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EPIL

Heads of Governments and Other Senior Officials

Sir Arthur Watts

Subject(s):
Recognition of states — Heads of state and other senior officials — Immunity from jurisdiction, states — Act of state
Published under the auspices of the Max Planck Institute for Comparative Public Law and International Law under the direction of Rüdiger Wolfrum.

A.  Basic Concepts and Problems

The offices of Heads of State and Heads of the Governments of State[s] are notionally distinct. The former (typically King, Queen, or President) is the constitutional and titular ruler of the State; the latter (typically Prime Minister) is the head of the executive branch of the State’s government. But the two roles may be combined (as with the office of President of the United States). The nature, powers, style, and title of a State’s Head of Government are matters for the State to determine for itself.

It is more difficult to identify precisely to whom the concept of ‘senior official’ applies, especially as ‘official’ may refer to holders of (political) offices or to non-political civil servants. The International Court of Justice (ICJ) has referred to ‘holders of high-ranking office’, and some treaties refer to persons ‘of high rank’. Clear examples of such persons are Ministers of Foreign Affairs (Arrest Warrant of 11 April 2002 Case [Democratic Republic of the Congo v Belgium] para. 51; Arrest Warrant Case [Democratic Republic of the Congo v Belgium]); Ministers of Defence (Nuclear Tests Case [Australia v France] [Merits] paras 40–41; Nuclear Tests Cases); and possibly Ministers of Justice (Armed Activities on the Territory of the Congo [Democratic Republic of the Congo v Rwanda] [Jurisdiction and Admissibility] para. 48; Armed Activities on the Territory of the Congo Cases).

It is in principle a matter for each State to determine who is its Head of Government or the holder of some other senior official State position. But for other States, questions of international recognition may also have to be taken into account.

The international legal position of senior State officials is often unclear. A few aspects of their position are now regulated by treaty, but it is still essentially a matter of customary international law. State practice relating to such persons is sparse. Useful guidance can sometimes be derived from the treatment accorded to Heads of State or ambassadors or the State itself, but there is no compelling analogy with their positions (Heads of Diplomatic Missions; Consuls; Immunity, Diplomatic; Analogy in International Law).

B.  International Functions, Attributes, and Powers of Senior State Officials

Unlike a Head of State, a Head of Government (and even less so other senior State officials) does not represent the international persona of the State. But short of that

it is a well-established rule of international law that the... Head of Government and the Minister for Foreign Affairs are deemed to represent the State merely by virtue of exercising their functions, including for the performance, on behalf of the said State, of unilateral acts having the force of international commitments. (Armed Activities [Congo v Rwanda] para. 46)

While Heads of Government and Foreign Ministers represent their State’s position internationally across the whole range of governmental activities, the internationally representative character of other senior officials is probably limited to their particular areas of responsibility.

So far as concerns Heads of Government and Foreign Ministers their position, in relation to the conclusion of treaties, is embodied in Art. 7 (2) of the Vienna Convention on the Law of Treaties (1969) (‘VCLT’; see also Treaties, Conclusion and Entry into Force). See also the parallel provision of Art. 67 (2) VCLT for bringing a treaty to an end (Treaties, Termination). See the entry on Heads of State for the meaning and effect of Art. 7 (2) VCLT in the light of Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening) (Merits) para. 265 (Land and Maritime Boundary between Cameroon and Nigeria Case [Cameroon v Nigeria]).

Official statements by a senior State official (even at a press conference) may create international legal obligations binding on his State (Nuclear Tests Case paras 40–41 [statement by the Minister of Defence]; Armed Activities [Congo v Rwanda] para. 48 [statement by the Minister of Justice]). But off-the-cuff comments at a press conference will not normally produce the same binding effect (Frontier Dispute [Burkina Faso/Republic of Mali] [1986] ICJ Rep 554 paras 36, 39–40; Frontier Dispute Case [Burkina Faso/Republic of Mali]).

C.  International Accountability of Senior State Officials

A senior State official’s conduct when acting in an official capacity is attributable to the State itself. If it involves a breach of the State’s international obligations, the State bears international responsibility for it (State Responsibility).

Jurisdictional immunities enjoyed by senior State officials are of no avail before an international criminal court or tribunal with jurisdiction over serious international offences such as war crimes, crimes against humanity, and genocide (International Criminal Courts and Tribunals, Complementarity and Jurisdiction; see also Individual Criminal Responsibility). ‘[A]n incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction’ (Arrest Warrant Case para. 61).

10  Art. 7 Charter of the International Military Tribunal at Nuremberg (1945) (International Military Tribunals) stipulated that ‘[t]he official position of defendants,... as... responsible officials in Government Departments’ did not free them from responsibility or mitigate punishment (see also Principle III of the Nuremberg Principles adopted by the International Law Commission [ILC] in 1950). This Nuremberg provision has subsequently been reflected in Art. 6 Charter of the International Military Tribunal for the Far East (1946), Art. 7 Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY) (1993), Art 6 Statute of the International Criminal Tribunal for Rwanda (ICTR) (1994), and Art. 27 (1) Rome Statute of the International Criminal Court (ICC) (1998).

D.  International Immunities and Privileges of Senior State Officials

11  No multilateral treaty deals directly and in general with the position of senior State officials, although some do so indirectly and in particular respects—but often simply by cross-referring in general, using unspecific terms, to the facilities, privileges and immunities accorded by international law (State Immunity). The subject has recently been included within the work programme of the ILC (see UN ILC ‘Report of the International Law Commission on the Work of its Sixty-Third Session’ paras 267–311).

