Freeland, Steven --- "Prosecuting Heads of State" [2009] ALRS 25

Last Updated: 25 July 2010

Prosecuting Heads of State

Professor Steven Freeland, School of Law, University of Western Sydney

Introduction

On 3 March 2009, Pre-Trial Chamber I (PTC) of the International Criminal Court (ICC) issued an arrest warrant for President Omar Al Bashir, the current Head of State of Sudan, having concluded that there were reasonable grounds to believe that he is criminally responsible for five counts of crimes against humanity and two counts of war crimes. This represents the first time that the ICC has indicted a sitting Head of State and marks an important development in the activities of the Court.

In handing down its decision, the Chamber (by a 2-1 majority) concluded that, at this stage, there were not reasonable grounds to also include charges of genocide, although it left open the possibility for the Prosecutor to submit further evidence in the future to support such a charge. At the time of writing this article, the PTC decision is the subject of an appeal to the Appeals Chamber of the ICC.

At the time, the PTC decision was met with a mixture of strong support from large sections of the international community and disappointment from various Arab and African countries and from a number of aid agencies. Indeed, a few days after the PTC decision, the Government of the Sudan expelled 13 humanitarian international NGOs and three local NGOs from Darfur on the grounds that they had communicated information to the ICC. No doubt, actions such as these will only further exacerbate the suffering of the people in the Darfur region. President Bashir remains defiant in the face of the arrest warrant and has vowed that Sudan will not cooperate with the ICC in respect of the charges against himself, as well as those in relation to arrest warrants previously issued by the ICC against two other Sudanese nationals.

Meanwhile, the member States of the African Union (AU) have resolved not to cooperate with the ICC in respect of the arrest and surrender of President Bashir to the ICC. In addition, both the AU and the Organization of Islamic States have made several representations to the United Nations Security Council (UNSC), asking that it defer the work of the ICC in Darfur (the UNSC has the power to defer investigations / prosecutions under article 16 of the Rome Statute of the International Criminal Court (Rome Statute)).

These events highlight once again the complications associated with the more recent trend under criminal law of prosecuting Heads of State, both at the international but also at the national level. There is no doubt that this is a complex issue, which raises many questions and has many dimensions, some of which are discussed below.

Issues associated with Prosecuting Heads of State

Historical Dimensions

Contrary to assertions made by some commentators, the prosecution of a Head of State is certainly not without precedent. In 1642, Charles I of England was tried and sentenced to death for various ‘crimes’ he had perpetrated while King. This was the first time that a (former) Head of State was prosecuted in a court of law in relation to (alleged) crimes committed while in such a position. (When asked how he would plead, Charles stated that he did not recognize the legitimacy of the court – this was then regarded as a plea of ‘guilty’. This should be contrasted with more recent prosecutions – Slobodan Milosevic also stated that he did not recognize the legitimacy of the War Crimes Tribunal for the Former Yugoslavia, but this was deemed by the Tribunal to constitute a plea of ‘not guilty’).

At the conclusion of the First World War, the Treaty of Versailles provided for the prosecution of persons accused of having committed acts in violation of the laws and customs of war. More specifically, the Allied and Associated Powers publicly arraigned William II of Hohenzollern, formerly the German Emperor, ‘for a supreme offence against international morality and the sanctity of treaties’, although some commentators argued at the time that this proposed trial lacked a firm legal basis. Nonetheless, the Treaty of Versailles provided for a special international tribunal to be constituted, comprising Judges from the United States of America, Great Britain, France, Italy and Japan, to try the Emperor.

However, by the time the Treaty of Versailles was in force, the Emperor had already sought refuge in the Netherlands, which did not agree to surrender him for prosecution, on the basis that the Netherlands regarded itself as a land of refuge for the vanquished in international conflicts. A trial in absentia was considered to be futile, and, as a result, the international tribunal was not established and the proposed trial never took place.

This situation changed following the end of the Second World War. International Military Tribunals were established in Nuremberg (the Nuremberg Military Tribunal) and Tokyo (the Tokyo Military Tribunal) by the victorious powers. The agreement among the Allies to establish these Tribunals to try senior military and political leaders from the defeated German and Japanese war-time regimes only came late in the piece. The Allies, with the exception of the United States, had initially been of the opinion that an international judicial process was not appropriate. This was only partially due to the fact that such an approach was largely unprecedented; it also stemmed from their more ‘extreme’ views as to how such persons should be brought to account. The British Government had, for example, instituted a formal policy of ‘summary execution’ of enemy leaders in 1943, which remained in place until the end of the war. In the end, however, the viewpoint of the United States – that a transparent international judicial process was the most appropriate mechanism to deal with such persons – prevailed, and these Tribunals were established with a mandate and procedural framework that largely reflected western notions of justice.

