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Pinochet’s Legacy Reassessed

Published online by Cambridge University Press:  20 January 2017

Ingrid Wuerth*
Affiliation:
Vanderbilt University

Extract

One of the most dramatic moments in twentieth-century international law transpired in 1999 when the House of Lords denied immunity to Augusto Pinochet, the former dictator of Chile. The “breathtaking” judgment cleared the way for the possible prosecution of Pinochet in Spanish national courts on charges of torture committed during his rule. By limiting immunity, the House of Lords’ rulings turned the world “upside down” and ushered in a new era of accountability for egregious violations of human rights. At least that is the prevailing narrative, one that pits accountability against the international law of immunity and sees Pinochet as a watershed moment in that struggle.

Type
Research Article
Copyright
Copyright © American Society of International Law 2012

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References

1 Regina v. Bow St. Metro. Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3), [2000] 1 A.C. 147 (H.L. Mar. 24, 1999) [hereinafter Pinochet III]. Earlier proceedings in this case are Pinochet I, see infra note 28 and accompanying text, and Pinochet II, see infra note 29 and accompanying text. Unless indicated otherwise, the Pinochet cast referred to in the main text is either Pinochet III or the entire line of cases.

2 Falk, Richard A., Assessing the Pinochet litigation: Whither Universal Jurisdiction?, in Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law 97 (Macedo, Stephen ed., 2004 Google Scholar).

3 Dorfman, Ariel, Exorcising Terror: The Incredible Unending Trial of General Augusto Pinochet 81 (2002)Google Scholar.

4 See, e.g., Sands, Philippe, Lawless World: America and the Making and Breaking of Global Rules 23 (2005)Google Scholar; Chinkin, Christine M., Case Report: Regina v. Bow Street Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 3), 93 AJIL 703, 711 (1999)CrossRefGoogle Scholar; Bianchi, Andrea, Immunity Versus Human Rights: The Pinochet Case, 10 Eur. J. Int’l L. 237, 237-39 (1999)CrossRefGoogle Scholar; see also Bradley, Curtis A. & Heifer, Laurence R., International law and the U.S. Common law of Foreign Official Immunity, 2010 Sup. Ct. Rev. 213, 238-40 (2011 Google Scholar) (describing the development of immunity in criminal cases and terming Pinochet a “watershed”).

5 Jurisdictional Immunities of the State (Ger. v. It.; Greece Intervening), para. 87 (Int’l Ct. Justice Feb. 3, 2012) (rejecting Pinochet as irrelevant); Jones v. Ministry of Interior of the Kingdom of Saudi Arabia, [2006] UKHL 26, paras. 89-93, [2007] 1 A.C. 270 (H.L.) (appeal taken from Eng.) (Lord Hoffmann) (distinguishing Pinochet) (reported by Steinerte, Elina & Wallace, Rebecca at 100 AJIL 901 (2006))Google Scholar; Fang v. Jiang, [2007] NZAR420, para. 63 (HC) (N.Z.) (same); Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002ICJ REP. 3, paras. 56-59 (Feb. 14) (reported by Alexander Orakhelashvili at 96 AJIL 677 (2002)) (same).

6 See, e.g., Ferrini v. Federal Republic of Germany, Cass., sez. plen., 11 marzo 2004, n.5044, 87 Rivista di diritto internazionale [RDI] 539 (2004), 128ILR 658 (reported by Bianchi, Andrea at 99 AJIL 242 (2005))CrossRefGoogle Scholar; Prefecture of Voiotia v. Federal Republic of Germany, Case No. 11/2000 (Hellenic Sup. Ct. 2000) (reported by Gavouneli, Maria & Bantekas, Ilias at 95 AJIL 198 (2001))CrossRefGoogle Scholar.

7 Functional immunity, or immunity ratione materiae, is held by former and sitting lower-level officials. It protects their official, but not private, conduct. Status immunity, or immunity ratione personae (personal immunity), protects sitting heads of state and a small group of other high-level officials from suit based on their private and official conduct, but only while they hold office. See infra text accompanying notes 38-41.

8 See, e.g., Stephens, Beth, Abusing the Authority of the State: Denying Foreign Official Immunity for Egregious Human Rights Abuses, 44 Vand. J. Transnat’l L. 1163, 1178 (2011)Google Scholar; Akande, Dapo & Shah, Sangeeta, Immunities of State Official, International Crimes, and Foreign Domestic Courts, 21 Eur. J. Int’l L. 815, 816 (2010)CrossRefGoogle Scholar; Wright, Jane, Retribution but No Recompense: A Critique of the Torturer’s Immunity from Civil Suit, 30 Oxford J. Legal Stud. 143, 144 (2010)CrossRefGoogle Scholar; Aceves, William J., Liberalism and International Legal Scholarship: The Pinochet Case and the Move Towarda Universal System of Transnational Law Litigation, 41 Harv. Int’l L.J. 129, 130 (2000)Google Scholar; see abo Nollkaemper, André, Internationally Wrongful Acts in Domestic Courts, 101 AJIL 760, 761-62, 795-97 (2007 Google Scholar) (emphasizing the importance of foreign national courts for enforcing international law); Attanasio, John B., Rapporteur’s Overview and Conclusions: Of Sovereignty, Globalization, and Courts, in International Law Decisions in National Courts 373, 383 (Franck, Thomas M. & Fox, Gregory H. eds., 1996)Google Scholar (same).

9 This article uses “human rights exception” as a general term referring to denials of functional immunity for alleged violations of any jus cogens norms, international criminal law, or human rights law. It includes arguments that conduct violating these norms cannot be characterized as official for immunity purposes. The article does not consider other potential reasons for denying immunity ratione materiae, such as conduct that allegedly takes place in the forum state. See Khurts Bat v. Investigating Judge of the German Federal Court, [2011] EWHC 2029 (Admin) (July 29, 2011) (QB), available at http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/khurts-bat-v-federal-court-germany.pdf.

10 See, e.g., Cassese, Antonio, International Criminal Law 305–08 (2d ed. 2008)Google Scholar; Akande & Shah, supra note 8, at 839; Foakes, Joanne, Immunity for International Crimes? Developments in the Law on Prosecuting Heads of State in Foreign Courts 2, 14 (2011)Google Scholar, at http://www.chathamhouse.org/publications/papers/view/179865; Keitner, Chimène I., Foreign Official Immunity and the “Baseline” Problem, 80 Fordham L. Rev. 605, 607 (2011)Google Scholar; Stephens, supra note 8, at 1178; Wirth, Steffen, Immunity for Core Crimes? The ICJ’s Judgment in the Congo v. Belgium Case, 13 Eur. J. Int’l L. 877, 888-91 (2002)CrossRefGoogle Scholar; see also Fox, Hazel, The Law of State Immunity 695 (2d ed. 2008)Google Scholar; cf. Bradley & Helfer, supra note 4, at 240, 255 (arguing that the law of functional immunity is in flux and that the evidence suggests that an exception may be developing in criminal cases alleging jus cogens violations). Reports issued by the International Law Commission (ILC) have been guarded. While commenting that “it is increasingly argued in the legal literature that immunity ratione materiae is not applicable in respect of crimes under international law,” the secretariat’s report notes “uncertainty” about functional immunity based on its survey of cases. International Law Commission Secretariat, Immunity of State Officials from Foreign Criminal Jurisdiction, para. 189, UN Doc. A/CN.4/596 (Mar. 31, 2008); see also Roman Anatolevich Kolodkin (Special Rapporteur), Second Report on Immunity of State Officials from Foreign Criminal Jurisdiction, para. 90, UN Doc. A/CN.4/631 (June 10, 2010) (concluding that customary international law does not include a human rights exception to immunity ratione materiae in criminal cases).

11 Restatement (Third) of the Foreign Relations Law of the United States §102(2) (1987).

12 This article does not address diplomatic and consular immunity, or the immunities of international organizations and their officers and employees. Treaties, rather than customary international law, govern the first two types of immunity and some aspects of the third. Vienna Convention on Consular Relations, Apr. 24, 1963, 21 UST 77, 596 UNTS 261 ; Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 UST 3227, 500 UNTS 95; Convention on the Privileges and Immunities of the Specialized Agencies, Nov. 21, 1947, Art. V, sec. 16, 33 UNTS 261. It also does not address special-mission immunity, see Convention on Special Missions, opened for signature Dec. 8, 1969, 1400 UNTS 231, amnesties, or issues that arise when governments seek to prosecute or hold liable their own nationals. See generally Sadat, Leila Nadya, Exile, Amnesty and International Law, 81 Notre Dame L. Rev. 955 (2006 Google Scholar).

13 See infra text accompanying notes 148-76.

14 See infra text accompanying notes 113-25, 134.

15 See Roberts, Anthea Elizabeth, Traditional and Modern Approaches to Customary International Law: A Reconciliation, 95 AJIL 757, 758 (2001)CrossRefGoogle Scholar; Bradley, Curtis A. & Goldsmith, Jack L., Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815, 838-42 (1997 Google Scholar).

16 See infra text accompanying notes 237-49.

17 Koh, Harold Hongju, Foreign Official Immunity after Samantar: A United States Government Perspective, 44 Vand. J. Transnat’l L. 1141, 1152 (2011)Google Scholar.

18 See infra text accompanying notes 126-93.

19 See Report of the International Law Commission on the Work of Its Sixty-Third Session, UN GAOR, 66th Sess., para. 8, UN Doc. A/C.6/66/L.26 (Nov. 8, 2011) (draft resolution by the Sixth Committee). A special rapporteur of the ILC has written three reports on this topic. Roman Anatolevich Kolodkin (Special Rapporteur), Preliminary Report on Immunity of State Officials from Foreign Criminal Jurisdiction, UN Doc. A/CN.4/601 (May 29, 2008); Second Report on Immunity of State Officials from Foreign Criminal Jurisdiction, supra note 10; Roman Anatolevich Kolodkin (Special Rapporteur), Third Report on Immunity of State Officials from Foreign Criminal Jurisdiction, UN Doc. A/CN .4/646 (May 24, 2011 ) ; Immunity of State Officials from Foreign Criminal Jurisdiction, supra note 10.

