The Extradition Question: Immunity and the Head of State

Author(s): Sara Criscitelli

Source: Georgetown Journal of International Affairs , Winter/Spring 2005, Vol. 6, No.
1 (Winter/Spring 2005), pp. 81-86
Published by: Georgetown University Press

Stable URL: https://www.jstor.org/stable/43134076

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 Law&Ethics

The Extradition Question

Immunity and the Head

Sara Criscitelli

In 1999 ^e United Kingdom's House of Lords justified Sara

the Criscitelli
served as Assistant
possible extradition of Augusto Pinochet, Chile's former
Director in the Office

head of state, to Spain for prosecution on torture -related

of International Affairs
at the U.S. Department
charges. Its decision in Regina v Bartle and the Commissioner of Police
of Justice.
for the Metropolis and Others Ex Parte Pinochet recognized that heads of
state generally enjoy immunity under international law; a
British statute also confers immunity upon them.
Nonetheless, it concluded, in the narrow circumstances pre-
sented in that case, that the UN Convention Against Torture
or Other Cruel, Inhuman or Degrading Treatment (the
Torture Convention) and British domestic legislation
trumped Pinochet's head of state immunity.1 Human rights
advocates hoped the decision would impel other nations to
bring heads of state to justice who commit atrocities in their
official capacities and presume impunity.2
Despite international pressure to follow the House of Lords'
lead in Pinochet , the extradition of a sitting head of state remains
virtually unthinkable. Although the decision was significant, it
has not substantially enabled national prosecutions of foreign
heads of state or actually eroded head of state immunity.
Indeed, the decision affirmed the immunity's viability by find-
ing that it may be overridden only in narrow circumstances.
Moreover, Pinochet has not inspired any other state to extradite a

Winter/Spring 2005 [ 8 1 ]

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THE EXTRADITION QUESTION

Liability
sitting or former head of state to answer of State Actors:
criminal charges. In 0,002, the Historical Precedence. Head of
International Court of Justice (ICJ) state immunity has long been accepted in
ordered that an arrest warrant issued by international law, though its justification
Belgium for another country's serving and contours have been varied and
minister of justice be quashed on grounds imprecise. The ICJ' s own observation
of head of state immunity. The Courtregarding head of state immunity echoes
stated that "in international law, it is the view of many international law
firmly established that, as also diplomaticauthorities that there exists a tradition of
and consular agents, certain holders ofabsolute immunity of a sitting head of
high-ranking office in a State, such as the state from the criminal jurisdiction of
Head of State, Head of Government and other states.4 Head of state immunity is
Minister for Foreign Affairs, enjoyalso not formally provided for in inter-
immunities from jurisdiction in other national agreements and is furthermore
States, both civil and criminal."3 not based on any single commonly
When a state brings criminal chargesaccepted principle. Nevertheless, over
against someone outside its territory, it the last sixty years, the once absolute
often looks to extradition as the process immunity of heads of state has eroded
for acquiring in personam jurisdiction overwith respect to a narrow class of univer-
the defendant; and when that defendant sally condemned acts.
is a present or former head of another This erosion originated with the
state, additional and sometimes disabling Nuremberg Tribunal, which was consti-
complications ensue. The extraditiontuted specifically to prosecute high-rank-
request often triggers a clash between theing government officials in a court of law
existing protection of head of statefor war crimes. The tribunal's mandate

immunity and the treaty-based obliga-also required the denial of official immu-
tions of the requested state to extradite nity to the defendants. Article 7 °f the
persons located within its territories. The London Agreement, which established
Pinochet decision may support the princi- the Nuremberg Tribunal, provided that
ple that it can be acceptable under inter- "[t]he official position of defendants,

Over the last sixty years, the once absolute

immunity of heads of state has eroded with
respect to a narrow class of universally
condemned acts.

national law to extradite a former head of

whether as Heads of State or responsible
state, but it clearly does not guarantee officials in Government Departments,
shall not be considered in freeing them
that any state will deny the extradition of
the former head of another state in from responsibility or mitigating punish-
response to a treaty request. ment."5 The denial of immunity was later

