over the national courts of third states, unless the Council endows the court with the power to request the surrender of suspects in third states. It is important to keep in mind that, with the absence of a Chapter VII mandate will also prevent the court from extending its jurisdiction to prosecute war crimes perpetrated in neighboring country. A UN tribunal established with a Chapter VII mandate might be able to prosecute these crimes.


Prosecution of Heads of state, and high-ranking officials. The immunity issue

The immunity of head of state is one of the most controversial topics in international law. The purpose of the immunities is to offer a complete protection against national criminal jurisdiction. To create an exception to this rule would be to create a possibility of abuse and thereby defeat the purpose of the immunity. This principle has been held recently even with respect to international crimes. In the Pinochet case, the judges emphasized “head of state is till protected while in office by immunity ratione personae even in respect of serious international crimes.” That means a serving head of state or diplomat can still claim immunity if charged with [torture]. “The nature of charge is irrelevant; his immunity is personal and absolute.”

In March 2001, the French Cour de cassation held in the Qaddafi case that the crime charged, i.e. complicity in acts of terrorism, did not fall within the categories of international crimes providing for an exception to immunity from jurisdiction of Heads of State. A serving head of state is immune from prosecution in national courts, even in relation to serious acts of terrorism.

In the case of Fidel Castro, the Spanish Audienco Nacional reached the same conclusion. It stated that the Cuban President could not be tried even for international crimes, as long as he was serving in his capacity as head of state. He enjoys immunity under public international law. The Spanish Court ruled that it has no jurisdiction to try Castro.

In October 2001, the United States Court reached a similar conclusion in Tachiona v. Mugabe. It affirmed that the Torture Victim Protection Act did not override either traditional diplomatic immunities or the comparable immunity given to visiting heads of states. Diplomatic immunity prevents national prosecutors from initiating a lawsuit against foreign head of state or its diplomatic corps regardless of the charge.

Attempts were made by other governments to limit the scope of the immunity to heads of states and other high-ranking officials. In 1999, Belgium passed a law providing universal jurisdiction over international crimes committed by anyone, anywhere, even if the perpetrator was not present in Belgium and denying all immunities for such crimes. On April 11, 2000, a Belgium judge issued an international arrest warrant against Mr. Yerodia, who was at the time serving as the minister for foreign affairs for the Democratic Republic of Congo (DRC). The DRC initiated proceedings against Belgium in the International Court of Justice (ICJ), arguing that the universal jurisdiction in absentia asserted by Belgium exceeded international law and that Belgium’s non-recognition of the immunity of a serving minister of foreign affairs was a violation of international law.

The ICJ issued its ruling on Feb. 14, 2002 by 13 votes to 3 that Belgium had violated a legal obligation towards the Democratic Republic of Congo. The court firmly rejected the notion that, having regard to the developments in international law and in particular customary international, a serving foreign minister was entitled to claim immunity before a national court. It held that the immunity before national courts was not affected by the existence of treaties such as the Torture Convention. The court held “in that they failed to respect the immunity from criminal jurisdiction and the inviolability which the incumbent Minister for Foreign Affairs of the DRC enjoyed under international law. It held that the immunities ratione personae enjoyed by a Foreign Minister could not be set aside by a national court by charging them with war crimes or crimes against humanity.

The personal immunity of Heads of State from jurisdiction always covers official visits abroad, private visits are also protected, although to a more limited extent. In an exception to immunity given to high state officials from foreign jurisdiction, the International Court of Justice stated that the immunity seizes if the state they represent waives their immunity.


The Immunity of Head of State Under the Special Tribunals

With the establishment of UN Special Tribunals and a growing body of international human rights law, the international community has strongly asserted individual responsibility for violations of human rights. The status of sitting Head of State appears to be the last battleground on this issue; prime ministers, presidents, and kings are remaining individuals who are granted immunity for the gravest crimes by a system of international law, which refutes impunity for all other individuals. This situation is being reversed gradually.
Sierra Leone suffered through a gruesome, ten-year civil war. The Revolutionary United Front (RUF), led by Foday Snakoh, used amputations and mass rape to terrorize the population and gain control of the country’s lucrative diamond mines. Charles Taylor, then president of neighboring Liberia, backed the insurgency providing arms and training to the RUF in exchange for diamonds. In 1999 the UN eventually brokered the Lome Peace Accord between the warring parties.

In January 2002 the UN Security Council approved the Special Court for Sierra Leone (SCSL) to try those responsible for the crimes committed during the civil war. The purpose of the Special Court was to prosecute those with the “greatest responsibility” for crimes against humanity, the court may decide whether to indict individuals who continually instigate conflict and brutality in their region. On June 4, 2003, the Special Court for Sierra Leone (SCSL) issued an arrest warrant against Charles Taylor, the incumbent President of Liberia. When the warrant was issued, Mr. Taylor was traveling to Ghana for talks with Liberian rebel groups to end a four-year civil war that has destabilized West Africa. The indictment against Mr. Taylor had been issued on March 7, 2003, but was kept sealed until the Special Court Prosecutor saw in Mr. Taylor’s trip an opportunity to apprehend him. The warrant was served on the authorities of Ghana, and transmitted to Interpol. Ghanaian authorities did not apprehend him.