20 Lenhoff, Arthur, Reciprocity: The Legal Aspect of a Perennial Idea, 49 Nw. U. L. Rev. 619, 623-25 (1954)Google Scholar; Donoghue, Joan E., Taking the “Sovereign “ Out of the Foreign Sovereign Immunities Act: A Functional Approach to the Commercial Activity Exception, 17 Yale J. Int’l L. 489, 531-35 (1992)Google Scholar; Bellinger, John B. III, The Dog that Caught the Car: Observations on the Past, Present, and Future Approaches of the office of the Legal Adviser to Official Act Immunities, 44 Vand. J. Transnat’l L. 819, 829, 833-34 (2011)Google Scholar; cf. Yang, Xiaodong, State Immunity in International Law 5657 (2012)Google Scholar (questioning reciprocity).

21 Rosalyn Higgins, Problems & Process: International Law and How We Use It 78-79 (1994).

22 See Stephens, Beth, The Modem Common Law of Foreign Official Immunity, 79 Fordham L. Rev. 2669, 2670, 2673 (2011)Google Scholar; Van Alebeek, Rosanne, The Immunity of States and their Officials in International Criminal Law and International Human Rights Law 418–26 (2010)Google Scholar; Caplan, Lee M., State Immunity, Human Rights, and Jus Cogens; A Critique of the Normative Hierarchy Theory, 97 AJIL 741, 742-43 (2003)Google Scholar; Bröhmer, Jürgen, State Immunity and the Violation of Human Rights (1997)Google Scholar.

23 Akande & Shah, supra note 8, at 815-16; Wright, supra note 8, at 145-47; Attanasio, supra note 8, at 383.

24 Pinochet III, supra note 1.

25 See Byers, Michael, The Law and Politics of the Pinochet Case, 10 Duke J. Comp. & Int’l L. 415, 416 (2000 Google Scholar). Pinochet died in Chile in 2006.

26 Regina v. Bartle & Commissioner of Police, exparte Augusto Pinochet, [1998] Q.B. Div’l Ct. (Eng.), 38 Ilm 68 (1999).

27 The British government may have favored immunity but believed that the courts would rule in favor of Chile and Pinochet, making it unnecessary to take a position. See Byers, supra note 25, at 426.

28 Regina v. Bow St. Metro. Stipendiary|Magistrate, ex parte Pinochet Ugarte (No. 1), [2000] 1 A.C. 61 (H.L. Nov. 25, 1998) (hereinafter Pinochet I).

29 Regina v. Bow St. Metro. Magistrate, Stipendiary, exparte Pinochet Ugarte (No. 2), [2000] 1 A.C. 119 (H.L. Jan. 15, 1999)Google Scholar (hereinafter Pinochet II).

30 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 UNTS 113 [hereinafter Convention Against Torture]; see Pinochet HI, supra note 1, at 224-40 (Lord Hope of Craighead). This limitation excluded most of the allegations against Pinochet, which arose from his conduct in the 1970s. Id. at 225-41. Lord Millert disagreed on this point, arguing that torture was extraditable offense even before 1988. Id. at 276 (Lord Millett).

31 Pinochet III, supra note 1.

32 See Naomi Roht-Arriaza, The Pinochet Effect: Transnational Justice in the Age of Human Rights (2005); Roger Burbach, the Pinochet Affair: State Terrorism and Global Justice (2003).

33 11 U.S. (7 Cranch) 116 (1812); see Fox, supra note 10, at 201-06 (tracing early law of immunity).

34 Fox, supra note 10, at 206-18.

35 See Theodore R. Giuttari, The American Law of Sovereign Immunity: an Analysis of Legal Interpretation 63-142 (1970); Letter from Jack B. Tate, Acting Legal Adviser, to Philip B. Perlman, Acting Attorney General (May 19, 1952), reprinted in 26 Dep’t State Bull. 969, 984 (1952).

36 Democratic Republic of the Congo v. F.G. Hemisphere Assoc, [2011] HKCFAR 41, para. 211 (H.K.) (reproducing a letter from the Office of the Commissioner of the Ministry of Foreign Affairs in the Hong Kong Special Administrative Region stating China’s adherence to the principle of absolute immunity).

37 Fox, supra note 10, at 235-36.

38 Wickremasinghe, Chanaka, Immunities Enjoyed by Officials of States and International Organizations, in International Law 380, 392–96Google Scholar (Malcolm D. Evans ed., 3d ed. 2010); Arrest Warrant of 11 April 2000, supra note 5, paras. 58-61.

39 Malcolm N. Shaw, International Law 738 (6th ed. 2008).

40 Pinochet III, supra note 1, at 192 (Lord Browne-Wilkinson).

41 Id. at 192; Arrest Warrant of 11 April 2000, supra note 5, para. 61; Koh, supra note 17, at 1153.

42 See Fox, supra note 10, at 139-66.

43 See Ruti G. Teitel, Humanity’s Law 1-72 (2011).

44 Criddle, Evan J. & Fox-Decent, Evan, A fiduciary Theory of Jus Cogens, 34 Yale J. Int’l L. 331, 335-39 (2009 Google Scholar).

45 Rome Statute of the International Criminal Court, July 17, 1998, 2187 Unts 90 [hereinafter Rome Statute] ; see Bassiouni, M. Cherif, Introduction To International Criminal Law 387575 (2003 Google Scholar).

46 Belsky, Adam C., Merva, Mark & Roht-Arriaza, Naomi, Implied Waiver Under the Fsia: A Proposed Exception to Immunity for Violations of Peremptory Norms of International Law, 77 Cal. L. Rev. 365 (1989)CrossRefGoogle Scholar; Reimann, Mathias, A Human Rights Exception to Sovereign Immunity: Some Thoughts on Princz v. Federal Republic of Germany, 16 Mich. J. Int’l L. 403 (1995)Google Scholar; Kokott, Juliane, Mißbrauch und Verwirkung von Souveränitätsrechten bei gravier enden Völkerrechtsverstößen, in Recht Zwischen Umbruch Und Bewahrung: VöLkerrecht—Europa Recht—Staatsrecht, Festschrift FÜR Rudolf Bernhardt 135 (1995)CrossRefGoogle Scholar; see abo Princz v. Federal Republic of Germany, 813 F. Supp. 22 (D.D.C. 1992) (accepting the waiver argument), rev’d, 26 F.3d 1166, 1169 (D.C. Cir. 1994); see also 26 F.3d at 1174 (Wald, J., dissenting) (same); Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (9th Cir. 1992) (rejecting waiver argument).

47 Bianchi, Andrea, Denying State Immunity to Violators of Human Rights, 46 Austrian J. Pub. & Int’l L 195, 205, 217 (1994)Google Scholar; Bederman, David J., Dead Man’s Hand: Reshuffling Foreign Sovereign Immunities in U.S. Human Rights Litigation, 25 Ga. J. Int’l & Comp. L. 255, 273-76 (1995-96)Google Scholar.

48 See Higgins, Rosalyn, The Role of Domestic Courts in the Enforcement of International Human Rights: The United Kingdom, in Enforcing International Human Rights in Domestic Courts (Conforti, Benedetto & Francioni, Francesco eds., 1997)Google Scholar; Bröhmer, supra note 22, at 197-215; Bianchi, supra note 47, at 205, 217.

49 Pinochet III, supra note 1, at 205 (Lord Browne-Wilkinson); id. at 248 (Lord Hope of Craighead); id. at 262 (Lord Hutton); id. at 278 (Lord Millett); id. at 288, 289 (Lord Phillips of Worth Matravers).

50 See Bianchi, supra note 4, at 262-66.

51 Stern, Brigitte, Immunities for Heads of State: Where Do We Stand?, in Justice For Crimes Against Humanity 103 (Lattimer, Mark & Sands, Philippe eds., 2003)Google Scholar; Jurisdictional Immunities of States and Their Property, Report of the International Law Commission on the Work of Its Fifty-First Session, UN Gaor 54th Sess., at 127-28, UN Doc. A/54/10 (1999).

52 See Wickremasinghe, supra note 38, at 415 (describing narrower and broader possible readings of Pinochet III).

53 Byers, supra note 25, at 429 (“There is no question that the Law Lords felt the eyes of the world upon them. The entrance to the Houses of Parliament, where the Judicial Appeals Committee heard the case (in a small and dingy meeting room) was besieged by hundreds of journalists for the full two weeks of the hearings.”).

54 UN Convention on Jurisdictional Immunities of States and Their Property, GA Res. 59/38, annex (Dec. 2, 2004).

55 See Stewart, David P., The Immunity of State Official Under the UN Convention on Jurisdictional Immunities of States and Their Property, 44 Vand. J. Transnat’l L. 1047, 1052-60 (2011)Google Scholar.

56 Apr. 10, 1926, 176 LNTS 199 (entered into force Jan. 8, 1937).

57 European Convention on State Immunity, opened for signature May 16, 1972, ETS No. 74, 1495 UNTS 182 (entered into force June 11, 1976). Information about Council of Europe treaties, including ratifications and cur rent status, is available at http://www.conventions.coe.int/Treaty/Commun/ListeTraites.asp?Cm=8&CL=ENG.

58 See Fox, supra note 10, at 185-88.

59 Hall, Christopher Keith, Un Convention on State Immunity: The Need for a Human Rights Protocol, 55 Int’l & Comp. L.Q. 411, 412 (2006 CrossRefGoogle Scholar).

60 See Fox, supra note 10, at 201.

61 See, e.g., The Porto Alexandre, [1920] P. 30 (Lord Scrutton); Baccus Srl v. Servicio Nacional del Trigo, [1957] 1 Q.B. 438, 464 (Lord Singleton); Trendtex Trading Corp. v. Cent. Bank of Nigeria, [1977] 1 Q.B. 529 (Lords Denning and Shaw); Flota Maritima Browning de Cuba, S.A. v. S.S. Canadian Conqueror, [1962] S.C.R. 598 (Can.).

