By Tseten Thompson
When someone kills a man, he is put in prison. When someone kills twenty people, he is declared mentally insane. But when someone kills 200,000 people, he is invited to Geneva for peace negotiation- Sarajevo joke, circa 1994
The commencement of proceedings against Jiang Zemin in 2003 for an indictment of crime against humanity was a potentially significant moment in the sense that it was presented to the Spain National court amidst intense media attention, and this case continues to provoke intense debate. Most of the people would have questioned why it was filed in Spain in particular. It was partly because the complaint is being filed under the Code of Crimes against International Law (CCIL) enacted by Spain in compliance with the Rome Statue creating the International Criminal Court in 2002, which Spain ratified. The CCIL provides for “universal jurisdiction” for war crimes, crimes of genocide and crimes against humanity. It enables the Spanish prosecutor to investigate and prosecute crimes irrespective of the location of the defendant or plaintiff, the place where the crime was carried out, or the nationality of the persons involved.
However, the case was quashed by the Spanish national court, Pursuant to s 268 121 (1) of the Criminal Code. For the purpose of s 268, it was held that any proceedings concerning genocide, crimes against humanity and crimes against the administration of justice of the ICC ‘must not be commenced without the Attorney’s written consent.’ In this case Attorney Judge Santiago Pedraz refused to grant consent because he said the Spanish national court could no longer handle the case after a new law restricted its powers to investigate human rights cases abroad.
In the past, Spanish courts have issued indictments against a number of former South American heads of state for genocide, torture and related crimes, although so far only a relatively junior official has been convicted of crimes against humanity. Thus, it has raised two important issues. The first was whether Judge Santiago should have broad discretion to determine whether cases concerning international crimes can proceed. Secondly, it sets out the epistemological challenges the doctrine of head-of-state immunities and, of official immunities in general. Therefore, this article will focus on the legal literature and jurisprudence on the subject of official immunities.
In Pre World War II, the redress of Human Rights violation was left to Individual states and their domestic legal regimes. In fact, International law simply did not offer any alternative. As Peter Malanczuk describes, ‘the above era as a period where relationship between state and their own national was considered as (purely) an internal matter’. Yet many leaders knew from their pre World War II experiences that it would be completely illogical if it were left in the hands of few individual states. Such states, in the words of Lord Brownie- Wilkinson in Pinochet’s case, “were never prepared to adjudicate over the shortcomings of their own regime.”[i]
Thus, the Charter of Nuremberg of 1946 arose, to claim in the name of ‘upholding international law’ and international military adjudicating role in the trials of individual perpetrators of the atrocities of World War II. Article 6 (c) of the Nuremberg Charter, which defines crimes against humanity as “as murder, extermination, enslavement, deportation, and other inhuman acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of domestic law of the country where perpetrated”[ii]. According to Nuremberg’s Chief Prosecutor Robert Jackson, “it is only by punishing individuals who commit such crimes can the provisions of international law be enforced”[iii]. Since then, questions about redressing human rights violations at the international level started to emerge. Further more, over the last decades several leader and former leaders have been charged and in some cases, prosecuted and convicted by international courts for international crimes.
The Culture of Immunity
It is almost certain that in this immunity battle, there are many political challenges than legal ones in the process of taking custody of incumbent’s heads of state[iv]. The prospects of prosecuting heads of state for grave human rights abuse remain severely stifled by doctrinal rules of international law immunities. In relations to the head of states, international law recognizes two types of immunities- the personal (immunity by reason of the person) and functional immunity (immunity by reason of the subject). Therefore, the first category of immunity comes with the duty of personifying or representing the state on the international platform but the second one is a general immunity accruing to all state officials irrespective of ranks.
In the case of Jiang Zemin, it is very evident that the Spanish court would have found, under both domestic legislation and international law, that he was immune from its jurisdiction for the duration of his term in office. As such, the question of whether immunities under Spain law extend to individuals accused of committing international crimes “is a matter that has yet to be fully tested in Spanish court.” It is important to note that the doctrine of immunity for heads of state is not codified in any international treaty; it is solely a rule of customary international law. The Vienna Convention only applies to ‘diplomatic agents’ which does not include heads of state. Although states are free to extend the provision of the Vienna Convention to heads of state but the convention itself is not a source of law for head of state immunity. Therefore, if the Spanish court wanted to consider the scope of immunity for heads of state in international law, it would need to look beyond the Vienna convention to customary international law. For example, the decision by the ICJ in the Yerodia Arrest Warrant case held that serving heads of state, heads of government and foreign ministries enjoy a broad personal immunity from the jurisdiction of foreign domestic courts, including immunity from prosecution for international crimes[v] .
Following this judgment a number of national courts have dismissed cases alleging the commission of international crimes by incumbent heads of state and heads of government on the ground that immunity ratione persone bars proceedings. Problems can arise, however, where there is uncertainty as to the existence of the state concerned or in a situation where a leader has seized power and removed from office a previous head of state who may still lay claim to that title[vi].
On the other hand Immunity ratione materiae attaches to all officials acts attributable to the state and it is the state that bears responsibility for them rather than the individual who performed the acts in his or her official capacity[vii]. The main effect of such immunity is to prevent litigants from seeking to circumvent the rules on state immunity by taking action against the individual carrying out the business of the state. In other words, this type of immunity is based on the nature of conduct rather than the status of the individual who carried out the act. Thus, it raises the question whether is there any exception to functional immunity of officials with regards to international crimes?
Is there an exception in respect of international crimes to head of state?