[82] Georgetown Journal of International Affairs

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 CRISCITELLI Law & Ethics

echoed in the UN International Law obligations undertaken implicitly

Committee's Principles of Internationalinclude
Law prosecution and extradition of
state actors,
Recogni&d in the Charter of the Nuremberg Tribunal seemingly without limita-
tion,IIIthough
and in the Judgment of the Tribunal.6 Principle the Torture Convention
of this document states that "[t]he fact
does not expressly deny immunity.8
that a person who committed an act which
Finally, ad hoc international tribunals
constitutes a crime under international established by the UN to prosecute

The U.S. Department of Justice has

proceeded, albeit rarely, in criminal
investigations or prosecutions of foreign heads
of states.

offenders for genocide, crimes against

law acted as Head of State or responsible
Government official does not relieve himhumanity, and war crimes expressly deny
from responsibility under international immunity to heads of state; in similar
law." fashion, the International Criminal
In 1951» following Nuremberg, theCourt (ICC) also denies head of state
Convention on the Prevention and immunity.9 The ongoing International
Punishment of the Crime of Genocide Criminal Tribunals for the Former

Yugoslavia
(the Genocide Convention) entered into (ICTY) prosecution of
Slobodan Milosevic, former president of
effect.7 It obligates state parties to under-
take prevention and punishment of Federal Republic of Yugoslavia,
the
genocide and to carry out these duties
affirms that these tribunals' authority to
prosecute a head of state without regard
without affording any immunity protec-
tion to heads of state or other officialto immunity is not merely an abstract
state actors. Article IV of the Genocideprinciple; so does the case of another
Convention provides that "[pļersons head of state, Bijana Plavsic, who had
committing genocide or any of the other served as one of a three -member joint
acts enumerated in Article III shall be presidency of the Serbian Republic of
Bosnia and Herzegovina and pleaded
punished, whether they are constitution-
ally responsible rulers, public officials or
guilty in the ICTY to charges of persecu-
private individuals." The Convention
tion on political, racial, and religious
Against Torture and Other Cruel,grounds.10
Inhuman or Degrading Treatment Though
or authorities assume the exis-
Punishment imposes similar obligations tence in international law of head of state
on states -parties to criminalize, prose-
immunity, there remains considerable
cute, and extradite for acts of torture.
confusion and inconsistency as to the
The definition of torture in Article I parameters, justification, and the scope
links the proscribed conduct to personsof its application to head of state immu-
acting in an official capacity. Thus,nity
thefor former heads of state." Some states

Winter/Spring 2005 [83]

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THE EXTRADITION QUESTION

expressly grant immunity by statute.under

The international law: (i) if the head
of state's
United Kingdom provides immunity in own authorities undertake the
the State Immunity Act of 197^.
prosecution; (2) if those authorities
waive
However, the United States's authority is the head of state's immunity and
not statutorily limited, and the thusU.S.agree to the person s prosecution in
Department of Justice has proceeded,courts of another state; (3) if the person

Ultimately, the requested state must

have both the legal authority and the political
will to extradite. The influence of political will
cannot be emphasized enough.

(a) is no longer a head of state and ( b )

albeit rarely, in criminal investigations or
prosecutions of foreign heads of state.
faces criminal liability for purely private
acts or acts committed at a time when he
For example, the United States indicted
and thereafter prosecuted the de factoor she was not head of state; or finally (4)
head of Panama, declining to recognizeif the head of state faces criminal charges
his immunity as a head of state.12 Thebrought by an international tribunal.14
United States also investigated criminal It should be emphasized for clarity,
activities of former President Marcos
however, that head of state immunity is
after the Philippines waived his head of an issue if extradition of the head of
only
state immunity. state is being sought by a second state with
regards to national legislation or a bilat-
Immunity Today. N otwithstanding
eral treaty. As the ICJ made clear in
these developing exceptions, the general Democratic Republic of the Congo v Belgium , if a
doctrine of head of state immunity con- country proceeds criminally against its
tinues to elicit international adherence. own sitting or former head of state, that
In 2002, for example, the ICJ recog-prosecution does not involve or impli-
cate the international law doctrine of
nized and reiterated the "firmly estab-
lished" international law doctrine that head of state immunity. The ICJ decision
also affirms that if the head of state is
grants immunity to sitting heads of state
and other high government officials
outside the territory of his state, and he is
from the criminal jurisdiction of other
charged in his own state with a crime, his
states. Consistent with that doctrine,extradition
in cannot be contested under

