The United Nations’ Dag Hammarskjöld Library has announced its most checked-out book of 2015. Maybe something on the UN, you say? Maybe a breezy read on climate change? Or perhaps the latest treatise on the refugee crisis? Okay, maybe diplomats and staff go to the UN’s library for less serious matters and the most popular book is E L James’ Fifty Shades of Grey or the latest release of Stephen Covery’s Seven Habits of Highly Effective People (wouldn’t that be great!). But no. The most checked-out book was entitled Immunity of Heads of State and State Officials for International Crimes. According to Dylan Matthews of Vox,
The book in question isn’t a UN document — it’s a doctoral thesis from the University of Lucerne by Ramona Pedretti, pursuing the question of when heads of state and other government officials can be charged in foreign courts. Generally, she explains, there are two forms of immunity in international law from which heads of state can benefit.
“Immunity ratione personae prevents incumbent Heads of State from being subjected to foreign criminal jurisdiction,” Pedretti writes. “In contrast, immunity ratione materiae protects official acts, i.e. acts performed in an official capacity on behalf of the State, from scrutiny by foreign courts.”
She concludes that immunity ratione personae is absolute, and thus that domestic courts in one country can’t indict the sitting leader of another nation, whereas ratione materiae can be invalidated for defendants who’ve left office — as happened with the arrests of the Nazi fugitive Adolf Eichmann by Israel and Chilean dictator Augusto Pinochet by Spain. Basically, Pedretti is arguing that incumbent heads of state can’t be charged and prosecuted by a foreign court, whereas past heads of state can.
This isn’t exactly great news for proponents of international justice and, in particular, the principle of universal jurisdiction.
Weirdly, the UN Library sort of bragged about the book on Twitter – despite the institution’s mission to, you know, fight global impunity. As Hayes Brown rightly chirped: “…Guys. Why would you brag about this [-] this is not good.” There is a silver lining, though. Clearly diplomats are taking international criminal justice seriously and evidently some (rightfully, we should add) see it as threatening. Like it or not, the possibility of heads of state being prosecuted for international crimes is indelibly part of the world of diplomacy.
Now, how badly do you want the catalog of people who checked out the book – and the breakdown of states they work for?
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As good as Pedretti’s thesis may be, the shortcoming of the quoted text, which I understand to be the crux of the thesis, is that it is limited to immunities before national criminal jurisdictions. Moreover, while immunity ratione personae may be absolute, this is found within the confines of customary international law. Peremptory norms trump customary international law. In this specific case of immunity for heads of state alleged to be responsible for international crimes, the prohibition against genocide and other international crimes such as torture are peremptory norms, which no state can derogate from, unless a higher/other norm supersedes. The obligation that states have when any person against whom an arrest warrant for international crimes issued by an international tribunal or court, regardless of official capacity, while that person is in the state’s territory, is to extradite, prosecute or arguably, transfer that person to the jurisdiction that issued the arrest warrant to face trial.
Reblogged this on talkingtomyself2015.