62 See Fox, supra note 10, at 201-36; Giuttari, supra note 35, at 352-69.

63 See McGregor, Lorna, State Immunity and Jus Cogens, 55 Int’l & Comp. L.Q. 437 (2006 CrossRefGoogle Scholar).

64 See 28 U.S.C. §1605A (2008). The International Court of Justice (ICJ) noted in Jurisdictional Immunities of the State-, supra note 5, para. 71, that this provision of U.S. law “has no counterpart in the legislation of other States.”

65 Ferrini v. Federal Republic of Germany, supra note 6.

66 Prefecture of Voiotia v. Federal Republic of Germany, supra note 6.

67 Based on the immunity of Germany, the Greek minister of justice refused to give consent to enforce the Prefecture of Voiotia judgment against German property in Greece—a decision upheld by the European Court of Human Rights. Kalogeropoulou v. Greece, 2002-X Eur. Ct. H.R. 415, 429 (2002). Moreover, in the subsequent case of Margellos v. Federal Republic of Germany, a judgment of the special Supreme Court of Greece reached the opposite conclusion entirely—namely, that immunity should be accorded to states for wartime crimes committed in the forum state—although it did not directly overrule Prefecture of Voiotia. Margellos v. Federal Republic of Ger many, Spec. Sup. Ct., Sept. 17, 2002, 129 ILR 525 (Greece). In a subsequent Italian case, United States v. Tissino, the Court of Cassation held the United States immune in a suit alleging that the storage of nuclear weapons at an air force base violated international law. The decision noted that international practice since Ferrini favored immunity even when states are accused of international crimes or jus cogens violations. United States v. Tissino, Cass., Feb. 25, 2009, Ildc 1262, para. 20 (It.). The European Court of Human Rights rejected the normative hierarchy theory in 2001 by a vote of 9 to 8. Al-Adsani v. United Kingdom, 2001-XI Eur. Ct. H.R. 79, 103 (2001).

68 See, e.g., Wright, supra note 8, at 144; O’Keefe, Roger, State Immunity and Human Rights: Heads and Walk, Hearts and Minds, 44 Vand. J. Transnat’l L. 999, 1012-33 (2011)Google Scholar.

69 Jurisdictional Immunities of the State, supra note 5, para. 35.

70 See Milanovic, Marko, Germany v. Italy: Germany Wins, EJIL: Talk! (Feb. 3, 2012)Google Scholar, at http://www.ejiltalk.org/germany-v-italy-germany-wins/; Bianchi, Andrea, On Certainty, EJIL: Talk! (Feb. 16, 2012)Google Scholar, at http://www.ejiltalk.org/author/abianchi/.

71 Jurisdictional Immunities of the State, supra note 5, para. 108.

72 Jurisdictional Immunities of the State, paras. 56-58; see abo id., Diss. Op. Yusuf, J., para. 21.

73 Jurisdictional Immunities of the State, para. 57; see also id., Sep. Op. Keith, J., para. 2.

74 Id., para. 78.

75 Id., paras. 84, 92-98. Writing in dissent, Judge Yusuf reasoned that immunity should not be resolved in the abstract but should be based on the specific factors of each case. In this case, he argued, because of the right to effective remedy for violations of international humanitarian law and because no other means of redress were available, Germany was not entitled to immunity before the Italian national courts. Id., Diss. Op. Yusuf, J., paras. 9-42. Judge Bennouna’s reasoning was similar, but he concurred because interstate negotiation left the door open to reparations for the victims. Id., Sep. Op. Bennouna, J., paras. 23-25,30. Judge Trindale, also writing in dissent, apparently accepted the normative hierarchy argument. Id., Diss. Op. Trindale, J., paras. 129, 227, 288-99.

76 Jurisdictional Immunities of the State, para. 87.

77 Fox, supra note 10, at 666-67.

78 Id.

79 See Institut de droit international, Resolution on Immunities from Jurisdiction and Execution of Heads of State and of Government in International Law (Aug. 26, 2001), reprinted in State Immunity: Selected Mate Rials and Commentary 212 (Dickinson, Andrew, Lindsay, Rae & Loonam, James P. eds., 2004)Google Scholar, available at http://www.idi-iil.org/idiE/resolutionsE/2001_van_02_en.PDF.

80 See Novogrodsky, Noah B., Speaking to Africa—the Early Success of the Special Court for Sierra Leone, 5 Santa Clara J. Int’l L. 194, 203-07 (2006)Google Scholar; ICC Press Release, ICC Issues a Warrant of Arrest for Omar Al Bashir, President of Sudan (Mar. 4, 2009A at http://www.icc-cpi.int/Menus/ICC/Press+and+Media/Press+Releases/Press+Releases+%282009%29/.

81 Rome Statute, supra note 45, Art. 27(2).

82 Akande & Shah, supra note 8, at 819-20 (2010) (listing cases); Rojo, Enrique Carnero, National Legislation Providing for the Prosecution and Punishment of International Crimes in Spain, 9 J. Int’l Crim. Just. 699, 723-24 (2011)CrossRefGoogle Scholar (collecting and discussing cases from Spain) ; cf. United States v. Noriega, 746F.Supp. 1506, 1519-20 (S.D. Fla. 1990) (denying head-of-state immunity to Noriega because the United States did not recognize him as a head of state).

83 Abdoulaye Yerodia Ndombasi was minister of foreign affairs when the warrant was issued but had left that office by the time the case was heard and resolved by the ICJ. Belgium argued that the case should be dismissed because it no longer presented a live controversy. The Court disagreed. Arrest Warrant of 11 April 2000, supra note 5, paras. 23-32; see abo Certain Questions of Mutual Assistance in Criminal Matters (Djib. v. Fr.), 2008 ICJ Rep. 177, para. 170 (June 4) (reaffirming head-of-state immunity).

84 See supra note 5.

85 Arrest Warrant of 11 April 2000, supra note 5, para. 61.

86 Jones, supra note 5, at 89-93 (Lord Hoffmann); see, e.g., Akande & Shah, supra note 8, at 828-31.

87 Arrest Warrant of 11 Aprii 2000, supra note 5, para. 59 (reasoning that “jurisdiction does not imply absence of immunity, while absence of immunity does not imply jurisdiction”).

88 See Bates, Ed, State Immunity for Torture, 7 Hum. Rts. L. Rev. 651, 672-73 (2007)Google Scholar (discussing the tension between Arrest Warrant and Pinochet); Wirth, supra note 10, at 882-85 (same).

89 See infra text accompanying notes 135-37.

90 Jurisdictional Immunities of the State, supra note 5, para. 91.

91 Id., para. 58.

92 Van Alebeek, supra note 22, at 106-07.

93 Jurisdictional Immunities of the State, paras. 73-76, 85, 96.

94 Id., para. 96.

95 See infra text accompanying notes 140-76.

96 Jones, supra note 5, paras. 89-93 (Lord Hoffmann).

97 Id. Jones has taken his case to the European Court of Human Rights, arguing that the House of Lords decision denied him access to courts as guaranteed by the European Convention. See Jones v. United Kingdom, App. No. 34356/06 (Eur. Ct. H.R. filed July 26, 2006).

98 Akande & Shah, supra note 8, at 851-52 (based on conferral of jurisdiction by international law, no immunity in criminal and some civil cases); Bradley & Heifer, supra note 4, at 239-40 (arguing, based on state practice, that an exception to immunity might be developing in criminal, but not civil, cases); Cassese, Antonio, When May Senior State Official be Tried for International Crimes? Some Comments on the Congo v. Belgium Case, 13 Eur. J. Int’l L. 853, 867-74 (2002)CrossRefGoogle Scholar (based on state practice and opinio juris, no immunity in criminal cases); Alexander Orakhelashvili, International Crimes, Human Rights Viohtions, and the Subject-Matter Immunity of States and their Official, at http:/ssrn.com/abstract=1966307 (for various reasons, no immunity in civil or criminal cases alleging serious human rights violations, international crimes, or breach of jus cogens); Stephens, supra note 8, at 1170 (no immunity in criminal or civil cases); Wirth, supra note 10, at 888-91 (questioning “not official act” argument but reasoning that state practice and opinio juris show that customary international law denies functional immunity in criminal cases alleging “core crimes”); Wright, supra note 8, at 164 - 65 (no immunity for torture in civil or criminal cases).

99 See, e.g., Statute of the International Court of Justice, Art. 38(1); Restatement (Third) Of The Foreign Relations Law of the United States, supra note 11, §102(2).

100 Shaw, supra note 39, at 72-75; North Sea Continental Shelf (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 44, para. 77 (Feb. 20).

101 The cases include those cited by other authors and those found reports issued by the ILC, as well as some cases discovered through Oxford databases and Internet searches. The author has endeavored to include every reported criminal case denying or accepting functional immunity but not every case in which immunity was not invoked if doing so would simply repeat the analysis already provided. For a general discussion of national court decisions and customary international law, including objections to characterizing decisions as state practice, see Moremen, Philip M., National Court Decisions as State Practice: A Transnational Judicial Dialogue?, 32 N.C.J. Int’l L. & Com. Reg. 259, 274-84 (2006)Google Scholar.

102 State consent is often cited as the basis for customary international law. See, e.g., Henkin, Louis, International Law: Politics, Values and Functions, 216 Recueil Descours 9, 50 (1989 IV)Google Scholar. Many commentators argue that in practice the requirements of customary international law are applied in ways that may make the consent of individual states fictional.

103 Jones, supranote 5, para. 27 (Lord Bingham of Cornhill); Italy v. Lozano, No. 31171, ILDC 1085 (It. 2008) (English summary of the case).

104 Certain Questions of Mutual Assistance in Criminal Matters, supra note 83, para. 188 (interpreting claim of functional immunity as one of state immunity); Arrest Warrant of 11 April 2000, supra note 5, paras. 58-61.