The judgment of the UK House of Lords in Pinochet was hailed by many as a new dawn in the struggle by victims, non-governmental organizations, and others to bring former leaders to account for international crimes committed while in office, and was seen as signaling an end to the impunity they formerly enjoyed[vii]. While the purpose of head of state immunity is to safeguard stable international relations. This raises the question: whether the emergence of coherent and generally accepted exceptions can be reconciled with the competing imperative to ensure accountability for genocide, and crime against humanity?
The answer to that question can be found in the balance struck between head of state immunity and its exemptions otherwise there is a political reluctance on the part of states to prosecute former officials. Although Spain has continued to lead the way by issuing arrest warrants against several former heads of state, including two former presidents of Guatemala, Rios Montt and Oscar Mejia Victores, for genocide, torture and other related crimes[ix], unfortunately, only a relatively junior official has been convicted of crimes against humanity.
However, the Spanish courts rejected the claim on the basis that there was evidence of state practice to support a customary exemption to head of state immunity. The position taken by the Spanish courts has been ‘widely criticized’ and subject to varied interpretation. For example, Antonio Cassese states that the Court did not intend to deny the existence of an exemption in customary law to immunity ratione materiae for state officials who are accused of international crimes[x].
Applying the ICJ’s reasoning to the case of Jiang Zemin, even after Zemin left office (an immunity ratione persone no longer applied) it would not be possible to prosecute him for international crime committed during his tenure as head of state, unless it could be proven that those crimes were committed in his private capacity. This does not mean, however, that a Spanish court should not have had the opportunity to exploring legal issues such as the ambit of immunity laws under both Spain and International law. The Spanish court appears to have overlooked the customary exemption to immunity ratione materiae for international crimes, and further confused the scope of immunity ratione materiae[xi]. Had a Spanish court been able to consider the Tibetan case; it might have been able to contribute to the clarification of some of these issues.
A Way Forward
Following the Pinochet case, it was hoped by many that the last combat ground for the struggle against impunity for gross human rights violations and crimes of international law inclusive of genocide, torture, war crimes and crime against humanity would fully work out in subsequent cases so that precise rules on the exception would emerge. In practice, this has not happened and the picture has been patchy, often confused and obscured by other jurisdictional factors that have barred or deterred prosecution in individual cases[xii]. The fallacy of Jiang Zemin’s case highlights some of the inadequacies in Spain’s efforts to prosecute him. Thus, the Spanish court must change its legislative framework on international crimes in order to balance its diplomatic and political considerations along with its obligation to prosecute and punish individuals accused of genocide and crime against humanity. As for Jiang Zemin, although the attorney general quashed the indictment, this should not end Spain’s involvement in the matter.
I believe that Jiang Zemin’s arrest and surrender to ICC remains a challenge, yet Spain must refer it to the ICC prosecutor otherwise the upholding of the notion of jurisdictional immunity is nothing more than an empty hope.
 Lord Brownie- Wilkinson Opinion of the Lords of Appeal for Judgment in the cause Regina v. Bartle and the Commissioner of Police for the Metropolis and ors ( Appellants) Ex Parte Pinochet of 24 March 1999 pg 6.
[ii] See Maurizio Ragazzi “ The Concept of International Obligations Erga Omnes”, Oxford monograph of International, ( 1997) pg 97 Oxford University Press
[iii] Noting that the attempt to try the German Emperor after WWI aborted because the Emperor took refuge in Netherlands and was never handed over for trail
[iv] Thor Shipping A/S v The Al Duhail ( 2008) 173 FER 524 ( ‘ Thor Shipping’)
[v Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment, ICJ Reports 2002, p.3; 128 ILR 1. The ICJ made it clear that such immunity subsist even where it is alleged that an international crime has been committed ( Djibouti v France)
[vi] See Lafontant v Aristide 844 F Supp.128,132-3 ( EDNY 1994);103 ILR 581
[vii] Dapo Akande and Sangeeta Shah, ‘ Immunities of State Official, International Crimes and Foreign Domestic Courts’ ( 2010) 21 European Journal of International Law 815, 825-6
[viii] Rv Bow Street Magistrates’ Court ex parte Pinochet (No.3) ( 2000) AC 147.
[ix] A Spanish court has also convicted a former Argentinian naval officer, Adolfo Sclingo, for torture and crimes against humanity committed abroad; a second Argentinean naval officer, Ricard Cavallo, was also prosecuted, following his extradition from Mexico, although he was ultimately extradited to Argentian to face trial there.
[x] Cassese, ‘ When May Senior State Officials Be Tried for International Crimes ?
[xi] Cassese, above n 77, 870-1; Summers, ‘ Diplomatic Immunity Ratione Personae n 89, 470-2
[xii] See Kolodkin, Second Report, p.56; ‘ The judgement in the Pinochet case having given an impetus to discussion on this issue, has not led to the establishment of homogeneous court practice’
1) Abass, Ademola, 2005. The competence of the Security Council to Terminate the Jurisdiction of the International Court, 40, Texas International Law Journal263.
2) Ago, Roberto. 1957. Positivism Law and International Law, 51 American Journal of International Law
3) Arendt, Hannah. 1958. The Human Condition. University of Chicago Press
4) Cassese, Antonio. 2008. The human dimension of international law: Selected papers. New York: Oxford University Press
5) Dworkin, Ronald. 1977. Taking Rights Seriously. Cambridge: Harvard University Press
6) Frey, Linda, and Marsha Frey.1999. The history of diplomatic immunity. Columbus: Ohio State University Press
The author is a Postgraduate Student in the Department of International Law at Central European University, Budapest. He received his Bachelor in Law from London Metropolitan University (United Kingdom) and Roosevelt University (United States of America). In addition, he holds Juris Doctor/ LLB from University of London, United Kingdom. Article submitted by the author.
The views expressed in this piece are that of the author and the publication of the piece on this website does not necessarily reflect their endorsement by the website.