Vie for the Big Guy: Developing Practice or Déja-Vu?

[Miranda Lalla is a Canadian-Italian jurist and an Advanced LL.M. candidate at Leiden Law School’s Grotius Centre for International Legal Studies]

In the 2002 Arrest Warrant case, the International Court of Justice (ICJ) ruled in favor of upholding the immunity of the sitting Congolese Foreign Minister from the jurisdiction of Belgian Courts. The dissenting Judge Al-Khasawneh urged for an interpretation of the customary norm of state immunity ‘much more in consonance with the now firmly established’ (p. 98, para. 7) trend towards its restrictive application. Yet, in the twenty-one years since, the creation of custom indicating a more stringent approach to immunities for a sitting head of state has yet to materialize. Nevertheless, following an investigation by its Crimes against Humanity division, the Paris Judicial Court announced on Wednesday that it would take a stab at the veil of immunity, issuing an arrest warrant for four Syrian nationals, including the incumbent president, Bashar Al-Assad, for alleged complicity  in international crimes committed throughout the country’s protracted civil war. 

The warrant comes the same week as the ICJ indicated provisional measures in the ongoing Application of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment case. These measures urge the Syrian state to cease and prevent further human rights violations, and come at the behest of a joint application by Canada and the Netherlands. Though not yet addressed by the Court, the initiating parties cite, among other concerns, the alleged use of chemical weapons by the Al-Assad regime ‘to intimidate and punish the civilian population’ (p. 1, para. 2). 

A Tale of Two Regimes

References in this week’s news cycle to ‘exceptions’ precluding the immunity of Al-Assad and his cronies in front of French courts must be heavily nuanced. To posit the existence of a universal ‘exception’ to the immunity enjoyed by high-ranking officials would oversimplify the intricate nature of this legal principle. This is because the law on the immunity of a state agent’s office (immunity ratione personae), and the law on the acts of a state agent within the course of their functions (immunity ratione materiae) have been subject to two very distinct evolutionary arcs. 

The rule ensuring a head of state’s immunity ratione personae from foreign criminal jurisdiction is a principle of customary law, ‘firmly established […] to extend to acting diplomatic agents [and] holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs’ (Arrest Warrant, p. 21, para. 54). The gradual contraction of its scope, limited solely to these titles, has not followed a linear trajectory (five years after the Arrest Warrant ruling, the Paris prosecutor notably dismissed a complaint against American Secretary of Defense, Donald Rumsfeld, alleging his persisting customary immunity on the basis of his former title). However, a wealth of case law from various national jurisdictions demonstrates a prevailing inclination to affirm a more exclusive membership to the ratione personae club in line with the scope of application set out with the ICJ in 2002. If France were to follow this established rule of law, Al-Assad, as a sitting head of State, would benefit from dual insulation from foreign criminal jurisdiction under both immunity regimes. However, the other subjects of the November 15^th warrant, being the incumbent Syrian president’s brother and two army generals, would benefit only from the weaker immunity ratione materiae. 

Immunity ratione materiae from foreign criminal jurisdiction has seen itself significantly caveated and developed since the days of ‘the King can do no wrong’. In recent years, the chinks in the armour of a diplomatic office have been widened, alongside the rise of states asserting universal jurisdiction over international crimes. This form of immunity, known as ‘functional’, is limited to official acts (para. 403) performed in office, and, as stated by the International Law Commission in its Draft Articles on the Immunity of State officials from foreign criminal jurisdiction, would exclude behaviour amounting to ‘crimes against humanity’ (Draft Article 7(b)) and ‘war crimes’ (Draft Article 7(c)). This has been confirmed by practice: by way of example, the German Federal Court of Justice confirmed, in 2021, that functional immunity could not serve as a barrier to the prosecution of low-ranking foreign State officials in their commission of war crimes. 

However, it serves to remember that, even if immunity ratione materiae were to be lifted for the three non-head of state officials implicated in the French arrest warrant, Bashar Al-Assad would presumably benefit from both immunities ratione personae and ratione materiae (see the ILC’s Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction, Arts. 4 and 5). 

State practice would support this assertion. It goes without saying that the ILC’s proposals for the progressive development of law are not made in a vacuum. They mirror national endeavors to address the impunity gap concerning the conduct of high-ranking state officials in the execution of their duties, particularly when such behavior could constitute international crimes. Therefore, in emphasizing that the Draft Article 7 carve-out for international crimes ‘does not apply in respect of immunity from jurisdiction ratione personae’, the drafting body reflects prevailing state practice, which maintains the personal immunity of sitting heads of state. Drawing on a national example, the ILC points to the inability of the Spanish Audiencia Nacional to prosecute Rwandan President Paul Kagame for alleged complicity in international crimes committed against Spanish, Rwandan and Congolese victims on the grounds that ‘immunity of jurisdiction of a foreign Head of State is an indisputable reality by legal imperative’ (p. 152). Outside of international courts, and without a waiver of immunity by an agent’s home state, one might not imagine that a head of state would lose the protection offered to them by their title. 