At Nuremberg, senior Government officials were put on trial. There is little doubt that, had he survived the war, Hitler himself would have also been brought before this legal process. The situation was somewhat different in the Tokyo Military Tribunal where, essentially for political reasons, the decision was made not to indict Emperor Hirohito. Some commentators have gone so far as to argue that the failure to charge the ultimate Head of State in that case has given rise to the perception that Japan has never really ‘come to terms’ with its actions during the war.

A number of important and fundamental principles of international criminal justice emerged from the jurisprudence of these International Military Tribunals. Moreover, what was perhaps most striking about this entire process, particularly when compared to any earlier practical attempts to criminalize acts committed during warfare, was that these Tribunals applied international law doctrines and concepts to judge the acts of those accused of such crimes. Although they were not in identical terms, the respective Charters of these two Military Tribunals specified the definitions of a number of ‘international crimes’. These were very significant steps in the development of international criminal justice, including for crimes committed by Heads of States. Yet, with the advent of the Cold War in the 1940s, a ‘black’ period followed, in which a culture of impunity prevailed (see below).

However, the situation has changed dramatically since the early 1990s. At that time, the shackles of the Cold War were loosened, and the UNSC was able to play a more active role in addressing these crimes, albeit after the fact. The world saw the creation of new international criminal Tribunals. Faced with genocides in Rwanda and in the Former Yugoslavia – both of which took place under the watch of the UNSC and United Nations peacekeepers – the UNSC, acting under its powers pursuant to Chapter VII of the United Nations Charter, eventually established two ad hoc Tribunals to prosecute the perpetrators of serious crimes committed during those conflicts. Various other international and ‘internationalized’ criminal Tribunals and Courts have subsequently also been established by the international community over the past decade.

Thus, the past 15 years has been marked by the development of a diverse range of mechanisms intended to address international crimes and promote and protect fundamental human rights, specifically in response to both international and (increasingly) internal conflicts. The establishment and operation of these various mechanisms of international justice - commencing with the ad hoc International Criminal Tribunal for the Former Yugoslavia (established in 1993) and culminating (thus far) with a permanent Court, the ICC - marks a landmark shift in international legal regulation and jurisdiction, from an era of impunity towards a recognition of the need for legal accountability for the most serious crimes of concern to the international community as a whole.

The underlying element in this evolving process of the ‘internationalization’ of justice is the widely expressed determination of the international community to ‘put an end to impunity for the perpetrators of these crimes’. This is predicated on two key elements. The first of these is the establishment of these various international and internationalized legal mechanisms as a means of contributing to the prevention of such crimes in the future. Each of these Tribunals /Courts involves differing structures and jurisdictional mandates, depending upon the particular circumstances involved. Yet, as is noted below, each allows for the prosecution of Heads of State where appropriate.

The development of these mechanisms co-exists with the other important element in this process of internationalization. As the international system of criminal justice evolves, national governments can no longer ignore the moral imperative to recognize these crimes within their own domestic legal systems. Over 60 parties to the Rome Statute, including Australia, have recently ‘upgraded’ their domestic criminal codes to ensure that their national courts have competence and jurisdiction in relation to the crimes of genocide, war crimes and crimes against humanity, as defined in the Rome Statute. In many cases, this in itself represents a very significant step forward in the reinforcement of fundamental international legal norms. Moreover, some countries are currently considering extending their domestic laws even further, in order to provide for universal jurisdiction within their national criminal justice legal system.

Among many things, one very important consequence of this process has been with respect to the accountability of Heads of State. International criminal justice is principally directed towards those ‘most responsible’ for the commission of gross violations of human rights. In many cases, these crimes could never have been perpetrated without the support, organization and resources of the State itself – lead by a Head of State.

Indeed, over recent years, whereas Heads of State would have once regarded themselves as above the law, this is no longer the case. Some examples include; Augusto Pinochet (Chile), Jean Kambanda (Rwanda), Slobodan Milosevic (Serbia), Saddam Hussein (Iraq), Alberto Fujimori (Peru), Charles Taylor (Liberia), Hissene Habre (Chad) and Radovan Karadzic (Serbian Republic of Bosnia-Herzegovina, renamed Republika Srpska). No doubt other leaders are currently within the sights of the mechanisms of international justice.

While each of these processes have had varying degrees of ‘success’ – part of the evolution of this process requires appropriate procedural safeguards to ensure an absolutely fair trial (which has not always been carried through in practice) - the point is that it would have been unthinkable even 15 years ago that leaders or former leaders such as these would ever have faced trial in such a public forum.

