This House supports head of state immunity

International diplomacy involves visits by both diplomats and government figures to other states. This can even include states where relations are tense or even hostile. India and Pakistan, who have a very tense relationship and share one of the most fortified borders in the world, the line of control that divides Kashmir, have embassies in each other. Even throughout the Cold War, the USA and Soviet Union had a full and normal diplomatic relations.

Just as diplomatic immunity prevents politically motivated arrests of diplomats, head of state immunity is necessary to “grease the wheels” of international diplomacy to allow international summits to take place without campaigns for the arrest and trial before domestic courts of foreign politicians.

If a head of state were to be arrested for trial before a foreign domestic court, it would cause immense damage to diplomatic relations between those two countries, Russia recently got into a row over the arrest of one of its diplomats in the Netherlands. The diplomat was quickly released but Russia still demanded the ‘guilty parties’ be punished.[1] The reaction to the arrest of a head of state or government would be much greater and would likely mean the breaking of diplomatic ties. Leaders would be much less willing to visit the country where the arrest occurred in the future for fear it would happen to them and would damage the world diplomatic system by challenging the idea of diplomatic immunity.

[1] ‘Moscow not satisfied with 'sorry' after diplomat arrest’, DutchNews.nl, 17 October 2013, http://www.dutchnews.nl/news/archives/2013/10/moscow_not_satisfied_with_sorr.php

Whatever the justification, impunity is unacceptable. It is a key part of the rule of law that everyone is subject to the law. To grant individuals impunity for whatever reason is unacceptable.

Even if diplomatic immunity is accepted, diplomats are less likely in their role to commit international crimes that a head of state or government is because diplomats do not have access to the coercive machinery that enable these crimes. Diplomatic relations can carry on very well without senior government figures being able to travel wherever they want to. Summits are a luxury not a necessity and most of the deals they make have been hammered out by the diplomats beforehand.

Heads of state and senior politicians are targets for political stunts. This could be seeking to get a political opponent locked up so as to benefit from the removal of an opponent. Alternatively it may be as part of a publicity stunt to highlight their own issue of concern or organisation. In both cases the trial does not need to convict as the figure being in a trial will be enough to damage them and provide publicity.

In 2009, following a request by supporters of Palestine, an arrest warrant was sought at Westminster magistrates’ court for the arrest of Tzipi Livni, who was Foreign Minister of Israel during Israel’s 2008-2009 invasion of the Gaza Strip, also known as Operation Cast Lead. At the time of the attempted arrest Livni was no longer in office but the action was clearly a stunt.

Livni was not arrested in the end, because she cancelled her trip to the UK, and the warrant was dropped by the Director of Public Prosecutions, Kier Starmer[1]. However, a needless diplomatic incident was still caused.

[1] Hastings, Rob, ‘DPP blocks bid to arrest Tzipi Livni for war crimes’, The Independent, 7 October 2011, http://www.independent.co.uk/news/uk/home-news/dpp-blocks-bid-to-arrest-tzipi-livni-for-war-crimes-2366583.html

Many of these so-called “stunts” may actually be legitimate accusations that deserve to be heard in a court. If an accusation is unfounded, charges will not be brought (or not confirmed at the ICC, for example), or a verdict of not guilty returned.

Just because a person is high profile does not mean that they are innocent of wrongdoing. In the Livni case she as Foreign Minister may have been the wrong target. A more appropriate one would be the Defense minister or Prime Minister but it is understandable that there should be an effort to make ministers accountable for military actions they initiate. 

Sometimes people will do bad things in order to achieve good and necessary results. For example, the Allied bombing campaigns in the Second World War would be highly likely to amount to a war crime under the Rome Statute if they were done today. They were indiscriminate, they targeted civilians, and additionally even at the time were recognised as having little military value. Instead the idea was to terrorise the civilian population.[1] Yet they were considered to be necessary as showing the allies were doing something to aid the Soviet Union. The same might be the case with the dropping of the atomic bomb on Hiroshima and Nagasaki, they clearly targeted civilians, yet if they helped end the war without a ground invasion of Japan then this war crime might have been for the greater good.[2]

Head of state immunity allows individuals to take unpopular and difficult decisions that are necessary for a greater good in government without fear of prosecution for their actions. We need our leaders to be able to take decisions based on the national interest, not based upon their concern for their life after office.