105 Immunity of State Officials from Foreign Criminal Jurisdiction, supra note 10, paras. 88, 181 (framing the question in terms of an exception to immunity) ; Second Report on Immunity of State Officials from Foreign Criminal Jurisdiction, supra note 10, para. 18 (same).

106 Bassiouni, supra note 45, at 81- 82 (framing the issue in terms of an exception to immunity); Cassese, supra note 10, at 304, 305 (same); Fox, supra note 10, at 695-700 (same); Akande, Dapo, International Law Immunities and the International Criminal Court, 98 Ajil 407, 412-16 (2004)CrossRefGoogle Scholar (same); Bradley & Heifer, supra note 4, at 233- 40 (same) ; Foakes, supra note 10, at 8 -9 (same) ; Wickremasinghe, supra note 38, at 403 (same) ; Wirth, supra note 10, at 878, 884 (same); see also Oppenheims International Law 1043-44 (Jennings, Robert & Watts, Arthur eds., 9th ed. 1992)Google Scholar; Satow’s Guide To Diplomatic Practice §§2.4,15.27 (Gore-Booth, Lord ed., 5th ed. 1979)Google Scholar. But see Stephens, supra note 8, at 1175-76. But cf. Keitner, supra note 10, at 606 -21 (questioning the background norm of immunity in civil cases against defendants present in the forum state’s territory). If jus cogens violations are not official conduct, then they are not entitled to this kind of immunity. Immunity is generally avail able even for criminal conduct, however, and there is little state practice and opinio juris tending to show that jus cogens violations are not official conduct. For evidence that arguably supports the not-official-conduct view, see infra notes 137, 191-93. But see supra note 86; Cassese, supra note 98, at 867-74; infra note 135.

107 See Statement of Interest of the United States, paras. 10-11, Yousuf v. Samantar, 2011 U.S. Dist. Lexis 155280 (E.D. Va. 2011 ) (Civil Action No. 1:04 CV 1360 (LMB)); see also Bellinger, supra note 20, at 829-30. At least some French, German, and Swiss officials share this view. See infra text accompanying notes 126-33. Spain’s position in the Pinochet litigation was that former heads of states are immune for actions taken in their official capacity. House of Lords Hearing, Excerpts from Legal Submissions, November 1998, in The Pinochet Papers: the Case of Augusto Pinochet in Spain and Britain 111-12 (Brody, Reed & Ratner, Michael eds., 2000)Google Scholar; see also Young, Simon N. M., Immunity in Hong Kong for Kleptocrats and Human Rights Viohtors, 41 Hong Kong L.J. 421, 428 (2011)Google Scholar (suggesting that China (and Hong Kong) will afford absolute immunity to former heads of state who allegedly committed international crimes, and noting that a case like Pinochet would come out differently in those courts). As this article went to press, the United States reaffirmed its position in a case brought against the former president of Mexico alleging human rights violations. The State Department requested immunity, reasoning in part that former officials are entitled to immunity for acts “taken in an official capacity” and that “the Department of State generally presumes that actions taken by a foreign official exercising the powers of his office were taken in his official capacity.” Suggestion of Immunity Submitted by United States of America, Doe v. Zedillo Ponce de Leon, Exh. 1, No. 3:11-cv-014330Awt (D. Conn. Sept. 7, 2012) (letter from Harold Hongju Koh, Legal Adviser, to Stuart F. Delery, Acting Assistant Attorney General (Sept. 7, 2012)) [hereinafter Koh letter].

108 Pinochet III, supra note 1, at 201-03, 205 (Lord Browne-Wilkinson); id. at 210-12 (Lord Goff of Chieveley); id. at 241-43 (Lord Hope of Craighead); id. at 249-53 (Lord Hutton); id. at 265 (Lord Saville of Newdigate); id. at 269 (Lord Millett). All five of the Law Lords who decided Pinochet I apparently shared this starting point. Pinochet I, supra note 28, at 73-75, 77, 83 (Lord Slynn of Hadley); id. at 90-95 (Lord Lloyd of Berwick); id. at 114-15 (Lord Steyn); id. at 118 (Lord Hoffmann); cf. id. at 110 (Lord Nicholls of Birkenhead) (discussing whether former heads of state enjoy “residual immunity” from prosecutions in other states). Only Lord Phillips in Pinochet Hi suggests that former heads of state do not generally enjoy immunity from criminal suit in foreign national courts for alleged crimes committed in the exercise of official functions. Id. at 280-85 (Lord Phillips of Worth Matravers).

109 Troops passing through a foreign state were immune from suit so as not to divert the troops from national objects and duties.” Wheaton, Henry, Elements of International Law §99 (Dana, Richard Henry Jr. ed., 8th ed. 1866)Google Scholar. The same applied to public vessels, a situation that Wheaton contrasted to private subjects in the territory of a foreign sovereign, who are “not employed [by the sovereign], nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no motive for requiring it.” Id. §101. Litigation in the United States from the 1790s has been interpreted, however, to mean that foreign officials other than diplomats were not entitled to immunity in civil cases. See Keitner, Chimène I., The Forgotten History of Foreign Official Immunity, 87 N.Y.U. L. Rev. 704, 709-10 (2012)Google Scholar. But see Bradley, Curtis A. & Goldsmith, Jack L., Foreign Sovereign Immunity and Domestic Officer Suits, 13 Green Bag 2D 137, 141-42 (2010 Google Scholar).

110 See supra text accompanying notes 54-76.

111 Jurisdictional Immunities of the State, supra note 5, para. 55. This article takes a broad view of state practice and does not engage the academic debate on whether it includes verbal acts. See Guzman, Andrew T., Saving Customary International Law, 27 Mich. J. Int’l L. 115, 125-26, 151-53 (2005)Google Scholar (describing this debate). Note that narrower definitions of state practice could provide further reasons for concluding that the national court cases have little relevance to the customary international law of immunity.

112 See infra text accompanying notes 140-47.

113 The Lotus case did consider cases in which jurisdiction not asserted, but the case was about jurisdiction, not immunity. S.S. Lotus (Fr./Turk.), 1927 PCIJ (ser. A) No. 10, at 28 (Sept. 7). Similarly, the analysis below includes an examination of cases in which immunity was not invoked.

114 Certain Questions of Mutual Assistance in Criminal Matters, supra note 83, para. 196.

115 See Immunity of State Officials from Foreign Criminal Jurisdiction, supra note 10, para. 216.

116 Third Report on Immunity of State Officials from Foreign Criminal Jurisdiction, supra note 19, paras. 17-31. A few cases explicitly deny immunity invoked by the individual defendant rather than the state. See Chroni, Gabriella, Swiss Court Finds no Immunity for the Former Algerian Minister of Defence Accused of War Crimes: Another Brick in the Wall of the Fight Against Impunity, EJIL: Talk! (Aug. 15, 2012)Google Scholar, at http://www.EJILtalk.org/swiss-court-finds-no-immunity-for-the-former-algerian-minister-of-defence-accused-of-war-crimes-another-brick-in-the-wall-of-the-fight-against-impunity/ (describing decision of Swiss Federal Criminal Court); see also infra text accompanying notes 178-91 (the Yaron and Bouterse cases arguably fall into this category, although both were dismissed for lack of jurisdiction). This analysis suggests that Figure 1 needs an additional line that connects “Immunity not invoked” to “Immunity denied.”

117 See, e.g., infra text accompanying notes 126-34.

118 Third Report on Immunity of State Officials from Foreign Criminal Jurisdiction, supra note 19, paras. 27-28.

119 See supra note 40.

120 See Zhang v. Jiang Zemin [2010] NSWCA 255, para. 12 (Austl.) (setting out the Australian minister of foreign affairs’ submission, which discusses China’s invocation of immunity on behalf of Jiang Zemin), available at http://documents.law.yale.edu/sites/default/files/Zhang_243Flr299.pdf; Matar v. Dichter, 500 F.Supp.2d 284, 292 (S.D.N.Y. 2007), aff’d 563 F.3d 9 (2d Cir. 2009) (Israel invoked immunity); Koh letter, supra note 107; see also] JSP v. Spain, ILDC 545 (Haarlem Dist. Ct. 2006) (Neth.) (holding that Spain was not entitled to immunity, because it did not invoke it); id., paras. A1-A6 (analysis by Roseanne van Alebeek) (questioning the court’s decision with respect to the immunity of states but distinguishing it from cases against individual state organs or officials). But cf. Zhang, supra, para. 48. Some evidence suggesting that immunity need not be invoked also involves states rather than their officials, see Immunity of State Officials from Foreign Criminal Jurisdiction, supra note 10, para. 215, but the two contexts are distinguishable. See Gionata Buzzini, Piero, Lights and Shadows of Immunities and Inviolability of State Officials in International Law: Some Comments on the Djibouti v. France Case, 22 Leiden J. Int’l L. 455, 470-73 (2009)CrossRefGoogle Scholar.

121 Third Report on Immunity of State Officials from Foreign Criminal|Jurisdiction, supra note 19, paras. 17-19.

122 See Foakes, supra note 10, at 11 (“There have also been many cases suggesting a strong reluctance to prosecute foreign state officials, particularly where the foreign state concerned is likely to object to such proceedings.”).

123 Guzman, supra note 111, at 126-27.

124 Jurisdictions Immunities of the State, supra note 5, para. 55 (explaining sources of state practice and opinio juris, but not mentioning the assertion of jurisdiction or the failure to bring cases).

125 See infra text accompanying notes 194-200.

126 Jurisdiccional Immunities of the State, supra note 5, para. 55.

127 Gallagher, Katherine, Universal Jurisdiction in Practice: Efforts to Hold Donald Rumsfeld and Other High-Level United States Official Accountable for Torture, 7 J. Int’l Crim. Just. 1087, 1110 (2009)CrossRefGoogle Scholar.