France v. Personal Immunity of a Sitting Head State: A Case of Déja-Vu? 

The French judiciary is well-acquainted with the impediment posed to the application of universal jurisdiction by the law governing personal immunity. In 2001, the French Court of Cassation ruled against an order by the Court of Appeal of Paris in relation to the Libyan head of state, Muammar Gaddafi’s complicity in the commission of ‘crimes, regardless of [their] gravity’. The Court of second instance further characterized the decision to recommend the investigation of the complaint as a ‘disregard’ of the ‘customary law on the immunity granted to foreign heads of state […] consistently recognized by international society’. Some two years later, when a complaint was lodged by a civil society organization against Zimbabwean president Robert Mugabe  during a diplomatic visit to Paris in February of 2003, the office of the public prosecutor immediately dismissed it on the grounds of Mugabe’s personal immunity as an acting head of state. 

That is not to say that the media frenzy generated by these complaints at the time they were lodged was not significant in the Court of public opinion in further denouncing potentially criminal policies pursued by high-profile political figures. In Al-Assad’s case, a spokesperson from Civil Rights Defenders, one of the NGOs which initiated the complaint, asserted that the French prosecutor’s choice to issue the warrant sends a ‘strong and clear message… the fight for justice continues.’

Moreover, when considering the specific matter at the core of the purported breach of law—namely, the use of chemical weapons—the arrest warrant assumes an additional layer of legal significance. Chemical weapons persist as a concerning tool in the arsenal of non-state actors, exemplified by Da’esh/ISIL’s use of them as a ‘strategy […] to leverage maximum violence’. The United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD) actively monitors the development and usage of these weapons in Iraq, with the stated aim of enhancing the potential for national or international prosecution of those responsible. The recent arrest warrant issued by French prosecutors signals a willingness to advance this cause.

Not Now, But Not Never: An Exception to the Immunities of a Former Head of State 

At the time of the Arrest Warrant ruling, Professor Antonio Cassese pointed out the majority’s oversight in neglecting to ‘refer to the customary rule lifting functional immunities for international crimes allegedly committed by State agents, a rule that becomes operational as soon as the rules on personal immunities are no longer applicable’ (p. 867). In its most recent report on the Immunity of State officials from foreign criminal jurisdiction, the ILC pointed to the infamous 1998 Pinochet ruling (and the resolute position taken by the U.K. House of Lords in revoking a former head of state’s functional immunity concerning crimes against humanity) to substantiate the existence of this rule of custom (p. 45). 

This demonstrates that, under certain circumstances, pursuing a ringleader’s accountability for the international crimes they oversaw is well within the realm of possibility. Once an official title is lost, and immunity ratione personae ceases to apply, a foreign court is at liberty to lift immunity when an official’s behaviour amounts to an international crime. One thing is certain: should Bashar Al-Assad ever be deposed, venturing beyond national borders would, uncontroversially, expose him to the criminal jurisdiction of foreign national courts.  

Altering the Custom on Immunity Ratione Personae 

Does this mean that the French arrest warrant as it pertains to the sitting Syrian president is destined to be dismissed by the French judiciary? Some scholars have argued that the jus cogens nature of international crimes would create an exception to the applicability of the customary norm on head of state immunity. Recognition of the peremptory authority of jus cogens norms within the normative hierarchy would result, so the argument runs, in their ability to supersede both treaty law and custom contrary to their prescriptions. Backers of this theory would argue that an allegation of complicity in an international crime would ‘obliterate any procedural or other obstacles to ensuring accountability for breach of such prohibitions’ (p.172). However, when faced with this purported conflict of norms in the Jurisdictional Immunities case, the ICJ drew a distinction between the procedural nature of the law on immunities, and the substantive nature of a jus cogens norm, to conclude that no conflict between their applicability exists (p. 140, para. 93).

Shifting the Scales?

While it remains true that state practice may indicate a will to abrogate the applicability of personal immunities, a large body of law indicating the judiciary’s unwillingness to shift course on this matter plays against France’s intentions—no matter how politically salient the warrant may be. Will the French arrest warrant for Al-Assad be the first step towards altering customary law on head of state immunity, or will it be dismissed to the filing cabinets of the Parquet, much like the headlining warrants that have preceded it? Only time will tell. However, as stated by Judges Higgins, Kooijmans and Buergenthal in their joint separate opinion to the Arrest Warrant ruling, ‘what is regarded as a permissible jurisdiction and what is regarded as the law on immunity are in constant evolution […] the weights on the two scales are not set for all perpetuity’ (p. 86, para. 75).