On May 31, 2004, the Appeals Chamber of the Special Court for Sierra Leone (SCSL) in Freetown ruled unanimously that Charles Taylor does not enjoy any immunity from prosecution by the Court though he was the serving Head of State of Liberia at the time criminal proceedings were initiated. This historic ruling by the Court is a significant contribution to the modern international law norm asserting that Heads of State and other high-ranking governmental officials are not absolved of criminal responsibility for serious international crimes.

Despite its hybrid nature, the SCSL is not considered a national court; it acts as an international court, even though it functions on the territory of Sierra Leone. In other words, it is based outside the legal system of Sierra Leone. The State of Sierra Leone transferred the jurisdiction to the SCSL on the basis of an agreement with the UN Security Council. Given the Arrest Warrant case, Sierra Leone courts would have been unable to prosecute Mr. Taylor.

As the SCSL performs its job in Sierra Leone, it is independent from the national judicial system; the prosecutor and judges enjoy diplomatic immunity from any undue influence by its host state on judicial decisions. The fact that Sierra Leone has appointed three judges is negligible as they can always be overruled by a majority opinion of international judges, or in cases of clear prejudice may be disqualified.

Chapter VII of the UN Charter, which governs ICTR and ICTY, does not back the agreement between the Security Council and Sierra Leone. Both ICTR and ICTY were established by Chapter VII Security Council resolutions, by which all members of the UN were bound by the decision to remove immunity for state officials. Although the SCSL did not have Chapter VII backing, nevertheless, it had the “will” of the international community behind it. The broad support from all sections of the international community for its creation-political and financial-, and that it was set up pursuant to (although not by) a Security Council resolution. It was this unexpressed fact, which gave the SCSL a sufficient degree of comfort to hold that it was an international court before which immunity of a Head of State did not apply. The majority opinion among legal scholars favored the view that there is no entitlement to immunity before international courts, and therefore nothing to be waived.

On June 29, 2001, the prosecutor of the International Criminal Tribunal for the former Yugoslavia, pursuant to her authority under article 18 of the Statute indicted Slobodan Milosevic while he was President of Yugoslavia.

The Statute of Rome, which established the ICC adopted in 1998 article 27, which provides that there was no entitlement to immunity for any person subject to the Jurisdiction of the ICC.


The Iraq Tribunal Trying Saddam Hussein and Other Top Baath Leaders

The capture of Saddam Hussein on December 13, 2003 prompted a worldwide debate about how best to try him and other top Baath Party Leaders. On August 11, 2005, the Iraqi Transitional National Assembly approved a war crimes tribunal in Iraq, which was originally established by the US-installed Iraqi government Council. The court is mandated to prosecute numerous high level members of the former Iraqi regime who are accused of crimes against humanity, war crimes and genocide, but the court has mainly focused on its most high-profile case: Saddam Hussein. Saddam went on trial on October 19, 2005, for a 1982 massacre that took place in Dujail, north of Baghdad.

Human Rights groups and legal experts agree that the Iraqi people must have the right to try their own persecutors, but question the competence and impartiality of Iraq’s judicial system. The Regime Crimes Liaison Office (RCLO), run by the US Department of Justice, is actively involved in the court’s investigations, the translation of materials and the training of Iraqi lawyers and judges. Critics believe that by backing a trial in Iraq, Washington hopes that its past support for Saddam Hussein will not be revealed. Opponents of the court had hoped for an internationally organized tribunal with significant domestic participation, similar to the Special Court for Sierra Leone (SCSL), to avoid the tribunal degenerating into a “political show trial.” An international tribunal would also allow Kuwait and Iran to take part in the trial (as they have requested) for crimes committed against these two countries.


Is the President of Syria Immune From Prosecution Under International Law?

Without commenting on the merits of the case, the assassination of the former Prime Minister al-Hariri of Lebanon by foreign elements from Syria constitutes a violation to international law. Should the President of Syria be implicated in such a terrorist attack, his immunity will be hanging in the air.

The assassination of former Lebanese Prime Minister Rafiq Al-Hariri in February 2005 led the UN Security Council to issue Resolution 1595 setting up an international commission of inquiry.

On October 31, 2005, the Security Council met at Ministerial Level and formally endorsed the Report of the United Nations Independent Investigation Commission that found evidence of Syrian involvement in the assassination of former Lebanese Prime Minister Rafiq al-Hariri. The Security Council issued Resolution 1636 under Chapter VII of the United Nations Charter. It called for Syria to “cooperate fully and unconditionally with the Commission and insisted it not interfere in Lebanese affairs.”

