It's Good to Be the King: Prosecuting Heads of State and Former Heads of State under International Law

When Adolf Hitler and Benito Mussolini died prior to capture at the end of World War II, a grave travesty occurred. The international community was denied the long-awaited opportunity of bringing these alleged perpetrators of heinous crimes to justice. If either had survived, we can only project that they would have stood trial with the other Nuremberg defendants under the clear language of the Charter of the International Military Tribunal at Nuremberg? On an intellectual level we know that each of the other twenty-two Nuremberg defendants saw his day in court and suffered the penalties pronounced against him. Yet, not one of these individuals was considered a sitting or former head of state. And, despite the recent Pinochet ruling suggesting that former heads of state are not immune from punishment for gross violations of human rights committed while serving as head of state (the "Pinochet precedent"), we must on some level admit that the international community has been reluctant to bring to trial-not merely indict-any sitting or former head of state.The most recent events in Yugoslavia have thus far merely confirmed this trend. While the international community understandably welcomes the transition to democracy in Yugoslavia, little has been said regarding the arrest and prosecution of the now former President, Slobodan Milosevic. Due to the delicate maneuvering that typically follows a transition to democracy, most countries focus more on the gain achieved by deposing Milosevic and far less on the negative implications for the rule of law if Milosevic ultimately escapes trial. Even before Milosevic was removed, a United Nations human rights representative indicated that perhaps the granting of an amnesty or immunity from prosecution would be a worthy exchange were Milosevic to leave office. Fortunately, the situation never required the "brokering" of immunity. Even without consideration of Milosevic, the list of potential defendants is long, current and demands an accounting. For example, previously, there was Pol Pot,9 and now all but two prominent Khmer Rouge figures remain free in Cambodia. In addition, there are Idi Amin, Mengistu Haile Mariam, Jean Claude (aby Doe) Duvalier, Moammar Gadhafi and Alfredo Stroessner. Reliable information indicates the present residence of each of these individuals, yet, only Hissene Habre, the former Chadian dictator, and most recently Indonesia's Suharto, have seemingly been affected by the Pinochet precedent. Thus, while the words exist that permit-and, at times demand -- former and sitting heads of state be prosecuted and possibly punished for their atrocities, the actions of the world community have fallen short of these proclamations.Perhaps this failure is a testament to the unique nature of international "law." International law is a limited system constrained on one end by voluntary compliance of consenting sovereign states and on the other by the political deadlock of the moment. Until some radical change occurs in international law or the politics of the moment, it is still good to be the king!