Democratic Republic of the Congo v Belgium head

, the of state immunity; his state, implic-
ICJ determined that Belgium could itly
not and possibly explicitly as well, has
waived immunity. Thus, for example,
attempt to arrest and prosecute a sitting
foreign minister.13 The ICJ posited onlycourts authorized the extradition of
U.S.
four circumstances in which criminal a former Venezuelan head of state,
prosecution of a head of state or high
Marcos Jiminez, to Venezuela.15 In addi-
government official would be allowed
tion, Security Council resolutions estab-

[84] Georgetown Journal of International Affairs

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 CRISCITELLI Law & Ethics

lishing the ICTY and the International ters of which are rarely defined in the
Criminal Tribunals for Rwanda (ICTR) treaties themselves. National courts

obligate all UN member states to surren- instead interpret political offense in

der persons to those tribunals without accordance with their own laws and rea-

regard for the person s status as an exist- soning; the political offense doctrine
ing or former head of state. protects the requested state from becom-
Furthermore, states that join the ICCing involved with and taking sides in the
internal political conflict of another
also accept the obligation to surrender
heads of state to that body. state.17 Some states, by treaty or by
domestic legislation, preclude extradi-
Continuing Difficulties. In cases
tion if, in the view of the requested state,
the request for extradition is "politically
that do implicate head of state immunity,
substantial obstacles continue to impede motivated"- and, not surprisingly, there
is considerable leeway in determining the
the extradition of heads of state - despite
the House of Lords' s decision in Pinochet motivation underlying a request.
and the rejection of immunity by inter- Finally, domestic legislation or consti-
national tribunals. First, as previously tutions may grant head of state immuni-
noted, the ICJ judgment in Democratic ty and prevent extradition even if all of
the treaty requirements are satisfied. The
Republic of the Congo v Belgium , which post-
dates Pinochet , unambiguously affirms thatUN resolutions and Article 89 of the
Rome Statute impose an obligation to
(a) sitting heads of state are immune from
arrest for extradition regarding domestic"surrender" but not to "extradite."
prosecutions undertaken by second states Article I02 of the Rome Statute explains:
(though not by international tribunals); "For the purposes of this Statute: (a)
and (b) subject to very narrow excep-'surrender' means the delivering up of a
tions, head of state immunity remains aperson by a State to the Court, pursuant
viable principle of international law. to this Statute; (b) 'extradition' means the
Second, bilateral treaties or the request- delivering up of a person by one State to
ed state's domestic legislation may pro-another as provided by treaty, conven-
vide alternative grounds for the denial of tion, or national legislation." The use of
the
extradition. Japan, for instance, has term surrender instead of extradite
refused Peru's request for the extraditionhad several purposes, including the need
of its former head of state, Japaneseto overcome individual countries' statu-
national Alberto Fujimori, on the tory or constitutional provisions that
would otherwise preclude legal actions
grounds that Japan does not extradite its
nationals.16 As the Pinochet decision recog- against sitting or former heads of state or
nizes, extradition may be denied if thehigh government officials. Thus, the
requesting state has charged the offenderrelaxation of immunity protections and
with an extraterritorial offense for whichthe availability of "surrender" - explicitly
the requested state has no clear analogue distinguished from extradition - as a
in its own criminal code. The failure to mechanism for bringing a head of state to
establish dual criminality can defeatjustice
an before an international tribunal
extradition request. Extradition treaties
do not necessarily signal a willingness to
also commonly authorize denial of extra-
relax head of state immunity in response
dition for political offenses, the parame-
to a bilateral extradition request.

