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Santa Clara Journal of International Law


To date, most attempts at prosecuting heads of state have fallen short. At best, such attempts, even the modern attempts stretching from Iraq to Yugoslavia to Sierra Leone, have occurred under less than ideal circumstances, often far, far away from the actual place of alleged crime, or so distant in time to have lost some of its meaning. While academics, international lawyers and human rights advocates all praise the "Pinochet precedent" as paving the way for prosecuting deposed despots and ending the luxurious exiles of former dictators, in the end Pinochet was released from custody and returned home to Chile where he was embroiled in legal challenges for his alleged crimes until his death at age 91 in 2006. The Pinochet precedent never resulted in a conviction.

Simply placing a former head of state in the dock does not assure justice. In fact, both Milogevi and Hussein - and more recently, Taylor, Karadzic and Al Bashir--used their status as criminal defendants to challenge the legality of the proceedings against them; to juxtapose the alleged international crimes of NATO and the United States against their own atrocities; and to attempt to use their respective stages to transform the legal proceedings into a mockery of justice. While the tu quoque argument has not succeeded in the legal sense, the respective "you did it as well" arguments furthered by these leaders brings perverse attention to the political nature of their prosecutions. Ultimately, Milosevic died of a heart attack in his prison cell at The Hague without any legal resolution of the claims levied against him. To some he is a martyr, to others a monster. But despite the best efforts of the international community, neither he nor Pinochet will ever be a convict. In contrast, Saddam Hussein was quickly convicted and ceremoniously executed by hanging after a swift appeal. As the world continues to be embroiled in wars and genocides, one can only surmise the fate of other former leaders like Karadzic and others placed under arrest or currently in trial, such as Charles Taylor, Omar Hassam Ahmad Al Bashir and Alberto Fujimori.

These few examples only begin to explore the shortcomings of prosecuting heads of state. In every case herein chronicled, the leader is only "brought to justice" once he has lost political power and international clout. Other world leaders, whose crimes appear equally gruesome and legion, remain living their lives without fear of prosecution. While the cause of prosecuting heads of state is undoubtedly noble, the legal pedigree for such prosecutions is vulnerable. Despite the growing mandate of a few international treaties, state practice continues to weigh heavily in favor of according former heads of state complete immunity from prosecution for torture and other alleged international crimes. This article explores existing state practice relating to the prosecution of heads of state. Regardless of the burgeoning legal opinions proclaiming, ipse dixit, that customary law empowers countries to arrest and prosecute former heads of state for alleged acts of torture, disappearances, rape and murder, history--both recent and past-- provide limited support for these aspirational pronouncements.

This article will further expose the limits of prosecuting heads of state by first addressing the historical Westphalian approach to sovereignty and head of state prosecution. Because the nation-state was historically deemed impenetrable and the United Nations Charter protects the sovereign equality of all nation states, heads of state have routinely avoided prosecution for alleged international crimes through either inertia (the many in exile), comity (Saudi protection of Amin via their welcome), political compromise (Emperor Hirohito of Japan during World War II) or deference to the head of state as the state itself. This article challenges that the usual precursor to prosecuting a former head of state is military or political defeat and a radical change in support at home. The transfers of Milosevic, Karadzic and Charles Taylor provide three obvious examples. The future status of Omar Al-Bashir, whose arrest warrant was issued by the International Criminal Court ("ICC") in March, 2009, will provide an important benchmark for this theory.

Next, this article will evaluate the historical instances of head of state prosecution, with particular emphasis placed on the inconsistent approach of the Allies following World War II. While great efforts were made to prosecute the leaders of the Nazi regime, General Douglass MacArthur expressly secured immunity for Emperor Hirohito of Japan in exchange for the Emperor's participation in securing peace in Japan. Following the unconditional surrender of Japan, the Allied forces determined that the political calculus of immunity was more important than securing the prosecution of the Emperor, the acting head of state. Most surprising is the absolute silence in the post-World War II legal decisions discussing head of state immunity regarding Emperor Hirohito's express provision of immunity and the clear distinction between the statute governing the Nuremberg Tribunal and the statute governing the International Military Tribunal for the Far East (IMTFE), commonly referred to as the Tokyo Tribunal. While the former tribunal statute expressly permitted prosecution against heads of state, the IMTFE conspicuously omitted this provision. Thus, during World War II, one tribunal consciously chose to grant head of state immunity.

This article will trace the legal developments relating to head of state immunity from World War I, World War II and continuing to the Rwandan, Yugoslavian, Sierra Leonean and Sudanese conflicts that have spurred some form of international tribunal or attempt at prosecution. International treaties and case decisions will be presented and analyzed. Likewise, observations and commentary from scholars will be evaluated. While only one international treaty, the Genocide Convention, speaks directly to the relevancy of head of state status for prosecution, most of the wartime peace treaties and their attendant international tribunal statutes more clearly elucidate a lack of head of state immunity. Nevertheless, the source of many of these prosecutions continues to be military force or political downfall that presents a defeated defendant. From these few tribunal statutes and this lone treaty, modern courts have strained to find a consistent practice regarding head of state immunity. Rather than relying on actions, however, these modern courts dogmatically overemphasize the hollow written words relating to head of state immunity and ignore the empty actions or actual practice. Even as Pinochet flew home to Chile without succumbing to any criminal prosecution, overzealous advocates were praising the legal precedent established. The precedent, we must admit, includes Pinochet's de facto immunity. The recent examples of Hussein, Milosevic, Karadzic and Taylor may, however, finally be signaling a sea change of action, not simply rhetoric.

Finally, this article will inquire whether the exchange of amnesty via offers of exile are not, perhaps, a preferable option to the unfulfilled attempts at prosecuting former heads of state. If the question is peace or justice--assuming a choice must be made between the two--amnesty and exile may be a small price to pay to avert military action and expensive, dilatory prosecutions that may not, in the end, deliver justice. The question is not simply one of economic costs, but one also assessing the lost opportunity costs sacrificed in vain attempts to prove a disempowered dictator face "justice." While I, too, am all for the ideal of prosecuting individuals for atrocities committed against civilians, right now heads of state largely still sit only in the shadow of its threat.

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Santa Clara University School of Law

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