Is Personal Immunity Becoming an Unjustifiable Barrier for Accountability? The Dilemma of Lifelong Immunity of Authoritarian Heads of State Before Foreign Domestic Courts

[Ezequiel Podjarny is an Argentine professional working as a Legal and Policy Fellow at the Human Rights Foundation. He holds an MA in International Law from the Geneva Graduate Institute and an MSc in Human Rights from the London School of Economics]

When revising the literature and jurisprudence on the subject of the personal immunity of foreign officials, the opinion of scholars and diplomats appears to show an overwhelming consensus.  They reject the existence of exceptions to the personal immunity of sitting heads of State, heads of government, and foreign ministers from the jurisdiction of foreign domestic courts (Skander Galand, p. 192).

With the development of the International Criminal Law framework, the creation of the International Criminal Court (ICC), and the wide recognition of exceptions to functional immunity of foreign State officials accused of core international crimes like war crimes and crimes against humanity, the international community has already demonstrated the need to reform the rules of immunity in the shared interest to promote accountability. However, as absolute personal immunity still holds strong, for the sake of international justice, an active decision to recognize exceptions is overdue.

On July 25, the French Cour de Cassation issued a decision precisely on that line. The ruling nullified an arrest warrant against former Syrian president, Bashar al-Assad, issued while he was still in office. After concluding that a unilateral act of non-recognition from the French government did not affect the immunity of al-Assad, it stated that “in the state of international law, crimes against humanity and war crimes are no exception to the principle of the immunity of jurisdiction of foreign heads of state in practice.” (p. 8)

The Court insisted that its decision did not translate into impunity, in part due to the temporary nature of personal immunity, which is removed as a barrier to establish jurisdiction once the official leaves office, and because officials could either be tried domestically or by international Courts when the case allows it. (p. 9).

The opinion of the French apex court aligns with the most cited piece of international jurisprudence on the matter. The Arrest Warrant case was decided by the International Court of Justice in 2002. In the judgment, the Court found that Belgium had breached customary international law by circulating an arrest warrant against the incumbent foreign minister of the Democratic Republic of Congo (Gaeta, p. 317), and, like the French judges did, remarked that personal immunity does not lead to impunity with the same arguments (Judgment, par. 60 & 61).

Yet, as the push for a stronger emphasis on the fight against impunity for core international crimes continues to move forward, a clear dilemma becomes increasingly evident, and it forces one to ask: What happens when personal immunity is not temporary and domestic accountability is unlikely to happen? Should there be a red line for immunity for autocrats accused of committing international crimes who are set to rule for life?

This is precisely the scenario currently taking place in Venezuela and Nicaragua, two countries with autocratic rulers who have dismantled democratic institutions and the separation of powers, and who are widely accused of committing crimes against humanity against their peoples. As they hold on to power indefinitely, the efforts to hold them accountable expose the dilemma presented by absolute personal immunity and the inaccuracy of the rationale supported by the judges so far. I argue that these cases demonstrate the need for the recognition of exceptions to personal immunity, as a logical next step in the consolidation of the anti-impunity norm in international law.

The Dilemma Exposed: Heads of State on Trial in Argentina

In 2024, two separate federal criminal courts of the Argentine judiciary issued arrest warrants against three incumbent heads of State, Venezuelan President Nicolás Maduro, and Nicaraguan co-Presidents (and spouses) Daniel Ortega and Rosario Murillo (Murillo held the position of vice-president when the warrant was issued). These fall within trials in which Argentina is exercising universal jurisdiction following complaints lodged by groups of victims and local and international civil society organizations. Argentina has become a hub for victims to seek accountability for violations committed against them and their communities, with ongoing cases being investigated on accusations of genocide against the Rohingya in Myanmar and the Uyghurs in China.

Universal jurisdiction “amounts to the assertion of jurisdiction to prescribe in the absence of any other accepted jurisdictional nexus at the time of the relevant conduct.” (O’Keefe, p. 4), meaning that the country establishing jurisdicion, in this case Argentina, has no connection to the crimes alleged through the nationality of the victims or of the accused, nor were the offenses committed in its territory. The principle is rooted in the same driver that motivated the recognition of exceptions to immunity, the shared universal interest to punish and prevent crimes recognized under international law, including crimes against humanity.

Venezuela and Nicaragua represent two of the most serious human rights and humanitarian crises in the region. Both the United Nations’ Independent Fact-Finding Mission on Venezuela (FFM) and the Group of Human Rights Experts on Nicaragua (GHRE) have found extensive evidence of crimes against humanity, with direct responsibility links to the top echelons of the government of each country, including top military and security officials, members of the cabinets, and the Heads of State themselves. But after years of autocratization and undermining of judicial independence, there are no expectations of any accountability processes taking place domestically, and if they were announced, they would certainly not be trusted.

