Heads of State Travelling the World Carrying a Heavy Baggage - Heads of State, Immunity and International Crimes - Can Immunity Be Lifted?

Abstract: The purpose of this thesis is to investigate whether a new rule of customary international law has evolved that allows for an exception to the Head of State immunity regarding the perpetration of international crimes. In the legal literature and in codification attempts the view has been expressed that this new rule already exists. This thesis investigates whether this is a correct interpretation of the law as it stands today. The judgment in the Yerodia case did not receive a very warm reception from the world community. The reason for this is that the court established an absolute immunity for Ministers for Foreign Affairs in office. The court also gave its opinion on the immunity for former Ministers of Foreign Affairs. Here, the court asserted that the immunity would prevail for all acts taken by the Minister while in office that is of an official character. Some legal writers have been opposed to the judgment because they maintain that the court erred in its decision when it accorded immunity to former Ministers for Foreign Affairs accused of international crimes. According to these critics, the court should instead have acknowledged a new customary international law rule that allows for the exception to immunity for international crimes. In my opinion, it is essential to separate the practise of international tribunals from that of national courts. The reason for this is that in front of international tribunals, States have explicitly limited the immunity for its individuals by either ratifying a treaty establishing the statute of the tribunal or as a member State of the UN. The same waiver of immunity has not been made concerning citizens in front of foreign national courts. In my thesis, I find that no immunity can be enjoyed in front of international tribunals. The whole purpose of these international tribunals has been to prosecute the persons responsible of international crimes. The practise from national courts offers a more diverse picture. In my investigation of international case law, I examine eight national court decisions and only two of these decisions provide for the removing of the Head of State immunity regarding international crimes. Moreover, none of those two cases contain any evidence of a belief (opino juris) that an exception to the immunity for Heads of State committing international crimes have developed. As a conclusion, I find that the practise from national courts cannot be used as evidence of a rule in customary international law that allows for the exception to immunity for international crimes. Some voices in the international legal literature that claim the existence of a new customary law rule put forward arguments of a moral nature, meaning that they are based on a sense of justice rather than law. However good and valid these arguments are, the most important factor for a successful prosecution of a foreign Head of State is the foreign State's will to go forward with a prosecution. Without this political will, no prosecution can take place. In the thesis, I conclude that none of the arguments presented in the legal literature provide for a limitation of the Head of State immunity regarding international crimes. The ICJ proclaims in the Yerodia case that former Ministers for Foreign Affairs can be tried for all acts of a private capacity taken while in office. This argument opens up for the possibility to prosecute those responsible of international crimes, assuming that these crimes can be said to have been committed in a private capacity. Such a solution to the problem has been put forward by some national courts. There are however, considerable obstacles to regarding international crimes as crimes committed in a private capacity. For instance, certain crimes, such as crimes against the humanity and torture contain an official element and here it seems to be of no use to deny the official nature of the act. In the thesis, I find that it is impossible to regard international crimes as crimes committed in a private capacity. International crimes are the most horrendous crimes thinkable and therefore it is important to prosecute the persons responsible of these crimes. The evolvement of a new rule allowing for an exception to the Head of State immunity is not here yet but I hope that the future will bring a better balance between State sovereignty and the need to prosecute those responsible of international crimes.