Let the Responsible be Responsible: Judicial Oversight and Over-Optimism in the Arrest Warrant Case and the Fall of the Head of State Immunity Doctrine in International And Domestic Courts

I. INTRODUCTIONIn October 2013, the African Union ("AU") requested the International Criminal Court ("ICC") to defer its prosecution of Kenyan President Uhuru Kenyatta for crimes against humanity committed in his country.1 The AU purported that any sitting African head of state should be entitled to immunity, and Kenya threatened to withdraw from the jurisdiction of the ICC if the court did not answer AU's request.2Kenya's request rekindled the debate over whether heads of state have immunity for criminal conduct. The International Court of Justice ("ICJ") answered this question in the Arrest Warrant of 11 April 2000 3 case ("Arrest Warrant"), where it held that the Democratic Republic of Congo's incumbent Minister of Foreign Affairs had immunity from criminal prosecution.4 The ICJ may not have expected that its holding would open the floodgates to claims for immunity, especially since the court opined that head of state immunity would be unavailable in certain situations.5 Nevertheless, this decision has had serious implications on the ability of victims of human rights violations to seek justice.The ICJ overvalued the immunity doctrine by unjustifiably expanding it to ministers of foreign affairs. It also failed to fully appreciate the ability of international courts to remove head of state immunity. The adventurousness and optimism of the court are not consistent with fundamental international law principles, and subsequent international and domestic jurisprudence have challenged the Arrest Warrant's credibility and called for the abrogation of the head of state immunity doctrine.6This article argues that international and domestic courts should not recognize head of state immunity for jus cogens crimes. Section II outlines the various immunity categories, namely state immunity, functional immunity, and personal immunity. It also discusses the correlations between these doctrines and addresses the possibility of invoking a jus cogens exception to immunity. Section III evaluates the reasoning of the Arrest Warrant case and the dictum relating to the circumstances under which head of state immunity is not applicable. It alleges that the ICJ misconceived the law when engaging in this analysis in three ways.First, the court lacked a basis to extend head of state immunity to ministers of foreign affairs because it erroneously equated the functions of heads of state with those of ministers of foreign affairs without due regard to customary international law. It also failed to recognize that any immunity domestic courts have granted to ministers of foreign affairs has been based on comity rather than a positive obligation.Second, the international and domestic jurisprudence after Arrest Warrant suggests that head of state immunity doctrine has eroded. Moreover, the modern meaning of "sovereignty" has redefined a head of state's functions, shifting it toward a duty to safeguard the interests of the State's citizens. Under this framework, officials who inflicted harm to their citizens, and thereby failed to effectively perform their functions, cannot benefit from immunity.7 Furthermore, in recognizing head of state immunity for jus cogens crimes, States are in violation of article 41(2) of the International Law Commission's Draft Articles on State Responsibility for Internationally Wrongful Acts ("ILC Draft Articles on State Responsibility"), which prohibits States from recognizing serious breaches of peremptory norms as lawful acts.8Finally, in affirming head of state immunity, the ICJ undermines the efficacy of prosecuting individuals for serious violations of international criminal law. While international criminal courts, such as the International Criminal Tribunal for Former Yugoslavia ("ICTY"), the International Criminal Tribunal for Rwanda ("ICTR"), the Special Court for Sierra Leone ("SCSL"), and the International Criminal Court ("ICC"), do not recognize head of state immunity, heads of state may still invoke this immunity for offences over which the courts above lack jurisdiction, such as when the offences were committed beyond the territorial jurisdiction limits of the courts. …