128 Der Generalbundesanwalt beim Bundesgerichtshof, Az. 3 Arp 654/03-2, Strafanzeige gegen Jiang Zemin (2005); see http://www.kaleck.org/index.php?id=84,174,0,0,1,0 (which includes a link to the decision itself). It is unclear whether China formally invoked immunity on Jiang’s behalf. China has done so in other litigation. See Zhang v. Jiang Zemin, supra note 120, para. 12 (setting out the submission of the Australian minister of foreign affairs and discussing China’s invocation of immunity on behalf of Jiang Zemin). Germany apparently also declined to investigate Chechyan Vice President Ramzan Kadyrov because he enjoyed immunity, but this decision has not been published. See International Prosecution of Human Rights Crimes 107-08 (Wolfgang Kaleck, Michael Ratner, Tobias Singeinstein & >Peter Weiss eds., 2006).

129 Bush may not have felt confident in the statement by Swiss officials, as he eventually canceled the trip, although the reason he gave was concern with protests, not the fear of arrest. MacAskill, Ewen & Hirsch, Afua, George Bush Calk Off Trip to Switzerland, Guardian (London), Feb. 6, 2011 Google Scholar, at http://www.guardian.co.uk/law/2011/feb/06/george-bush-trip-to-switzerland (“Folco Galli, a spokesman for the Swiss justice ministry, told the Associated Press that the department’s initial assessment was that Bush would have enjoyed immunity from prosecution for any actions taken while in office.”).

130 See supra note 111.

131 Cassese, Antonio, The Italian Court of Cassation Misapprehends the Notion of War Crimes, 6 J. Int’l Crim. Just. 1077 (2008)CrossRefGoogle Scholar (discussing Lozano, supra note 103).

132 See Gallagher, supra note 127, at 1110; Letter from Public Prosecutor, Paris Court of Appeal, to Patrick Baudouin (Feb. 27, 2008), at http://ccrjustice.org/files/Rumsfeld_FrenchCase_%20Prosecutors%20Decision_02_08.pdf.

133 Gallagher, supra note 127, at 1110.

134 See infra text accompanying notes 113-21. This analysis also suggests that Figure 1 needs an additional line that connects “Immunity not invoked” to “Immunity conferred.”

135 See, e.g., Zhang v. Jiang Zemin, supra note 120, paras, 89-72; Jones, supra note 5, paras. 89-93 (Lord Hoffmann); Fang v. Jiang, supra note 5; Bouzariv. Iran, 71 O.R.3d 675 (Ont. Ct. App2004); Schmidt v. Home Sec’y, [1995] 1 I.L.R.M. 301 (Ir.); Jaffe v. Miller, [1993] 13 O.R.3d 745, 758-59 (Can.); Church of Scientology v. Comm’r (Fed. Sup. Ct. Sept. 26, 1978), 65Ilr193,198 (Ger.); see also Convention on Jurisdictional Immunities of States and their Property, supra note 54 (defining a state as including its representatives; providing that states are immune from suit; and not including an exception for human rights violations).

136 Saman tar v. Yousuf, 130 S.Ct. 2278 (2010); see also Wuerth, Ingrid, Foreign Official Immunity Determinations in the U.S. Courts: The Case Against the State Department, 51 Va. J. Int’l L. 915 (2011)Google Scholar (describing Samantar and official immunity determinations in U.S. courts).

137 See, e.g., Matar v. Dichter, 563 F.3d 9 (2d Cir. 2009) (immunity granted for Israeli official in case alleging torture and war crimes); see also Koh letter, supra note 107; cf. Yousuf v. Samantat, No. 1:04cvl360 (LMB/JFA) (E.D. Va. Feb. 15, 2011) (order denying immunity because the United States does not recognize any government of Somalia and because the defendant had spent significant time in the United States); see also Ahmed v. Magan, No. 2:10-cv-342 (S.D. Oh. Nov. 7, 2011) (denying defendant’s motion to dismiss). Some U.S. cases decided under the Foreign Sovereign Immunities Act (before the Supreme Court’s decision in Samantar) have suggested that international crimes cannot constitute official conduct. See, e.g., In re Estate of Marcos, 25 F.3d 1467, 1472 (9th Cir. 1994); In re Doe, 860 F.2d 40, 45 (2d Cir. 1988); Xuncax v. Gramajo, 886 F. Supp. 162, 175 (D. Mass. 1995).

138 Jurisdictional Immunities of the State, supra note 5, para. 55.

139 For other cases that might be classified with Pinochet, see infra text accompanying notes 180-91.

140 Certain Questions of Mutual Assistance in Criminal Matters, supra note 83, para. 195; see also supra notes 113-21.

141 Thirlway, Hugh, The Sources of International Law, in International Law 95 (Evans, Malcolm D. ed., 3d ed. 2010)CrossRefGoogle Scholar; Aust, Anthony, Handbook of International Law 6 (2d ed. 2010)CrossRefGoogle Scholar; MacGibbon, I. C., Customary International Law and Acquiescence, 1957 Brit. Y.B. Int’l L. 115, 118Google Scholar; cf. Khurts Bat v. Investigating Judge of the German Federal Court, [2011] Ewhc 2029, para. 99 (Admin) (Lord Justice Moses).

142 See supra note 98.

143 See Second Report on Immunity of State Officials from Foreign Criminal Jurisdiction, supra note 10, paras. 68-72.

144 Fox, supra note 10, at 17.

145 Akehurst, Michael, Custom as a Source of International Law, 1975 Brit. Y.B. Int’l L. 1, 39Google Scholar; cf. Shaw, supra note 39, at 85 (acquiescence constitutes consent when a rule develops in a new field of international law, “whether it stems from actual agreement or lack of interest”).

146 Charney, Jonathan I., Universal International Law, 87 AJIL 529, 536 (1993 Google Scholar).

147 Kelly, J. Patrick, The Twilight of Customary International Law, 40 Va. Int’l L. 449, 473 (2000)Google Scholar; Anthony A. D’Amato, the Concept of Custom in International Law 69-70 (1971).

148 Filártiga v. Peña-Irak, 630 F.2d 876 (2d Cir. 1980). Commentators citing Filârtiga and other Alien Tort Statute cases to show an erosion of immunity include Wright, supra note 8, at 167, and Cassese, Antonio, The Belgian Court of Cassation v. the International Court of Justice: The Sharon and Others Case, 1 J. Int’l Crim. Just. 437, 446-47 (2003)CrossRefGoogle Scholar.

149 Filártiga, 630 F.2d 876; see Stephens, Beth, Filártiga v. Peña-Irala: From Family Tragedy to Human Rights Accountability, 37 Rutgers L.J. 623, 625-26 (2006 Google Scholar).

150 See, e.g., Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996). The suit was based on torture that the defendant committed while he was an Ethiopian government official in 1977. After a regime change he fled Ethiopia and, in 1987, was granted political asylum in the United States on the ground that he feared persecution by the Ethiopian government. See Rice, Andrew, The Long Interrogation, N.Y. Times, June 4, 2006,Google Scholar §6 (Magazine), at 50.

151 MacGibbon, I. C., The Scope of Acquiescence in International Law, 1954 Brit. Y.B. Int’l L. 143, 173-77Google Scholar (discussing cases). In the Fisheries case, the United Kingdom argued that it had not acquiesced in the Norwegian practices, because it was unaware of them. The Court rejected the United Kingdom’s argument on the ground that the United Kingdom “could not have been ignorant. . . of Norwegian practice.” Fisheries (UK v. Nor.), 1951 ICJ Rep. 116, 138-39 (Dec. 18).

152 In re Estate of Marcos, 25 F.3d 1467, 1472 (9th Cir. 1994).

153 Id.; cf. Paul v. Avril, 812 F. Supp. 207, 210-11 (S.D. Fla. 1993) (noting that Haitian government waived any possible immunity to which the defendant, a former head of state, might be entitled).

154 Antonio Cassese suggests that the individual defendants in Alien Tort Statute cases may not have raised immunity for this reason, Cassese, supra note 148, at 447 n.22. It is the state, however, not the individual, that is entitled to raise immunity. See supra note 41.

155 The ICJ reasoned in Arrest Warrant that “it is only where a State has jurisdiction under international law in relation to a particular matter that there can be any question of immunities in regard to the exercise of that juris diction.” Arrest Warrant of 11 April 2000, supra note 5, para. 46. In that case the Court nevertheless considered the issue of immunity without resolving whether the Belgian courts had jurisdiction, because the Democratic Republic of Congo did not contest jurisdiction. Id., paras. 42-46. In U.S. practice, questions of personal jurisdiction have historically been resolved before issues of immunity. Petrol Shipping Corp. v. Kingdom of Greece, 360 F.2d 103, 106 (2d Cir. 1966); see also Higgins, Rosalyn, Certain Unresolved Aspects of the Law of State Immunity, 29 Neth. Int’l L. Rev. 265, 271 (1982)CrossRefGoogle Scholar (characterizing immunity as an exception to jurisdiction). Although both jurisdiction and immunity should be considered before the merits of the case, cf. Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, 1999 ICJ Rep. 62, para. 63 (Apr. 29), this does not imply that immunity must be raised before the jurisdictional issues are resolved.

156 Certain Questions of Mutual Assistance in Criminal Matters, supra note 83, para. 196.

157 Gallagher, supra note 127, at 1101-09; Center for Constitutional Rights Press Release, Spanish Judge Drops Case Against Bush Lawyers (Apr. 14, 2011), at http://www.ccrjustice.org/newsroom/press-releases/spanish-judge-drops-case-against-bush-lawyers.

