Issue #7: Does Saddam Hussein have head of state immunity?

No: By Linda Malone**1

Head of state immunity has long protected leaders and organs of States from prosecution for acts procured under the mantle of state leadership. It had its basis in customary international law,**2 and has evolved into a standard universally accepted by most countries. Head of state immunity has, however, been precluded in civil cases where the head of state''s actions were completely private in nature. It has also been dissolved when actions of the head of state are found to be in gross violation of international law, violations over which there is universal jurisdiction and violations which are contrary to principles of jus cogens.

Since WWII, international agreements and treaties have codified the expectation that head of state immunity can and should be waived in specific circumstances. Among these agreements are conventions and treaties to which Iraq is a signatory, including the Convention for the Prevention and Punishment of the Crime of Genocide. Article IV of The Convention states: "Persons committing genocide or any other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials, or private individuals."**3 Article 32 of the Vienna Convention on Diplomatic Relations states that "The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Article 37 may be waived by the sending State."**4 Iraq is noted as ratifying the Vienna Convention on Diplomatic Relations on January 14, 1970.

In addition to the above treaties and codifications, two international tribunals, as well as the Iraqi Tribunal, have discounted immunity for heads of state and government actors. The Rwandan and Yugoslavian tribunals, established to prosecute criminals similar to the ones in the case at hand, have specifically removed immunity for heads of state and state actors.

The existence of universal jurisdiction for a crime can be a strong indication that head of state immunity may not be available. While it is important to note that the existence of universal jurisdiction does not ensure dissolution of head of state immunity, it is often a significant indicator of a lack of protection. Universal jurisdiction, or the "principle of universality" first appeared in writing in the Nuremberg Charter, however the drafters of the Charter "insisted they were not making law, but instead were merely codifying a principle that had permeated history since the days of piracy on the high seas when these bandits were considered ''hostis humanis generis,'' or enemies of mankind."**5 "Universality has since generally been accepted to encompass crimes so heinous in nature that they constitute a mutual threat to all states; thus, the offender may be prosecuted by any state under that state''s national laws."**6

Universal jurisdiction is based on the philosophy that when a person violates international law in such a grotesque and profound manner, all states have an obligation to prosecute. In the much-publicized trial of former Chilean leader Augusto Pinochet for human rights violations committed under his reign, the British House of Lords viewed waiver of immunity not as an option, but as an obligation that fell upon any state that had access to the perpetrator of such an international crime.**7 This view is shared by jurists and scholars alike. It follows that if an obligation extends to all states in the word, even states where the violation did not take place, then logically that obligation falls upon the state where the violation took place - the state where the head of state reigned or the state where the head of state was captured. In other words, if an obligation is so universal that it requires states with a lesser interest to prosecute, then the state where the atrocities occurred shares that obligation or at least that right to prosecute, free from the hurdle of immunity.

Lastly, Iraq is a signatory to the Geneva Convention, but not Protocol I or II. It deposited the instrument of ratification on February 14, 1956. While Geneva did not apply in the Pinochet case, it might rise to a high level in the case of Iraq. Some of the crimes that Saddam Hussein and the Baathists are accused of committing occurred during a time of [what they claim as"> "conflict". That would trigger Geneva protections for civilian, and require prosecution of those accused of committing human rights violations. The Supreme Court of Chile held that Geneva did not apply to the actions of Pinochet. However they did consider that if there had been a conflict, that the obligations under Geneva would surpass domestic legislation. Actions taken by Hussein and regime members during times they described as "conflict" violated their obligation to protect civilians. If this court finds that Iraq was involved in an international conflict at any time those atrocities occurred, immunity should be waived due to Iraq''s treaty obligations to protect its own citizens.


Notes:

**1 All information presented in this answer was taken from a Memorandum for the Iraqi Special Tribunal prepared by Joseph MacAvoy and Emily Meyer in April 2005.

**2 Shobha Varughese George, Head-Of-State Immunity in the United State Courts: Still Confused After All These Years, 64 FORDHAM L. REV. 1051, 1055 (1995); Gilbert Sison, A King No More: The Impact of the Pinochet Decision on the Doctrine of Head of State Immunity, 78 WASH. U. L. Q. 1583, 1584 (2000).

**3 Convention on the Prevention and Punishment of the Crime of Genocide, Adopted by Resolution 260 (III) A of the U.N. General Assembly on December 9, 1948.

**4 Vienna Convention on Diplomatic Relations, Article 32, para. 1.

**5 Jamison G. White, Nowhere to Run, Nowhere to Hide: Augusto Pinochet, Universal Jurisdiction, The ICC, and a Wake-Up Call for Former Heads of State, 50 CASE W. RES. 127, 134 (1999).

**6 Id.

**7 Gilbert Sison, A King No More: The Impact of the Pinochet Decision on the Doctrine of Head of State Immunity, 78 WASH. U. L. Q. 1583, N.115 (2000).

Posted @ 9:27 AM | Experts Debate the Issues: The Dujail Trial