In these cases, the reasoning that the French court used to insist that personal immunity does not lead to impunity doesn’t seem to hold. In the case of Nicaragua, there are no international courts that currently have jurisdiction over its officials, barring a highly unlikely referral by the UN Security Council to the ICC, which is so far the only mechanism that would allow the ICC to investigate a country that is not a party to the Rome Statute. As for Venezuela, while there has been an open investigation by the ICC since 2021, also looking into crimes against humanity committed by Venezuelan officials, no warrants have been issued, even after the intensification of State repression and persecution following the presidential elections of July 2024, leaving advocates for justice in Venezuela disappointed as they struggle to understand the silence coming from what should be their ultimate recourse for accountability. It is in this context that the FFM stressed in its latest report that “the only hope to find justice for victims lies with the international community”.

The trials in Argentina are then a “last-resort” effort to hold officials accountable, but while some officials could be the object of lawful prosecution and arrest ordered by Argentinian judges (putting aside a separate debate on the Argentinian exercise of absolute universal jurisdiction), in the case of the heads of State, the current state of international law and its rules on personal immunity appear to shield them from being held accountable. Following the reasoning of the Cour de Cassation, when crimes against humanity are not only committed, but they are inherently the means through which autocrats hold on to power indefinitely while undermining domestic justice, personal immunity does, in fact, translate to impunity.

The need for an active policy decision to reform

Immunity rules in general are not inflexible or unchangeable. Until not too long ago, functional immunity would’ve also shielded officials from prosecution, but the international community has made significant progress in the push for an anti-impunity norm (Han & Rosenberg, p. 728) that now recognizes clear exceptions for international crimes committed by foreign officials. However, the concern that exceptions to personal immunity could lead to diplomatic chaos and alter the proper conduct of international relations appears to make this set of rules more unbending.

One clear sign of this is the absence of considerations for exceptions in the work of the ILC concerning immunity ratione personae in draft article 4, in the way that they were included in draft article 7 for immunity ratione materiae. During the ILC’s 75th session, several States insisted through comments under draft article 4 on the absolute nature of personal immunity (including Iran, p. 7; Russia, p. 42; United Kingdom, p. 48; Austria, p. 54), and that the standard of the draft, as well as that adopted by the ICJ, reflects customary international law. Interestingly, after arguing for the possibility of attributing “absolute immunity” to officials beyond the traditional troika in its comment under draft article 3 (p. 43), Russia went on to indirectly point out at least a part of the fallacy that personal immunity as a norm is inherently temporary, noting that monarchs and foreign ministers don’t actually have predetermined terms (p. 47), and thus are covered by immunity until they either leave or are removed from their positions.

Other discussions have taken place within the framework of the ICC over States that failed to arrest foreign heads of State from non-parties to the Rome Statute. In its latest decision on Mongolia’s failure to arrest Russian president Vladimir Putin, the ICC chamber stressed that the purpose of the Rome Statute takes precedence over the bilateral obligations owed between States, including the customary rules on immunities (Decision, par. 28). While this decision may only be relevant to instructions issued by the ICC itself, it points to an approach that insists on giving priority to accountability over immunity. This is significant since it is widely accepted that immunities cannot be invoked in international tribunals, but this approach by the ICC goes further since it would apply even when the officials hail from a State which has not consented to be subject to the international tribunal’s jurisdiction, and when it has not been established as a dedicated multilateral mechanism.

Still, if the ICJ were allowed to adjudicate over the Argentinian arrest warrants against Maduro, Ortega, and Murillo (which is unlikely considering that Argentina has not made a declaration accepting the jurisdiction of the Court), it is highly likely that – as things stand – they would reach the same conclusion as they did in the Arrest Warrant case of 2002 and find that Argentina is in breach the customary international rules of personal immunity of Heads of State. It comes down then to an active decision by the international community to address the extreme cases that Nicaragua and Venezuela represent.

The untenability of the current state of affairs

As things currently stand, the rules of immunity render the international criminal law framework largely ineffective if efforts to hold high-level officials widely accused of committing crimes against humanity accountable from abroad are inviable. With the rules as they are presented today, a head of State that manages to stay in power through repression and the perpetration of international crimes would remain untouchable by any form of criminal prosecution, potentially for the rest of their life.

The severe human rights and humanitarian crises in Venezuela and Nicaragua challenge the notion that personal immunities preserve stability. On top of the systematic perpetration of gross human rights violations in both countries, millions of Venezuelans have fled their country, while hundreds of Nicaraguans have been exiled and stripped of their citizenship.

If the exceptions to functional immunity consolidated under the premise that acts that amount to international crimes cannot be considered officials acts of a state official, then it is possible for the international community to identify a standard under which the protections attributed to a head of State, especially to those who remain in power in violation of the rules of their own domestic legislation, become incompatible with the international community’s interest in preserving international relations and to prevent and combat the perpetration of core international crimes.