158 The Guatemalan genocide cases may also fit this description. A complaint was filed in 1999 in Spain against former Guatemalan head of state General Efrain Rios Montt and seven other senior officials, alleging genocide, torture, and other crimes against the indigenous Mayan people. See Center for Justice & Accountability, Guatemah Genocide Case Summary, at http://www.cja.org/section.php?id=83#%20in%20Brief. The Spanish lower courts issued several opinions on jurisdiction. In 2005, the Spanish Constitutional Court held that the Spanish universal jurisdiction statute applied to the alleged crimes, reasoning that no link was required between Spain and the alleged crimes or the defendants. See Roht-Arriaza, Naomi, Case Report: Guatemala Genocide Case, 100 AJIL 207, 213 (2006)CrossRefGoogle Scholar. Immunity does not appear to have played a role in the case. See International Law Commission, Immunity of State Officials from Foreign Criminal Jurisdiction, UN Doc. A/CN.4/Sr.3086, at 5 (2011), at http://untreaty.un.org/ilc/documentation/english/a_cn4_sr3086.pdf (noting that “the question of [universal] jurisdiction had been studied in depth [by the Supreme Court of Spain], whereas the subject of immunity had not been broached (perhaps one of the reasons was that the Guatemalan Government had not raised it)”). Arrest warrants were issued. The Guatemalan Constitutional Court first accepted the warrants but then reversed itself, holding that the Spanish courts lacked jurisdiction and that defendants were not subject to extradition. See Naomi Roht-Arriaza, Prosecuting Genocide in Guatemala: the Case Before the Spanish Courts and the Limits To Extradition 3 (2009), at http://cgs.gmu.edu/publications/hjd/hjd_wp_2.pdf. The Spanish universal jurisdiction statute was amended in 2009 to require a link between the case and Spain. See Langer, Maximo, The Diplomacy of ‘Universal Jurisdiction: The Political Branches and the Transnational Prosecution of International Crimes, 105 AJIL 1, 40 (2011)CrossRefGoogle Scholar. Under the revised statute, the Guatemalan genocide case may not go forward.

159 The case against Khaled Ben Said, a former Tunisian police chief serving in France as a vice-counsel, was brought in 2002 by a private party alleging acts of torture that violated the Convention Against Torture. The prosecutor investigated and moved forward with the case; Said himself apparently raised the issue of consular immunity, to which he was not entitled under the Vienna Convention on Consular Relations. See International Federation for Rights, Human, A Strasbourg Judge Issues an International Arrest Warrant Against a Tunisian Vice-Consul for Torture (Mar. 4, 2002)Google Scholar, at http://www.fidh.org/communiq/2002/tn0403a.htm. Said eventually fled to Tunisia and was tried and convicted in absentia by the French courts in 2008. See Langer, sufra note 158, at 22. The French cour d’assises of Paris tried Alfredo Astiz in absentia in 1990 for the killing of French nuns in Argentina, and Argentina tried and convicted him in 2011. Ferguson, Sam, Argentina’s ‘Blonde Angel of Death, ‘ Convicted for Role in Dirty War, Christian Sci. Monitor, Oct. 27, 2011 Google Scholar, at http://www.csmonitor.com/World/Americas/2011/1027/Argentina-s-Blond-angel-of-death-convicted-for-role-in-dirty-war.

160 Information about the unreported, 2005 case of Ely Ould Dah at the cour d’assise of Nimes is available at http://www.trial-ch.org/fr/trial-watch/profile/db/facts/ely_ould-dah_266.html. Ould Dah subsequently filed an application with the European Court of Human Rights, which rendered its decision in 2009. Ould Dah v. France, App. No. 13112/03, Admissibility (Eur. Ct. H.R. Mar. 17, 2009), 48 Ilm 869 (2009).

161 Langer, supra note 158, at 21-22.

162 Sala v. Kabarebe, Indictment, ILDC 1198 (Spain 2008).

163 Id., para. A6 (analysis by Juan Santos Vara).

164 Id., para. A7; see also Assembly of the African Union, Decision on the Report of the Commission on the Abuse of the Principle of Universal Jurisdiction, Doc. Assembly/AU/Dec. 199 (XI) (July 1, 2008); The Spanish Indictment of High-Ranking Rwandan Official, 6 J. Int’l Crim. Just. 1003 (2008) (criticizing the indictment and noting that it has generated much controversy).

165 See Akehurst, supra note 145, at 39.

166 The direct analogy would be a state that declared its nationals were not entitled to immunity, but the declaration was purportedly undermined by the state’s desire to curry favor with the forum state. The argument here accepts that such a declaration would be evidence of state practice and opinio juris.

167 See Fédération Nationale des Deportees v. Barbie, Cass., Oct, 6, 1983, 78 ILR 124 (Fr.); In re Ahlbrecht, Spec. Ct. Cass., Apr. 11 1949, Ann. Dig. & Rep. Pub. Int’l L. Cases 397 (Neth.); In re Bühler, Sup. Nat’l Trib., July 10 1948, Ann. Dig. & Rep. Pub. Int’l L. Cases 680 (Pol.). Eichmann’s conviction in Israel raised the act-of-state doctrine, but not immunity. Att’y Gen. of Israel v. Eichmann, Dist. Ct.-Jerusalem, Dec. 11, 1961, in Oliver, Covey, The Attorney-General of the Government of Israel v. Eichmann, 56 AJIL 805 (1962)CrossRefGoogle Scholar (reprinting excerpts from the decision). That court’s reasons for rejecting the act-of-state doctrine might also apply to immunity, but the case is not evidence of state practice or opinio juris with respect to immunity.

168 Zaire is now the Democratic Republic of Congo. The Dutch convicted Sebastian Nzapali, a former official of Zaire, of torture in 2004. No evidence indicates that the Democratic Republic of Congo objected to this case. See Ferdinandusse, Ward, Case Report: Prosecutor v. N, 99 AJIL 686 (2005)CrossRefGoogle Scholar; see also Simons, Marlise, Dutch Court Puts Former Congo Officer on Trial in Torture Case, N.Y. Times, Mar. 25, 2004 Google Scholar, at A13 (noting that Nzapali allegedly feared persecution by the DRC after the change in government and that Dutch officials traveled there to collect evidence).

169 Writing about universal jurisdiction prosecutions, Langer notes:

Of the 32 defendants who have been brought to trial, 24—amounting to three-quarters of all defendants tried under universal jurisdiction—have been Rwandans, former Yugoslavs, and Nazis. These are defendants about whom the international community has broadly agreed that they may be prosecuted and punished, and whose state of nationality has not defended them.

Langer, supra note 158, at 9. Sala v. Kabarebe was a case that Rwanda apparently did oppose. See supra note 162. Afghan and Congolese defendants were also not defended by their states of nationality. Langer, supra note 158, at 9, 23-24.

170 In a Dutch case against Hesammudin Hesa, a former Afghan military official accused of war crimes for conduct beginning in 1979 and lasting into the 1980s, Hesa sought asylum in the Netherlands. There is no indication that Afghanistan objected to his trial there in 2005. An English translation of the 2008 Netherlands Supreme Court judgment is available at http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=BG1476. For other similar cases in which it appears that Afghanistan did not object to the prosecution of its nationals, see those of Habibullah Jalalzoy, at http://www.haguejusticeportal.net/index.php?id=6419 (convicted), and Abdullah Faqirzada, at http://www.asser.nl/default.aspx?site_id=36&levell=152488devel2=&level3=&textid=39801 (acquitted). see also Langet, supra note 158, at 9, 16-17.

171 In Cavallo, the Mexican Supreme Court held that Cavallo, a former Argentine naval officer, could be extradited to Spain based on crimes he allegedly committed in Argentina. Apparently, the Mexican Foreign Ministry assertively supported extradition, even for the torture-related charges that the Mexican Supreme Court rejected on statute of limitations grounds. It is unclear what role, if any, immunity played in the case; the Court apparently did not consider any jurisdictional issues (which may have included immunity) because the extradition treaty did not permit it to do so. See Benavides, Luis, Introductory Note to Supreme Court of Mexico: Decision on the Extradition of Ricardo Miguel Cavallo, 42 ILM 884 (2003)Google Scholar; Decision on the Extradition of Cavallo, Ricardo Miguel (Supreme Court of Mexico June 19, 2003), 42 ILM 888 (2003 Google Scholar). Cavallo was extradited to Spain, which then returned him to Argentina for trial—suggesting that Argentina continued to contest jurisdiction, although it generally favored his prosecution. See Kaleck, Wolfgang, From Pinochet to Rumsfeld: Universal Jurisdiction in Europe 1998-2008, 30 Mich. J. Int’l L. 927, 956 (2009 Google Scholar). The Scilingo trial in Spain may also serve as example. A retired Argentine military captain was tried in Spain for atrocities committed in Argentina. It is the only universal jurisdiction case in Spain to go to trial. It does not appear that immunity played a role in the case, perhaps because Argentina supported the case by the time it went to trial in 2003. See Langer, supra note 158, at 34 (noting that originally Argentina refused to provide evidence but thereafter began to support the case in Spain). One report said Argentina and Spain “work[ed] together” to bring the case to trial. Marcela Valente, First Trial for Genocide Set to Begin in Spain, Other News, Jan. 20, 2005, at http://other-news.info/index.php?p=15.

172 Chad did not raise immunity on behalf of its former president Hissène Habré when he faced indictment in Belgium. Human Rights Watch, Chad Lifts Immunity of Ex-dictator (Dec. 6, 2002), at http://www.hrw.org/news/2002/12/05/chad-lifts-immuniry-ex-dictator. Belgium has sought to extradite Habré from Senegal, where he may also face charges. See Hessbruegge, Jan Arno, Ecowas Court Judgment in Habré v. Senegal Complicates Prosecution in the Name of Africa, ASIL Insights (Feb. 3, [2011]Google Scholar), at http://www.asil.org/insightsl10203.cfm. The ICJ has held that Senegal must extradite or prosecute Habré without further delay. Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.) (Int’l Ct. Justice July 20, 2012).

173 Fisheries, supra note 151, at 116, 138-39.

174 Id. at 136-39 (emphasizing that Norway framed its claim to the fisheries in terms of international law and that the United Kingdom did not object). Here, the assertion of jurisdiction is not necessarily a claim with respect to the legal unavailability of immunity, and the state that fails to object may have no reason to think it is engaging in state practice with respect to immunity.