It is therefore important to recognize that the particular case with which ICC is currently involved – that of President Bashir of Sudan - is not unique. On the contrary, there is an undeniable and irreversible trend towards recognizing and facilitating the accountability of Heads of State and prosecuting them in appropriate circumstances. The culture of absolute impunity that had prevailed for decades no longer exists.

Philosophical Dimensions

All of these developments follow from the answers that have emerged to a fundamental philosophical question: should a Head of State be held criminally responsible for actions done as a leader? How does this fit in with the basic principles of Head of State immunity that have long been recognized at international law? More fundamentally, what is the basis for the criminal responsibility of a Head of State, since he/she should perhaps be regarded simply as the practical representation of an abstract entity known as the State, and is recognized as representative of State solely by virtue of his/her office? Does the prosecution of a Head of State in reality equate to an assumption of collective guilt?

Whilst at first glance these may seem like vexing questions, the approach that has emerged is both entirely logical and surprisingly simple. International criminal law has, at least thus far, developed on the basis that individuals (rather than States) commit crimes. The prosecution of an individual, no matter what his/her official capacity may be, relates to the actions of that person. Despite the claims of some Heads of State who have faced courts of law, it is not a trial of the State or even particular elements of the community, but rather a question of the guilt or innocence of the individual(s) facing the charges.

In relation to the commission of international crimes, the judgment of the Nuremberg Military Tribunal represents the traditional view in this regard, rejecting as it did the argument submitted by the accused that individuals could not be held responsible for ‘acts of state’. In an oft-quoted passage, the Nuremberg Military Tribunal stated:

... that international law imposes duties and liabilities upon individuals as well as upon States has long been recognized ... Crimes against international law are committed by men, not abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced ...

Legal Dimensions

As noted above, general principles of international law recognize a well established principle of Head of State immunity. However, like much of international law, this principle continues to evolve in reaction to changing circumstances and approaches to international crimes. In the Arrest Warrant Case, the International Court of Justice made it clear that, to the extent that Head of State immunity from jurisdiction did apply to incumbent State officials (in that case a Foreign Minister), this did not amount to impunity in respect of any crimes they may have committed.

Moreover, in the House of Lords decision in Pinochet, several of the Law Lords expressed the strong (and in my opinion correct) view that there are certain actions – for example torture - perpetrated by individuals in the position of a Head of State that could never be regarded as something to which Head of State immunity would apply.

Both of these cases involved situations where one State was attempting to prosecute a senior official or Head of State from another State. It is in this context that the concept of Head of State immunity had emerged in the first place, as a consequence of the respect for a State’s sovereignty. Even then, these cases illustrate that this principle would not represent an absolute bar to such prosecution.

The position is, if anything, even more straightforward in the case of the prosecution of a Head of State by an international / internationalized criminal Tribunal or Court. Here, the reciprocal basis for State sovereignty is not applicable. Any notion of Head of State immunity is simply not relevant, given the express mandate that these institutions have been given.

In December 1946, the United Nations General Assembly (UNGA) affirmed the principles of international law recognized by the Nuremberg Military Tribunal and used in its judgment, and directed the United Nations International Law Commission (ILC) to formulate those principles for the purposes of codification. The ‘Nuremberg Principles’ were adopted by the ILC and presented to the UNGA in 1950. They were soon considered to reflect customary international law. Principle III provides that:

[t]he fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible government official does not relieve him from responsibility under international law.

This has been mirrored in respective Statutes of most of the international / internationalized Tribunals and Courts. In the case of the ICC, article 27 of the Rome Statute provides as follows:

1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

Furthermore, the gradual development of concepts such as command responsibility and joint criminal enterprise in the jurisprudence of the ad hoc international criminal Tribunals makes it possible for persons to be directly prosecuted for committing the relevant crimes (as opposed to, say, aiding and abetting the commission) even though they may have not ‘pulled the trigger’ – which will typically be the case of a Head of State.

Political Dimensions

As mentioned above, the issue of prosecuting Heads of State is a highly sensitive one and, by its very nature, is heavily influenced by politics. Despite the (generally) positive steps made by the Nuremberg Military Tribunal (in particular) and the Tokyo Military Tribunal regarding the formulation of principles of international criminal law and the foundations towards a process of judicial accountability at the international level – including for Heads of State - it would take almost 50 years until the next international criminal Tribunals were to be established.