12  Consequently, and despite the sparsity of relevant State practice, their position is for the most part a matter of customary international law. Nevertheless, ‘in international law it is firmly established that... certain holders of high-ranking office in a State, such as the... Head of Government and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal’ (Arrest Warrant Case para. 51). The ICJ (which was concerned with the position of a Minister for Foreign Affairs) continued that ‘[i]n customary international law, the immunities accorded to Ministers for Foreign Affairs are not granted for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective States’ (at para. 53) and concluded

that the functions of a Minister for Foreign Affairs are such that, throughout the duration of his or her office, he or she when abroad enjoys full immunity from criminal jurisdiction and inviolability. That immunity and that inviolability protect the individual concerned against any act of authority of another State which would hinder him or her in the performance of his or her duties.... In this respect, no distinction can be drawn between acts performed by a Minister for Foreign Affairs in an ‘official’ capacity, and those claimed to have been performed in a ‘private capacity’, or, for that matter, between acts performed before the person concerned assumed office as Minister for Foreign Affairs and acts committed during the period of office. (at paras 54–55)

1.  Protection and Inviolability

13  A State which a foreign senior State official visits must protect the person of the visitor, and punish those who cause him injury. Foreign senior State officials are, by Art. 1 (a) and (b) Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents (1973), protected against certain specific serious acts against their person. Some treaties acknowledge the entitlement of senior State officials to special treatment, including protection and inviolability as well as other immunities and privileges, but identify the appropriate level of treatment by an unspecific reference to that which is accorded by international law, see, eg. Art 21 (2) Convention on Special Missions (1969) (Immunities, Special Missions; Special Missions).

14  A senior State official’s person, residence, and property in the State being visited are inviolable: officials of that State may not inspect his person or property, or enter the premises occupied by him. The issue and international circulation of an arrest warrant against a Minister of Foreign Affairs infringes the Minister’s inviolability (Arrest Warrant Case para. 71).

2.  Criminal, Civil and Administrative Jurisdiction

15  Senior State officials are absolutely immune from criminal proceedings in foreign courts, see Arrest Warrant Case paras 70–71 (see also Criminal Jurisdiction of States under International Law; Jurisdiction of States). See also to the same effect the decision of the Belgian Cour de Cassation in Re Sharon and Yaron (2003), affirming the immunity of Prime Minister Sharon of Israel. In the Arrest Warrant Case, the ICJ, having considered State practice, was

unable to deduce from this practice that there exists under customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs, where they are suspected of having committed war crimes or crimes against humanity. (at para. 58)

The European Court of Human Rights (ECtHR) similarly applied the principle of immunity to civil proceedings alleging violations of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) arising out of an alleged crime under international law: Al-Adsani v United Kingdom (at paras 61–66; Al-Adsani Case; see also Torture, Prohibition of).

16  The extent of a senior State official’s immunity from a foreign State’s civil and administrative jurisdiction is controversial. Conduct performed in an official capacity probably attracts immunity, although where the conduct is equated with that of the State, questions of immunity may be determined on the basis of rules on State immunity (see also United Nations Convention on Jurisdictional Immunities of States and Their Property [2004]). In the United Kingdom, the House of Lords, following the approach adopted in the Al Adsani Case, applied the principle of immunity in the context of civil proceedings relating to allegations of torture against a State and some of its officials (Jones v Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya [the Kingdom of Saudi Arabia]). In relation to conduct performed in a private or commercial capacity, a senior State official is probably entitled to at least the degree of immunity to which an ambassador is entitled under Art. 31Vienna Convention on Diplomatic Relations (1961), namely full immunity subject only to certain very limited exceptions of peculiarly local or personal significance.

3.  Former Senior State Officials

17  In the Arrest Warrant Case the ICJ noted that:

after a person ceases to hold the office of Minister for Foreign Affairs, he or she will no longer enjoy all of the immunities accorded by international law in other States. Provided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity. (at para. 61)

18  So far as concerns official acts committed during the senior State official’s period of office but in a public capacity, there is probably a presumption that his immunity continues to subsist since his official conduct—like a diplomat’s—is beyond the purview of the courts of foreign States. In view of the pronouncements made in the Arrest Warrant Case and Al-Adsani Case it may be that under customary international law senior State officials who have left office nevertheless retain immunity from criminal jurisdiction even in respect of serious international offences allegedly committed during their period of office in the course of their official conduct (see also the position regarding former Heads of State). A US court has applied the principle of immunity in civil proceedings brought against a former foreign government official alleging war crimes and extra judicial killing (Matar v Dichter). However, the case is one of a growing list of US cases in which the courts have addressed the question of the legal basis of the immunity of foreign officials and the issue is, as yet, far from settled.

E.  Assessment

19  The position of senior State officials in contemporary international law is evolving rapidly. Although much of the relevant law is still customary international law, it is now clear that the underlying basis for their special treatment is their functional need for it. The replacement of absolute immunity by qualified immunity in the case of States, and the growing awareness of the possibilities of overriding immunity by invoking rules of ius cogens and human rights considerations, have led to increased questioning of the extent to which senior State officials are entitled to immunity or other special treatment. The trend is probably in the direction of restricting the immunity of senior State officials from civil jurisdiction to the extent possible.

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