175 See infra notes 194-200.

176 S.S. Lotus, supra note 113, at 28. In the Nottebohm case, by contrast, the ICJ reasoned:

[T]he practice of certain States, which refrain from exercising protection in favour of a naturalized person when the latter has in fact severed his links with what is no longer for him anything but his nominal country, manifests the view that, in order to be invoked against another State, nationality must correspond with a factual situation.

Nottebohm (Liech. v. Guat.), 1955 ICJ Rep. 4, 22 (Apr. 6). This reasoning would support using cases in which immunity is not invoked as evidence of state practice and opinio juris that immunity is no longer legally available. The Court’s reasoning in Nottebohm has been widely criticized, and this aspect of the opinion has been characterized as dicta. See Kunz, Josef L., The Nottebohm Judgment (Second Phase), 54 AJIL 536, 540 (1960)Google Scholar; Sloane, Robert D., Breaking the Genuine Link: The Contemporary International Legal Regulation of Nationality, 50 Harv. Int’l L. J. 1, 17-24 (2009 Google Scholar).

177 Certain Questions of Mutual Assistance in Criminal Matters, supra note 83, para. 195 (noting that immunity can be invoked through diplomatic exchanges).

178 See Foakes, supra note 10 at 3, 10-11 (emphasizing difficulties in characterizing the cases and describing the many reasons that prosecutions may not go forward or that states may not invoke immunity, including that “internal disorder may have meant that the home state was not in a position to assert immunity or to object to the proceedings on those grounds”).

179 Fox, supra note 10, at 20-21.

180 Cassese, supra note 148, at 437.

181 H.S.A. v. S.A., Cour de Cassation, Feb. 12, 2003, No. P.02.1139.F, 42Ilm 596, 599-600 (2003) (granting immunity to Sharon and allowing case to go forward against Yaron, but not clearly explaining why).

182 Cassese, supra note 148, at 444.

183 Ratner, Steven R., Belgium’s War Crimes Statute: A Postmortem, 97 AJIL 888, 889 (2003 Google Scholar).

184 Cassese, supra note 148, at 438.

185 See Interview by Manfred Gerstenfeld with Irit Kohn, Israeli Ministry of Justice (Sept. 5, 2007), at http://missioneuropakmartell.files.wordpress.com/2008/05/jcpac2a0about-jcpa-the-suit-against-sharon-in-belgium_-a-case-an.pdf. Kohn was part of the Israeli defense team. She describes Israel’s arguments against universal jurisdiction. Among other things, Israel had already fully investigated the alleged crimes, and the Belgium courts were ill suited to adjudicate them. She notes that the case against Sharon was dismissed on immunity grounds, but it does not appear that Israel raised this issue: “Independently of our case the question of immunity came up. There had been a decision by the International Court of Justice in The Hague in a case that involved Belgium and the Congo.”

186 Cf. supra note 120.

187 Cassese, supra note 148, at 438.

188 See van der Oije, Pita J. C. Schimmelpenninck, A Surinam Crime Before a Dutch Court: Post-colonial Injustice or Universal Jurisdiction, 14 Leiden J. Int’l L. 455, 456-57 (2001)CrossRefGoogle Scholar (describing the case). Today he is president

again. See Romero, Simon, Returned to Power, a Leader Celebrates a Checkered Past, N.Y. Times, May 3, 2011 Google Scholar, at A4 (describing Bouterse’s return to power).

189 In re Bouterse, Hof Amsterdam Nov. 20, 2000, Nj 2001, 51, para. 54, Eng, trans, at 2001 Neth. Y.B. Int’l L. 266, 277; aff’d HR, Sept. 18, 2001, NJ 2002, 59, Eng. trans, at 2001 Neth. Y.B. Int’l L. 282.

190 Amnesty International, Suriname: After 25 Years, a Chancefor Accountability and Justice for the Families of Victims of the December 1982 Extrajudicial Killings (2007), at http://www.amnesty.org/en/library/info/Amr48/001/2007/en.

191 See Zegveld, L., The Bouterse Case, 2001 Neth. Y.B. Int’l L. 97, 105-09Google Scholar.

192 See Citroni, supra note 116.

193 See Council of the European Union, The Eu-Au Expert Report on the Principle of Universal Jurisdiction, para. 17, Doc. 8672/1/09 (Apr. 16, 2009) (referring to legislation in the Democratic Republic of Congo, Niger, and South Africa). The South African law cited in support states only that official capacity does not provide a defense to the crime; it does not mention immunity. Implementation of the Rome Statute of the International Criminal Court Act, 2002 No.27, §4(2)(a)(S.Afr.), available http://www.info.gov.za/gazette/acts/2002/a27-02.pdf. Belgian law explicitly limits application of its universal jurisdiction statute based on the international law of immunity “derived from a person’s official capacity.” See Belgium’s Amendment to the Law of June 15, 1993 (as Amended by the Law of February 10, 1999) Concerning the Punishment of Grave Breeches of Humanitarian Law, Apr. 23, 2003, 42 Ilm 749, 755 (2003). Dutch law excludes criminal prosecution of “foreign heads of state, heads of government and ministers of foreign affairs, as long as they are in office, and other persons in so far as their immunity is recognised under customary international law.” Although this provision might be read as denying immunity to high-level officials once they are out of office, the Dutch Parliament rejected proposed amendments to the statute that would have made that explicit. Boot-Matthijessen, M. & van Eist, R., Key Provisions of the International Crimes Act 2003, 2004 Neth. Y.B. Int’l L. 251, 286Google Scholar (citing International Crimes Act [Wet Internationale Misdrijven], Art. 16, June 19, 2003, Stb. 2003, 270). The Torture Victim Protection Act (28 U.S.C. § 1350 note), a U.S. statute, is sometimes interpreted as implicitly lifting immunity in cases for which it creates a cause of action. See Bradley, Curtis A. & Goldsmith, Jack L., Pinochet and International Human Rights Litigation, 97 Mich. L. Rev. 2129, 2156-57 (1999 CrossRefGoogle Scholar) (considering and rejecting this argument).

194 MacGibbon, supra note 141, at 118.

195 Lauterpacht, Hersch, The Problem of Jurisdictional Immunities of Foreign States, 1951 Brit. Y.B. Int’l L. 220, 221Google Scholar.

196 Lauterpacht details over sixty years of state practice from Austria, Belgium, Egypt (Mixed Courts), France, Germany, Greece, Holland, Ireland, Italy, Latin-American states, Poland, Romania, Russia, Scandinavian states, Switzerland, the United Kingdom, and the United States. Id. at 250-72.

197 See, e.g., id. at 251 (Italian court rejecting immunity claimed by Greece), 252 (Italian court rejecting Russia’s plea of immunity), 253 (Italian court accepting the British Consul’s intervention based on immunity), 255 (Egyptian Mixed Courts assuming jurisdiction, notwithstanding the Palestine State Railways Administration’s plea of immunity; Commercial Tribunal of Alexandria rejecting claim of immunity by Spanish state organ), 257-58 (Swiss court denying plea of immunity by Austrian Treasury), 260 (French court declining to grant immunity to the Romanian government), 261 (French court rejecting Soviet plea that the act in question was sovereign in nature and thus entitled to immunity; French commercial court declining jurisdiction when Dutch ambassador represented that government vessel was on a political mission), 262 (France apparently asserting immunity on behalf of Norway; French court accepting plea of immunity by Morocco), 268 -70 (discussing U.S. cases in which immunity was invoked and analyzed), 270-72 (discussing Uk cases in which immunity was invoked and analyzed).

198 See Akande & Shah, supra note 8, at 852 (linking an exception to immunity to jurisdiction in criminal and civil cases, and noting that their approach leads to different results than the normative hierarchy or not-official- conduct approaches); see also supra note 98.

199 National court decisions serve not just as evidence of international custom but also as a “subsidiary means for the determination of rules of law.” Statute of the International Court of Justice, supra note 99, Art. 38(l)(d); see also Roberts, Anthea, Comparative International Law? The Role of National Courts in Creating and Enforcing International Law, 60 Int’l & Comp. L.Q. 57 (2011 CrossRefGoogle Scholar). They cannot serve the latter function if they say nothing about what the rules of law are.

200 See Franck, Thomas M., The Power of Legitimacy Among Nations 5066 (1990 Google Scholar).

201 See David J. Bederman, Custom as a Source of Law 149 (2010).

202 Henkin, supra note 102, at 53-61; Charney, supra note 146, at 531; Bradley, Curtis A. & Gulati, Mitu, With drawing from International Custom, 120 Yale L. J. 202, 214 (2010)Google Scholar. Note, however, that the persistent-objector rule, which allows a state to opt out of custom while it is forming, may reflect the need for consent from individual states. Weil, Prosper, Towards Rehtive Normativity in International Law?, 77 AJIL 413, 434 (1983)CrossRefGoogle Scholar.

203 Charney, supra note 146, at 531-32; MacGibbon, supra note 141, at 135-38; see also Guzman, supra note 111, at 143-44.

204 Dodge, William S., Withdrawing from Customary International Law: Some Lessons from History, 120 Yale L.J. Online 169, 169-70 (2010)Google Scholar, at http://yalelawjournal.org/the-yale-law-journal-pocket-part/international-law/withdrawing-from-customary-international-law:-some-lessons-from-history/; Henkin, supra note 102, at 57; Charney, supra note 146, at 541-43; Guzman, supra note 111, at 117.

205 Kelly rejects this jump. Kelly, supra note 147, at 473.

206 Charney, supra note 146, at 541-43.

207 Roberts, supra note 15, at 758; Henkin, supra note 102, at 58.

208 Roberts, supra note 15, at 758; Charney, supra note 146, at 543-44; Bradley & Goldsmith, supra note 15, at 838-42; Chodosh, Hiram E., Neither Treaty nor Custom: The Emergence of Declarative International Law, 26 Tex. Int’l L. 87, 102 (1991 Google Scholar).