Instead, the spectre of Realpolitik emerged, as the onset of the ‘Cold War’ meant that it was no longer possible for the international community to find the common will to build upon the foundations laid by the Nuremberg and Tokyo Military Tribunal processes. There were also other very strong political forces at work, as States sought to cling to the international law principle of non-intervention, as specified in article 2(7) of the United Nations Charter.

It was thus that an era of impunity for the perpetrators of these international crimes took hold, which would not be challenged to any significant degree until after the fall of the Berlin Wall in November 1989. Atrocities took place in countries around the globe during this period – including in the Soviet Union, Uganda, Nigeria, Argentina, Bangladesh, East Timor, Algeria, Cambodia and Iraq to name but a few examples. However, none of these were either investigated to any significant degree, let alone punished, by a court of law. Indeed, it has been estimated that approximately 170 million people were killed during the period 1945 to 1990, with little if any accountability. In certain respects, it was as if the important treaties developed during this time, such as the 1948 Genocide Convention, were treated as an end in themselves - sitting on the shelf - with little tangible action to address these gross violations of human rights in a practical sense.

There were only relatively minor steps taken in this regard by the international community during this lengthy period of (virtual) inaction. A treaty was finalized specifying that statutory limitations under national law were inappropriate and should not be applicable to war crimes and crimes against humanity. Yet, there was an almost total lack of political will by most countries to prosecute, within their respective national court systems, individuals suspected of committing such crimes. The prosecution and subsequent conviction of Otto Adolf Eichmann by the Israeli District Court in 1961 (affirmed by the Israeli Supreme Court in the following year) was one of the very few exceptions to this failure to act.

Even where discussions had commenced during this period, the results were slow and the implementation of ‘delayed justice’ has been highly unsatisfactory. This is illustrated by the situation in Cambodia, where a criminal prosecution process has only recently begun in relation to the ‘killing fields’ of the mid-1970s (a timeframe that, by analogy, would have seen the Nazi war leaders prosecuted only in 1975). In the meantime, a whole generation of Cambodians have been born, many of whom have been lead to believe that the genocide perpetrated by the Khmer Rouge was instead committed by the Vietnamese or the Chinese – misinformation that has been encouraged by the current Government, many of whom are former Khmer Rouge cadres. Equally disconcerting are the reports that have emerged of corruption and Government influence that are further hindering the work of the internationalized Tribunal that was finally established.

Practical Dimensions

Of equal significance, and perhaps the most challenging of all, are the practical issues associated with a prosecution of a Head of State, particularly an incumbent, or one that still retains heavy local support among elements within his/her State even when no longer in power. How can any indictment / arrest warrant be executed in these circumstances? Who is going to take responsibility for the actual arrest of the individual and his/her surrender to the relevant Tribunal / Court?

These questions become even more complex if the legal process has been implemented in the context of an ongoing conflict within the relevant State. This gives rise to the very difficult issue of what some have referred to as the ‘Peace v Justice dilemma’. Some commentators (wrongly in my view) argue that while peace is ‘forward looking’ and ‘positive’, justice is ‘backward looking’, incompatible with peace negotiations and having a tendency to open up tensions rather than helping to heal old (or not so old) wounds. In these circumstances, they argue that justice should be ‘sacrificed’ for the sake of reaching some form of peace settlement, and that if this means that a despot who has committed very serious crimes whilst in power is left alone to live a long a comfortable life (often with ill-gotten gains hidden in secret bank accounts), then that is an unfortunate but necessary consequence.

Views such as these are largely simplistic and naïve, and misunderstand the nature and meaning of true peace. They also demonstrate a lack of insight into the goals of justice – particularly international criminal justice (see below). However, they are surprisingly widely held views, not only among those with a vested interest in not being held accountable, but also by NGOs and even some aid agencies. Clearly there is much work to be done to change this perspective.

The International Criminal Court

Establishment

As is well known, the ICC was established on 1 July 2002 following the necessary 60 ratifications of the Rome Statute (there are currently 110 States Parties). The Court has been given the mandate to play a role when international crimes have (allegedly) been committed. As a permanent court, it differs from the ad hoc international criminal Tribunals for the Former Yugoslavia and Rwanda, which were set up as United Nations subsidiary organs in response to specific events and were always intended to have a limited life-span, as is indicated by the formulation by the UNSC of the Completion Strategy that each is currently operating under.

By contrast, the ICC is a permanent institution, established under a treaty and, as such, independent of the United Nations, although there is clearly an ongoing relationship between the two institutions on several key issues (see below). The ICC has the power to exercise its jurisdiction with respect to circumstances that may occur in the future – that is, at any time after the Rome Statute came into force. Unless the Assembly of States Parties to the Rome Statute decides to completely alter its nature or focus, the ICC will remain in place for the long-term. By its very nature, therefore, the ICC will often operate within the context of an ongoing conflict, which heightens the likelihood that it will be confronted with arguments related to the peace v justice debate.