[1] Grayling, A.C., ‘Bombing civilians is not only immoral, it’s ineffective’, The Guardian, 27 March 2006, http://www.theguardian.com/commentisfree/2006/mar/27/comment.secondworldwar

[2] See the debatabase debate ‘This House believes that the use of atomic bombs against Hiroshima and Nagasaki was justified’

That’s equally an argument against international criminal law as head of state immunity. While there may be instances where the head of state or government has to take decisions that might be criminal for the greater good – for example ordering the abduction or assassination of a terrorist – these instances are rare and most of the time the courts will take into account the good as well as the bad. However there are equally times where it is good that someone fears prosecution, if they do it is a sign that what they are doing is wrong. Bombing of Germany could have ended when all military targets had been hit, it need not have involved incendiary bombing of civilian targets. In Japan there was a third option of accepting a conditional surrender – one that guaranteed the position of the Emperor, since the Allies ultimately agreed this anyway there would have been little loss.

International diplomacy involves visits by both diplomats and government figures to other states. This can even include states where relations are tense or even hostile. India and Pakistan, who have a very tense relationship and share one of the most fortified borders in the world, the line of control that divides Kashmir, have embassies in each other. Even throughout the Cold War, the USA and Soviet Union had a full and normal diplomatic relations.

Just as diplomatic immunity prevents politically motivated arrests of diplomats, head of state immunity is necessary to “grease the wheels” of international diplomacy to allow international summits to take place without campaigns for the arrest and trial before domestic courts of foreign politicians.

If a head of state were to be arrested for trial before a foreign domestic court, it would cause immense damage to diplomatic relations between those two countries, Russia recently got into a row over the arrest of one of its diplomats in the Netherlands. The diplomat was quickly released but Russia still demanded the ‘guilty parties’ be punished.[1] The reaction to the arrest of a head of state or government would be much greater and would likely mean the breaking of diplomatic ties. Leaders would be much less willing to visit the country where the arrest occurred in the future for fear it would happen to them and would damage the world diplomatic system by challenging the idea of diplomatic immunity.

[1] ‘Moscow not satisfied with 'sorry' after diplomat arrest’, DutchNews.nl, 17 October 2013, http://www.dutchnews.nl/news/archives/2013/10/moscow_not_satisfied_with_sorr.php

Whatever the justification, impunity is unacceptable. It is a key part of the rule of law that everyone is subject to the law. To grant individuals impunity for whatever reason is unacceptable.

Even if diplomatic immunity is accepted, diplomats are less likely in their role to commit international crimes that a head of state or government is because diplomats do not have access to the coercive machinery that enable these crimes. Diplomatic relations can carry on very well without senior government figures being able to travel wherever they want to. Summits are a luxury not a necessity and most of the deals they make have been hammered out by the diplomats beforehand.

Heads of state and senior politicians are targets for political stunts. This could be seeking to get a political opponent locked up so as to benefit from the removal of an opponent. Alternatively it may be as part of a publicity stunt to highlight their own issue of concern or organisation. In both cases the trial does not need to convict as the figure being in a trial will be enough to damage them and provide publicity.

In 2009, following a request by supporters of Palestine, an arrest warrant was sought at Westminster magistrates’ court for the arrest of Tzipi Livni, who was Foreign Minister of Israel during Israel’s 2008-2009 invasion of the Gaza Strip, also known as Operation Cast Lead. At the time of the attempted arrest Livni was no longer in office but the action was clearly a stunt.

Livni was not arrested in the end, because she cancelled her trip to the UK, and the warrant was dropped by the Director of Public Prosecutions, Kier Starmer[1]. However, a needless diplomatic incident was still caused.

[1] Hastings, Rob, ‘DPP blocks bid to arrest Tzipi Livni for war crimes’, The Independent, 7 October 2011, http://www.independent.co.uk/news/uk/home-news/dpp-blocks-bid-to-arrest-tzipi-livni-for-war-crimes-2366583.html

Many of these so-called “stunts” may actually be legitimate accusations that deserve to be heard in a court. If an accusation is unfounded, charges will not be brought (or not confirmed at the ICC, for example), or a verdict of not guilty returned.

Just because a person is high profile does not mean that they are innocent of wrongdoing. In the Livni case she as Foreign Minister may have been the wrong target. A more appropriate one would be the Defense minister or Prime Minister but it is understandable that there should be an effort to make ministers accountable for military actions they initiate. 

Sometimes people will do bad things in order to achieve good and necessary results. For example, the Allied bombing campaigns in the Second World War would be highly likely to amount to a war crime under the Rome Statute if they were done today. They were indiscriminate, they targeted civilians, and additionally even at the time were recognised as having little military value. Instead the idea was to terrorise the civilian population.[1] Yet they were considered to be necessary as showing the allies were doing something to aid the Soviet Union. The same might be the case with the dropping of the atomic bomb on Hiroshima and Nagasaki, they clearly targeted civilians, yet if they helped end the war without a ground invasion of Japan then this war crime might have been for the greater good.[2]

Head of state immunity allows individuals to take unpopular and difficult decisions that are necessary for a greater good in government without fear of prosecution for their actions. We need our leaders to be able to take decisions based on the national interest, not based upon their concern for their life after office.

