Political Immunity

The rules that protected world leaders from prosecution are being rewritten

“THERE is no longer any doubt as to whether the current [Bush] administration has committed war crimes,” Antonio Taguba, a retired American general who conducted the first investigation into prisoner abuse at Abu Ghraib, declares in a new report on the maltreatment of detainees: “The only question that remains is…whether those who ordered the use of torture will be held to account.”

APCharles Taylor: a high-flying tyrant comes down to earth

As George Bush’s presidency draws to a close, many others in his administration, including Mr Bush himself, may be asking the same. Like all heads of state and government, along with many of their senior officials, the American president enjoys wide immunity from both criminal prosecution and civil lawsuits, at home and abroad, while he remains in office. But once he goes, so does much of his protection. And though nobody expects Mr Bush to face legal problems at home, it is just possible that in some other country, a prosecutor (or a private citizen initiating a civil suit) will try to hold him to account for America’s record in Iraq and elsewhere.

Across the world, leaders are fretting about the judicial moves that might be in store for them, especially after they leave office. Italy’s newly re-elected prime minister, Silvio Berlusconi, is trying to rush an immunity bill through parliament to protect himself against any prosecution for financial misdeeds. Jacques Chirac, having managed to stave off prosecution while president, has now been charged in relation to a party-funding scandal during his term as mayor of Paris. And one reason why Zimbabwe’s President Robert Mugabe is clinging to power could be his fear of being hauled before the International Criminal Court (ICC) in The Hague.

Traditionally, government leaders have enjoyed two types of legal protection when abroad: functional immunity, shielding them for life from prosecution in the domestic courts of other countries for acts carried out as part of their official duties; and personal immunity, protecting them from prosecution in foreign courts for all acts while in office—“irrespective of their gravity”, as the International Court of Justice (ICJ) ruled in 2002—but only for as long as they stay in power.

But a growing school of thought is challenging the idea that important folk should be deemed “more equal than others” before the law. The argument that some crimes merit no immunity is almost a century old. Provision was made in the 1919 Versailles Treaty for the defeated German emperor to be tried for “a supreme offence against international morality”. In 1945 the Nuremberg tribunals likewise refused to absolve Nazi leaders of responsibility for war crimes and other atrocities.

But it was not until the past decade that leaders who once saw themselves as untouchable really began to worry. The charters of the ICC and the various international ad hoc tribunals set up to try genocide, war crimes and crimes against humanity all explicitly rule out immunity for anyone. The emerging idea that high office can never provide an absolute defence for such crimes was reinforced by the House of Lords’ ruling in 1999 that Augusto Pinochet, Chile’s ex-dictator, could be prosecuted for torture. Some crimes were so heinous, the law lords said, that they could not be considered part of a head of state’s official functions—though this is still disputed.

A few months later, Slobodan Milosevic, the Serbian despot, became the first serving head of state to be indicted for war crimes. Charles Taylor was the next. Indicted in 2003 while still president of Liberia, he is now on trial in The Hague. Several former heads of state have also found themselves in the dock on war-crimes charges. They include Iraq’s Saddam Hussein, executed in 2006; Chad’s Hissène Habré, facing trial before a special court in Senegal; and Khieu Samphan, former Khmer Rouge president, now awaiting trial by a UN-backed court in Cambodia.

A third serving head of state may soon be indicted. On July 14th the ICC’s chief prosecutor, Luis Moreno-Ocampo, is due to announce plans to charge further Sudanese government officials over the continuing atrocities in Darfur. It is just possible that President Omar al-Bashir will be among them. He has refused to hand over Ahmad Harun, his minister for humanitarian affairs, indicted by the court a year ago.

But the ICC, set up under the 1998 Rome Statute, does not have unlimited jurisdiction. It can only prosecute international crimes involving at least one country that has signed up to the court. Although 106 countries have joined that list, America has not; nor has Zimbabwe. This means that Mr Mugabe could not be prosecuted by the ICC unless there was a referral to the court by the Security Council, as happened with Sudan, which is not a party either. It is not clear that recent events in Zimbabwe, however awful, amount to a “crime against humanity”, defined by the ICC’s statute as a “widespread or systematic attack” on civilians. But if the court did take up the case, Mr Mugabe would be equally vulnerable, in or out of office, given the lack of immunity for such crimes.

Theory and practice

There is no technical reason why the ICC should not try to go after Mr Bush, in the unlikely event that it found America was guilty of atrocities in Afghanistan (which is a party to the court, while Iraq is not.)

However, there is another way that the leaders of countries that have stayed out of the ICC could be prosecuted, despite their head-of-state immunity. That is by means of the principle known as universal jurisdiction. This allows states to prosecute international crimes such as genocide, torture and crimes against humanity in their own domestic courts, even when they have no link with the perpetrator, victims or site of the crime.

The scope of universal jurisdiction is disputed. Some say that the principle falls under treaty, not customary, law and is hence restricted in application to states that are party to the relevant treaty; so Britain could not bring action for torture under universal jurisdiction against Mr Mugabe, because Zimbabwe is not a party to the UN Convention Against Torture. Others say so many states have signed accords like the Geneva Conventions and the torture pact that they now amount to customary law.

The idea of “universal jurisdiction” is certainly gathering steam. It is already in use in at least eight European countries, with Spain, Belgium and Britain to the fore. Although the 2002 ICJ ruling on political immunity means that serving heads of state and senior government officials cannot be hauled before the domestic courts of other countries, this can happen after they leave office. Universal jurisdiction was invoked in Britain’s Pinochet case. Mr Habré would probably not be on trial in Senegal if Belgium had not invoked the “universal” principle against him.

Human-rights groups in France and Germany have sought to bring proceedings under universal jurisdiction against Donald Rumsfeld, America’s ex-defence secretary, citing atrocities in Iraq. Spanish prosecutors have invoked the principle to try pursuing several former Latin American dictators for crimes against humanity, though without success.

All this activity has encouraged countries to pursue miscreant ex-leaders in their own courts, where international immunity laws do not apply. Each country is free to determine what immunity, if any, it grants to its heads of state, government ministers and legislators. Its scope varies widely, as does the ease with which it can be lifted. But the past decade has seen a flurry of domestic prosecutions against past leaders, whether for human-rights abuses or financial crimes. In Uruguay, Suriname, Thailand, Peru and Bangladesh, ex-heads of state or government are either in the dock or awaiting trial; meanwhile Israel’s prime minister is under investigation (for fraud). The once-cosy blanket of immunity is starting to look rather threadbare.

The Economist

--------------------------------------

What's to be disputed about holding people responsible for their crimes? Holding a position of power doesn't justify or excuse criminal acts, therefore it should not keep anyone from facing the consequences of said acts. I definitely agree that heads of state should not have total immunity. Actually, I think they shouldn't be granted any immunity at all. Each person should be responsible for their actions, regardless of their current (or former) station in life. Actually, I didn't know that automatic immunity for heads of state existed. Universal jurisdiction sounds like a very good way to hold people accountable. It's something all countries should implement.