On December 17, 2005, the UN Security Council adopted Resolution 1644 in which it demanded that Syria respond “unambiguously and immediately” to the Commission investigating the terrorist attack that killed former Lebanese Prime Minister Rafiq Hariri and extended the probe initially until June 15, 2006, leaving open the possibility of further extension.

The Council also authorized the Commission, following the request of the Lebanese Government, to extend its technical assistance to that Government with regard to their investigations on the terrorist attacks perpetrated in Lebanon since October 1, 2004, and caused the murder of prominent journalists including Gibran Tueini, editor in chief of a leading Lebanese newspaper “An Nahar”. It asked the Secretary-General, in consultations with the Commission and the Lebanese Government, “to present recommendations to expand the Commission’s mandate to include investigations of those other attacks.”

The Security Council also acknowledged the Lebanese Government’s request that “those eventually charged with involvement in the terrorist attack be tried by an international tribunal, the Council asked the Secretary-General to help that Government identify the nature and scope of the international assistance needed in that regard, and to report to the Council in a timely manner.”

In a recent TV interview, the former Vice President of Syria, Abdul-Halim Khaddam, who defected to France, said that Assad had threatened Hariri during their last meeting. Syrian President denied the charge, but suggested in an interview that he would not allow UN investigators to interview him about the Hariri’s killing.

Under the current situation, and before the formation of the International Tribunal, the Prosecutor can issue an Arrest Warrant against the president of Syria, but national courts, based on the precedents mentioned earlier, will not agree to that.

However, as soon as the International Special Court is established, the Prosecutor can issue an International Arrest Warrant; upon the approval of the Court, the Interpol will be notified and the Head of State will be considered a fugitive. An arrest warrant is an order issued by the Prosecutor to authorize the arrest and detention of an individual.

Under the rules of the International Criminal Court, the Pre-Trial Chamber (PTC) will authorize such an arrest warrant, upon an application by the Prosecutor. (An indictment, mostly used in common law countries, is a formal charge against an individual ‘or formal accusation’ for having allegedly committed a serious criminal offense. The ICTY but not the ICC is using the indictment procedure.)

Once the Prosecutor has initiated an investigation, he then may at any time make an application for an arrest warrant Pre-Trial Chamber (PTC). The Prosecutor’s application for an arrest warrant shall contain the following information (Rome Statute, Art. 58):
· The person’s name and identifying information;
· A specific reference to the alleged crimes and a concise statement of the facts thereof;
· A summary of evidence and information establishing the reasonable grounds for a warrant; and
· The reason why the Prosecutor believes the arrest is needed.

Following receipt of the Prosecutor’s application, the PTC will evaluate the materials presented by the Prosecutor and issue an arrest warrant when the PTC feels that there are reasonable grounds to believe that the person has committed a crime under the jurisdiction of the ICC; and when the PTC finds it necessary that the person be arrested. Arrest warrant remains in effect until the Court decides otherwise.

The Chamber may decide to keep a decision “sealed”, this means that the decision will be confidential and only accessible to those persons or organs of the ICC (or outside actors), which the Court authorizes.

On the basis of this arrest warrant, the Court may request a State Party to make a provisional or a full arrest and surrender. The Registrar is responsible for transmitting a request for cooperation issued by the Chambers (e.g. a request for arrest) to a State Party or international organization. The Registrar will also be responsible for receiving all responses to the request from the requested State or international organization. However, a Chamber may allocate to the Prosecutor, instead of the Registrar, the responsibility to transmit a particular request for cooperation, or warrant of arrest, and to receive the responses to such requests.


What happens after an arrest warrant and a request for arrest has been issued?

The ICC does not have its own police force. When the Pre-Trial Chamber has issued an arrest warrant, the Court relies on the cooperation of States and international organizations to arrest and surrender the person. Moreover, the Court may, by itself or following a request by the Prosecutor, take certain measures that are necessary to ensure the safety and well being of any victims and witnesses, including measures related to the protection of information.

A State Party receiving a request for cooperation has to keep the request confidential. Any information about the request may only be disclosed if this is necessary for the execution of that request.

Once a person has been arrested and the Court has been informed about the arrest, the Court must hand over the arrest warrant to the arrested person. The arrested person must then be brought before a court in the State Custody, which must determine, based on its national laws, that the right person has been lawfully arrested.


Beyond A Reasonable Doubt

Judicial authorities should be aware of the fact that it may be very difficult to determine the personal responsibility of a Head of State. Indeed, it would be necessary to prove beyond reasonable doubt that he ordered or instigated the perpetration of the crimes charged with, or, despite having the effective power and authority to prevent or punish the persons responsible for the commission of those crimes, willfully failed to do so. So far no Syrian official has been punished in Syria.



©Copyright 2006 Gabriel Sawma Esq. all rights reserved.
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