Winter/Spring 2005 [85]

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THE EXTRADITION QUESTION

of states to extradite former heads of

Ultimately, the requested state must
have both the legal authority and state:
the Senegal refuses to extradite the for-
mer president of Chad for prosecution;
political will to extradite. The influence
Zimbabwe continues to refuse to surren-
of political will cannot be emphasized
der the former head of state of Ethiopia
enough. Even after receiving the author-
to that country; and Nigeria, having
ity to extradite Pinochet, the government
granted asylum to Charles Taylor, the
of the United Kingdom ultimately opted
against extradition. former president of Liberia, has thus far
resisted requests from the Special Court
Rejections of requests for extradition
for Sierra Leone for his surrender.1
of other former heads of state for serious
crimes in the wake of the Pinochet decision
While there continues to be hope that
further demonstrate that Pinochet may
future extradition requests may be suc-
ultimately have a minimal effect on
cessful, it is premature to conclude that
international practice. The realities of
Pinochet has effected a fundamental change
in international practice.
today show the continuing unwillingness

NOTES

I See R. v Bartle and the Commissioner of Police (ICTR)

for the, www.ictr.org/ENGLISH/basicdocs/statute.
Metropolis and Others Ex Parte Pinochet, 3 W.L.R.html. The Rome Statute defining the jurisdiction and
827 (H.L.
1999). On humanitarian grounds theprocesses Home of the International Criminal Court also
Secretary thereafter declined to order Pinchoceťs
disallows head of state immunity in Article 27» head-
extradition, and he was allowed to return to Chile.
ed "Irrelevance of official capacity." 2187 U.N.T.S. 3
(entered into force I July 2002); see www.icc-
2 For example, see Human Rights Watch, available
at http://hrw.org/reports/i999/chile; Human cpiRights
. int/ officialj ournal/legalinstruments . html .
First, available at http ://www.humanrightsfìrst.IO Case Nos. IT-OO-39 and 4°/I~S, Judgment
org/
media/200I_I996/ pinoII98-2 .htm) . (27 February 2003). See http://www.un.org/
3 Arrest Warrant of II April 2000 ( Democratic
icty/ glance/Plavsic . htm .
II For
example, see Comment, Resolving the
Republic of the Congo v Belgium ), Judgment (I.C.J. Reports
2002). Id. at p. 18 para. 51. Confusion over Head of State Immunity: The
4 For examples, see Oppenheim's International
Defined Right of Kings," Columbia Law Review 86
Law, vol I, (Jennings and Watts 9th ed, 1992) (1986):
» IO38. 169, 177-179-
5 Agreement by the Government of the United12 United States v Noriega, lij F.3d I206, I2II-I2I2
(nth Cir.
Kingdom of Great Britain and Northern Ireland, the 1997)-
Government of the United States of America, the
13 See Democratic Republic of the Congo v Belgium, n. 3,
Provisional Government of the French Republic,
supra. and
the Government of the Union of Soviet Socialist14 Ibid.
Republics for the Prosecution and Punishment of15 See Jiminezv Aristegueta, 311 F.2d 547 (5^ Gir.
Major War Criminals of the European Axis 1962),
and cert, denied, 373 U.S. 914 (1963).
16 See Arnd Duker, "The Extradition of
Charter of the International Military Tribunal, con-
Nationals: Comments on the Extradition Request for
cluded at London, 8 August 1945» entered into force,
8 August 1945, 82 U.N.T.S. 279, 59 Stat. 1544. Alberto Fujimori," German Law Journal II
6 UN Doc. A/1316, 2 Y.B.I.L.C. 374 (1950).(November 2003), available at http://www/german-
7 yS U.N.T.S. 277» entered into force I951- lawjournal. com/ article/ php?id= 334 .
8 G.A. Res. 39/46 (Annex), UN GAOR, 39"1 17 Many multilateral conventions that obligate state
Sess., Supp. No. 51, at 197, UN Doc. A/39/51 (1985). parties to criminalize and prosecute conduct deemed
9 See Security Council resolutions establishing the extremely serious by the world community- such as
International Criminal Tribunals for the Former genocide, torture, and terrorist offenses- also impose
Yugoslavia (ICTY) and Rwanda (ICTR): S/Res/827 extradition obligations and require that state parties
(1993), Article 7-2 (ICTY), www.un.org/icty/legal- not deny extradition on political offense grounds. For
doc/index.html; S/Res/955 (!994)» Article example, 6.2 Article VII, Genocide Convention.

[86] Georgetown Journal of International Affairs

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