Some (Tongue in Cheek) Advice for Iran Regarding Trump

A couple of days ago, Iran issued an arrest warrant for Donald Trump, alleging that he is responsible for murder and terrorism in connection with the drone strike that killed General Qassem Soleimani last January.

Practical problems aside — Interpol has already refused to issue a Red Notice for Trump’s arrest — there is an important legal barrier to prosecuting Trump: his personal immunity as President of the United States. All heads of state, even terrible ones, enjoy personal immunity from arrest or prosecution by another state.

That said, Iran has a ready-made solution to this immunity problem: create an international court with one or more of its allies and then ask that international court to charge Trump with the war crimes of murder and terrorism. As the ICC Appeals Chamber held unanimously in the Jordan appeals judgment, international courts do not have to recognise personal immunity:

115. The Appeals Chamber considers that the absence of a rule of customary international law recognising Head of State immunity vis-à-vis an international court is also explained by the different character of international courts when compared with domestic jurisdictions. While the latter are essentially an expression of a State’s sovereign power, which is necessarily limited by the sovereign power of the other States, the former, when adjudicating international crimes, do not act on behalf of a particular State or States. Rather, international courts act on behalf of the international community as a whole. Accordingly, the principle of par in parem non habet imperium, which is based on the sovereign equality of States, finds no application in relation to an international court such as the International Criminal Court.

And what is an international court? According to a majority of the Appeals Chamber in their separate opinion, any court created by two or more states:

56. But, what is an ‘international court’? An ‘international court’ or an ‘international tribunal’ or an ‘international commission’ (in the context of administration of justice)—nothing turns on the choice of nomenclature—is an adjudicatory body that exercises jurisdiction at the behest of two or more states.

I’m quite sure Iran can find at least one other state willing to create an international court with it. Syria would be an obvious choice. Maybe Venezuela for some regional diversity. The International Court of Iran, Syria, and Venezuela™ (ICISV) could then prosecute Trump despite his personal immunity — and just as importantly, Iran would then be free to arrest Trump and surrender him to the ICISV, because the Jordan Appeals Chamber has also told us that personal immunity does not apply when a state is acting on an international court’s behalf:

114. The absence of a rule of customary international law recognising Head of State immunity vis-à-vis international courts is relevant not only to the question of whether an international court may issue a warrant for the arrest of a Head of State and conduct proceedings against him or her, but also for the horizontal relationship between States when a State is requested by an international court to arrest and surrender the Head of State of another State. As further explained in the Joint Concurring Opinion of Judges Eboe-Osuji, Morrison, Hofmański and Bossa and correctly found by the Pre-Trial Chamber in the Malawi Decision, no immunities under customary international law operate in such a situation to bar an international court in its exercise of its own jurisdiction.

To be sure, Iran would still have to find a way to get its hands on Trump. That might be difficult through ordinary channels, as Interpol’s reticence indicates. But there is always the possibility of kidnapping, following the precedent the US established when it snatched Manuel Noriega, denied his personal immunity, and then sentenced him to 40 years imprisonment for drug trafficking, racketeering, and money laundering. Kidnapping Trump might violate the sovereignty of the territorial state, but that would just require Iran to apologize, à la Israel to Argentina re: Eichmann. It would not create any individual right for Trump before the ICISV.

You’re welcome, Iran. My legal bill is in the mail.