[1] Grayling, A.C., ‘Bombing civilians is not only immoral, it’s ineffective’, The Guardian, 27 March 2006, http://www.theguardian.com/commentisfree/2006/mar/27/comment.secondworldwar

[2] See the debatabase debate ‘This House believes that the use of atomic bombs against Hiroshima and Nagasaki was justified’

That’s equally an argument against international criminal law as head of state immunity. While there may be instances where the head of state or government has to take decisions that might be criminal for the greater good – for example ordering the abduction or assassination of a terrorist – these instances are rare and most of the time the courts will take into account the good as well as the bad. However there are equally times where it is good that someone fears prosecution, if they do it is a sign that what they are doing is wrong. Bombing of Germany could have ended when all military targets had been hit, it need not have involved incendiary bombing of civilian targets. In Japan there was a third option of accepting a conditional surrender – one that guaranteed the position of the Emperor, since the Allies ultimately agreed this anyway there would have been little loss.

A key principle of the rule of law is that everyone is subject to the law – even the agents of states[1]. It must apply equally to the most as well as the least powerful.

This must apply to international criminal law as well as the domestic criminal law. It would be unjustifiable for one individual to be able to face prosecution as a private citizen for genocide, but not a head of state who has much greater capacity to engage in such acts. It effectively would allow genocide, which is prohibited by a convention the vast majority of states have signed and ratified, as an expression of national sovereignty.

[1] ‘What is the rule of law?’, United Nations Rule of Law, http://www.unrol.org/article.aspx?article_id=3

Even though it does effectively create impunity, this is not a unique phenomenon. Decisions on who to prosecute will always happen, and some form of bias against prosecuting powerful people is to some extent inevitable. So in practice not everyone is equal before the law.

The ICC specifically builds in a way of deferring prosecutions if needed in Article 16 of the Rome Statute. This shows that the ICC accepts the need to postpone cases, possibly indefinitely. The ICC therefore in practice accepts it cannot prosecute in every case where there may be a case to answer.

The prosecution of high ranking government officials is part of the Nuremberg precedent that international criminal law largely dates back to. Hideki Tojo, the Prime Minister of Imperial Japan in the Second World War, was tried, convicted and executed as part of the Tokyo trials for Japan’s acts of aggression in going to war. Karl Doenitz was prosecuted despite having briefly been Germany’s head of state; that position did not nullify the crimes he carried out as commander of Germany’s unrestricted submarine warfare campaign.  

Following that, the ICTY tried Slobodan Milosevic, who died before the trial finished, and the Special Court for Sierra Leone convicted Charles Taylor.

It is nothing new that international criminals can be prosecuted. While leaders have, and often still are, able to prevent themselves from being tied in their own country while they are in charge this should not apply the world over. 

No head of state was successfully prosecuted by a partially international court until Charles Taylor was convicted by the hybrid Special Court for Sierra Leone, the first to go on trial was in 1994. None of the post WW2 Allied trials featured a significant head of state; Hitler was dead and the entire Japanese imperial family was not charged, including emperor Hirohito, who continued serving as Japanese head of state until his death in 1989.

The charges against Doenitz all pertained to his actions prior to him taking the leadership of Germany so they cannot be said to be actions taken in the role of head of state. 

International criminal law, like any other form of criminal law, is supposed to be a deterrent. By giving a class of individuals impunity, these people cannot be deterred by International Criminal Law from committing some of the worst crimes known to humanity, including genocide. It is plain that many people who reach the heights of political power will use any method to remain in power – thus the resort to intimidation where it can be used to affect the vote, or in the case of Silvio Berlusconi the attempt to put in place an immunity law to prevent himself from being prosecuted for corruption.[1] Immunity will enable both large and small criminal acts, neither of which should be allowed.

[1] Kennedy, Duncan, ‘Berlusconi immunity law overruled’, BBC News, 8 October 2009, http://news.bbc.co.uk/1/hi/8295716.stm

There is no evidence as a whole to suggest international criminal law as a whole is a deterrent. Risk of prosecution or no risk of prosecution, there will always be leaders who commit horrible acts. Those who reach leadership positions where they can carry out acts that are considered to be heinous enough that they are prosecuted internationally clearly don’t believe that they will ever be brought to trial so likely consider whether or not they have immunity to be irrelevant.