209 See Criddle & Fox-Decent, supra note 44, at 339-42.

210 Weisburd, Arthur M., Customary International Law: The Problem of Treaties, 21 Vand. J. Transnat’L L. 1 (1988)Google Scholar; D’Amato, Anthony, Trashing Customary International Law, 81 AJIL 101 (1987)CrossRefGoogle Scholar.

211 Charney, supra note 146, at 537; Theodor Meron, Human Rights and Humanitarian Norms As Customary Law 810 (1989).

212 Roberts, supra note 15, at 764; Charney, supra note 146, at 537.

213 Military and Paramilitary Activities in and Against Nicaragua (Nicar.v. U.S.), 1986ICJ Rep. 14 (June 27); see Filártiga v. Peña-Irala, supra note 148, at 882.

214 Some evidence from subsidiary sources suggests that there is a human rights exception. The Institute of International Law, for example, has declared that functional immunity should be unavailable in criminal cases alleging violations of international criminal law. Institut de droit international, Resolution on the Immunity from Jurisdiction of the State and of Persons Who Act on Behalf of the State in Case of International Crimes (2009), al http://www.idi-iil.org/idiE/resolutionsE/2009_naples_0l_en.pdf. According to its website, see http://www.idi-iil.org/idiE/navig_history.html, the institute was created to be “independent of any governmental influence.” The appeals chamber of the International Criminal Tribunal for the Former Yugoslavia reasoned in dicta that exceptions to functional immunity for state officials “arise from the norms of international criminal law prohibiting war crimes, crimes against humanity and genocide. Under these norms, those responsible for such crimes cannot invoke immunity from national or international jurisdiction even if they perpetrated such crimes while acting in their official capacity. . . .” Prosecutor v. Blaškić, Case No. It-95-14, Appeals Chamber, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber Ii of 18 July 1997, para. 41 (Oct. 29, 1997).

215 Rome Statute, supra note 45, Art. 27(2).

216 Charter of the International Military Tribunal, Art. 7, Aug. 8, 1945, 59 Stat. 1544, 82 UNTS 279; see also Affirmation of the Principles of International Law Recognized by the Charter of the Nuremburg Tribunal, GA Res. 95(1), UN Doc. A/64/Add.l (Dec. 11, 1946); Convention on the Prevention and Punishment of the Crime of Genocide, Art. 4, opened for signature Dec. 9, 1948, 102 Stat. 3045, 78 UNTS 277 (entered into force for the United States Nov. 4, 1988) (similar language); Cassese, supranote 148, at 448 (listing other international instruments that foreclose an official-capacity defense).

217 International Military Tribunal (Nuremberg): Judgment and Sentences (Oct. 1, 1946), 41 AJIL 172, 221 (1947) [hereinafter Judgment and Sentences].

218 Arrest Warrant of 11 April 2000, supra note 5, para. 58.

219 Rome Statute, supra note 45, Art. 27; see also Immunity of State Officials from Foreign Criminal Jurisdiction, supra note 10, para. 83 (discussing similar language in the ILC’s Draft Code of Crimes Against the Peace and Security of Mankind and noting that the draft code’s language preventing an individual from invoking his official position to avoid responsibility does not address “removal of procedural immunity from domestic judicial process”); id., para. 82 n.186 (noting that “judicial proceedings before an international criminal court would be the quint essential example of appropriate judicial proceedings in which an individual could not invoke any substantive or procedural immunity based on his official position to avoid prosecution and punishment”); Fox, supra note 10, at 676-77 (distinguishing immunity from official-capacity defense). For an argument that Article 7 of the Charter pertains to functional, but not personal, immunity, see Gaeta, Paola, Official Capacity and Immunities, in I the Rome Statute of the International Criminal Court: A Commentary 975 (Cassese, Antonio, Gaeta, Paola & Jones, John R. W. D. eds., 2002 Google Scholar).

220 Jurisdictional Immunities of the State, supra note 5, paras. 81-91.

221 Kelsen, Hans, The Legal Status of Germany According to the Declaration of Berlin-, 39 AJIL 518, 520 (1945 CrossRefGoogle Scholar).

222 Fox, supra note 10, at 677.

223 Judgment and Sentences, supra note 217, at 221.

224 Id. at 216.

225 Convention Against Torture, supra note 30, Art. 7.

226 See Akande & Shah, supra note 8, at 841-42.

227 It might also apply to other treaties that have an extradite-or-prosecute requirement, but the argument is not as strong when the offense is not limited to official conduct. See id.

228 van der Wilt, Harmen, Universal Jurisdiction Under Attack: An Assessment of African Misgivings Towards International Criminal Justice as Administered by Western States, 9 J. Int’l Crim. Just. 1043, 1048-49 (2011)CrossRefGoogle Scholar; Robinson, Darryl, Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court, 14 Eur. J. Int’l L. 481, 491-92 (2003)CrossRefGoogle Scholar.

229 See, e.g., Ellis, Mark S., Combating Impunity and Enforcing Accountability as a Way to Promote Peace and Stability—the Role of International War Crimes Tribunah, 2 J. Nat’L Security L. & Pol’y 111, 162-64 (2006 Google Scholar).

230 The Restatement (Third) of the Foreign Relations Law of the United States, supra note 11, §702, lists seven human rights norms protected by customary international law and notes that the list is not necessarily complete.

231 See Ratner, Steven R., New Democracies, Old Atrocities: An Inquiry in International Law, 87 Geo. L.J. 707, 711-17, 726-32 (1999)Google Scholar (tracing the development of individual accountability for human rights abuses but arguing that customary international law imposes no obligation on states to hold violators accountable).

232 Akande & Shah, supra note 8, at 840-49.

233 Roberts, supra note 15, at 764-65 (discussing the moral foundation of modern customary international law) ; Wedgwood, Ruth, Augusto Pinochet and International Law, 46 McGill L.J. 241, 244-48 (2000)Google Scholar (discussing Pinochet in normative and moral terms); von Verdross, Alfred, Forbidden Treaties in International Law: Comments on Professor Garner’s Report on “The Law of Treaties,” 31 AJIL 571 (1937)CrossRefGoogle Scholar (discussing peremptory norms in International law in ethical terms).

234 Roberts, supra note 15, at 790.

235 Jurisdictional Immunities of the State, supra note 5, paras. 55, 73, 77, 85.

236 See Mendelson, Maurice, The Subjective Element of Customary International Law, 1995 Brit. Y.B. Int’l L. 177, 204-08Google Scholar.

237 Langer, supra note 158, at 3, 6-9.

238 See, e.g. , Boot-Matthijessen & van Eist, supra note 193, at 288-89 (noting the Dutch government’s unclear position on whether international crimes are acts committed in an official capacity for the purposes of immunity); cf. Koh, supra note 17, at 1154 (“A government official’s legitimate authority has not generally been thought to encompass a right to commit Official acts’ that violate both international and domestic law.”).

239 See Koh, supra note 17, at 1152.

240 Letter from Jack B. Tate, Acting Legal Adviser, to Philip B. Perlman, Acting Attorney General, supra note 35.

241 See supra text accompanying notes 127-33.

242 Council of the European Union, The Au-Eu Expert Report on the Principle of Universal Jurisdiction, paras. 37, 42, Doc. 8672/1/09 Rev 1 (2009) (elaborating on African concerns with European universal jurisdiction prosecutions, including immunity); Kelly, Tobias, Why are others always Guilty of Torture?, Aljazeera, Nov. 8, 2011Google Scholar, at http://www.aljazeera.com/indepth/opinion/2011/11/2011115124650315926.html. Arrest Warrant of 11 April 2000, supra note 5, at 91, para. 9 (Sep. Op. Rezek, J.).

243 Some state delegations appeared prepared to accept a human rights exception to immunity in criminal cases, whereas others did not. Compare UN Gaor 6th Committee, 66th Sess., 26th mtg., Agenda Item 81, paras. 14-18, UN Doc. A/C.6/66/Sr.26 (Dec. 7, 2011) (Stuerchler Gonzenbach, Switzerland), with id., paras. 66-72 (Jannsens de Bisthoven, Belgium); see also Wilmshurst, Elizabeth, Prosecuting Former Heads of State for International Crimes 8 (2011)Google Scholar (meeting summary: remarks of Georg Nolte describing the Sixth Committee debate in October 2011), at http://www.chathamhouse.org/sites/default/files/public/Research/International%20Law/24l111 prosecuting.pdf.

244 Jurisdictional Immunities of the State, supra note 5, para. 52 (quoting Corfu Channel (UK v. Alb.), 1949 ICJ Rep. 4, 22 (Apr. 9)); see id., paras. 55, 73, 77, 85; see also id., Sep. Op. Koroma, J., para. 10; id., Sep. Op. Keith, J., para. 3.

245 Aceves, supra note 8, at 169; cf. Knop, Karen, Here and There: International Law in Domestic Courts, 32 N.Y.U. J. Int’l L. & Pol. 501, 522 (2000)Google Scholar (noting that some of the academic writing on the use of international law in domestic courts may be driven by a sense of “unexamined American benevolence”).

246 See Roth, Brad R., Coming to Terms with Ruthlessness: Sovereign Equality, Global Pluralism, and the Limits of International Criminal Justice, 8 Santa Clara J. Int’l L. 231, 235, 285-86 (2010)Google Scholar.

247 See supra text accompanying notes 125-30; See also Strafanzeige gegen Jiang Zemin, supra note 128, at 2 (analyzing the immunity of a former president but not lower-level officials; cases against the latter were dismissed on jurisdictional grounds instead of immunity).

248 See, e.g. , Fox, supra note 10, at 52, 695; Richard J. Wilson, Argentine Military Officers Face Trial in Spanish Courts, Asil Insights (Dec. 2003), at http://www.asil.org/insigh122.cfm.

249 Jones, supra note 5, paras. 89-93 (Lord Hoffmann). The Committee Against Torture has also suggested that conferring immunity in civil damages cases may be inconsistent with the Convention. See Bradley & Heifer, supra note 4, at 241 n.142.

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