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Shedding the blanket of immunity: a commentary on the global principle of ending impunity, realpolitik, and legal precedent

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Abstract

Over the course of the past two decades, there have been attempts by governments and the international political community to limit the scope of immunity granted to heads of states. Nevertheless in recent years we have witnessed former heads of state being brought to justice through ad hoc international criminal tribunals and the permanent International Criminal Court. Yet, head of state immunity remains one of the leading points of contention in international law. The issue is further compounded with the multiplicity of national systems that fall short of their duty to prosecute foreign heads of state if they have committed heinous crimes, those considered jus cogens which constitute peremptory norms. As such, there is a need to examine immunity from prosecution by another state separately from immunity from an international tribunal and/or court. This is especially the case given the problems of initiating ad hoc tribunals and the limited abilities of the ICC, highlighting the need to ensure cooperation of states’ willingness and ability to prosecute. In doing so, I draw from the infamous case of former President of Chile, Augusto Pinochet, and subsequent attempts by national systems to hold accountable foreign heads of state. I conclude by suggesting that the optimism for ending impunity is not only premature, but misguided given the realpolitik surrounding national progression for ending head of state immunity and ensuring their legal obligations to prosecute.

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Notes

  1. Rothe and Mullins [33–36] view controls as a complete blockage to an act or a criminal sanction that is ideally inevitable after the fact. In other words, a criminal action would not occur due to controls and if it did there would be ex-post facto legal repercussions. This could happen through the implementation of domestic laws, though highly unlikely or international institutions of control (e.g., International Criminal Court, or International Tribunal) or by other states through the use of their legal system.

  2. For a detailed analysis and report of the conditions and crimes committed by Pinochet and his regime see [11, 26, 21].

  3. Juzgado Central de Instrucción, attached to the trial jurisdiction of the Audiencia Nacional in Madrid.

  4. A campaign of political repressions involving assassination and intelligence operations.

  5. Online at http://www.icj-cij.org/docket/files/121/8126.pdf, last accessed 1 December 2008.

  6. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, p. 24.

  7. Also cited in [31].

  8. United Kingdom, District Court (Bow Street), Re General Shaul Mofaz, Judgment of 12 February 2004, reproduced in ICLQ, Vol. 53, 2004, pp. 771–773; Re Bo Xilai, Judgment of 8 November 2005, ILR Vol 128, pp. 713–715

  9. Application for a Warrant for the Arrest and Extradition of Robert Gabriel Mugabe, President of the Republic of Zimbabwe, on charges of torture under Section 134 of the Criminal Justice Act 1988, before Bow Street Magistrate’s Court, 7 and 14 January 2004, decision of Judge Timothy Workman 14 January 2004.

  10. Spain, Audiencia Nactional, Auto del Juzgado Central de Instruccion No. 4, 6 February 2008, pp. 151–157.

  11. A vast amount of literature has shown that victims of crimes committed by heads of state do desire, while not uniformly-but generally speaking, accountability and retribution [24] As such, justice conceptualized in this manner, provides one of many important and necessary components of restorative justice in general.

  12. Having said this, one must be cautioned in overt optimism of the development of international criminal justice or the growing ideology to end impunity as it undoubtedly is heavily entrenched in realpolitik—thus, dependent upon who is being accused of crimes and for whom potential prosecutions are discussed.

  13. Other exceptions include referral by the Security Council as well as if crimes were committed by a State Party Member on the territory of a non-State Party Member.

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Acknowledgements

I would like to thank the reviewers for their valuable insights and suggestions. I also would like to note that parts of this research are drawn from previous work of my own and Michael Bohlander (2010).

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  1. Old Dominion University, Norfolk, VA, USA

    Dawn L. Rothe

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Rothe, D.L. Shedding the blanket of immunity: a commentary on the global principle of ending impunity, realpolitik, and legal precedent. Crime Law Soc Change 53, 397–412 (2010). https://doi.org/10.1007/s10611-009-9229-6

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