In this sense, the ICC represents an important guardian of those values and norms that are accepted universally among the international community. As the then United Nations Secretary-General, Kofi Annan, put it following the agreement of delegates at the 1998 Rome Conference to adopt the Rome Statute, the Court’s creation is:

a gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law.

Not only is this important in and of itself; it also reaffirms the interrelationship between the maintenance of international peace and security – one of the principal purposes of the United Nations - and the respect for fundamental human rights. Indeed, the UNSC has acknowledged that:

peace and security, development and human rights are the pillars of the United Nations system and the foundations for collective security and well-being, and ... in this regard ... development, peace and security and human rights are interlinked and mutually reinforcing

Jurisdiction

It is important to note that the ICC, like any specifically established court, can only operate within the confines of the jurisdiction that it has been granted. The Rome Statute provides that the following crimes, when committed after 1 July 2002, fall within the jurisdiction of the ICC:

• Genocide – when committed ‘with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’ (often referred to as the dolus specialis);
  
• Crimes against Humanity – when committed ‘as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’;
  
• War Crimes – which usually involves a breach of 1949 Geneva Conventions and/or the laws and customs of armed conflict, ‘in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes’;
  
• The [as yet undefined] Crime of Aggression.
  

Articles 12 and 13 of the Rome Statute specify the ‘[p]reconditions to the exercise of jurisdiction’ and ‘exercise of jurisdiction’ by the Court respectively. In summary, the Court can exercise its jurisdiction in relation to these crimes in the following circumstances:

• where an (alleged) crime has been committed on the territory of a State Party to the Rome Statute;
  
• where a national(s) of a State Party to the Rome Statute is alleged to have committed a crime;
  
• where a situation in which a crime(s) ‘appears to have been committed’ has been referred to the Prosecutor of the ICC by the UNSC acting under Chapter VII of the United Nations Charter; or
  
• where a non-State Party to the Rome Statute lodges a declaration with the Registrar of the ICC, accepting the jurisdiction of the Court with respect to the ‘crime in question’.
  

The jurisdiction of the Court is subject to the principle of ‘complementarity’ that has been established under the Rome Statute. In essence, this means that primary responsibility for the prosecution of these crimes lies with States and that the ICC therefore operates as a ‘court of last resort’. This in itself demonstrates a shift in emphasis from the culture of impunity that had existed before the 1990s, during which time it was evident that States were very reluctant to try their own nationals (let alone Heads of State) for war crimes, and even more so where crimes against humanity or genocide were concerned.

Goals / Mandate

In the context of whether the ICC should be involved in the prosecution of Heads of State in appropriate circumstances (remembering, as noted above, that the official capacity of a person is not relevant to the Court), it is relevant to recall its mandate and the context within which it has been established, as set out in the preamble of the Rome Statute. These include:

(...)

Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation,

Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes,

Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes,

(...)

More generally, the whole concept of international justice is itself a very complex issue. The ICC represents another (albeit significant) development in the ongoing evolution of this process of justice. In this regard, it is of vital importance that those involved in this evolutionary process understand precisely what it is that the international community and civil society are trying to achieve as we develop the various tools of international justice. Although far too simplistic, one could perhaps think of the ‘goals’ of international justice in terms of ‘micro’ and ‘macro’ criteria as follows:

Micro Goals

• Guilt / Innocence
• Individual Responsibility
• Revenge
• A voice for victims
• Individual Memory
• Closure /Satisfaction
  

Macro Goals

• Reconciliation
• Retribution
• Reparation
• Deterrence / Prevention
• Peace and Justice
• Historical Record
• Collective Memory
• A Transparent Process
  

Naturally, there may be other goals, and some of those suggested above may themselves not be appropriate for certain situations. Yet, it is clear that the prosecution of a Head of State would, in appropriate circumstances, fall within the general and specific goals of Courts like the ICC. Or put another way, such a prosecution would certainly not be inconsistent with the role that the international community has given to the ICC.

Relationship between the ICC and the UNSC

This aspect of the structure within which the ICC operates is important in the context of the prosecution of a Head of State and is particularly relevant in Darfur situation. A consideration of the relationship between the ICC and the UNSC raises a number of complex legal and practical questions. Many of these are due to a combination of factors, including the sui generis nature of the two institutions, the fact that the ICC is a relatively new institution, and the particular powers given, and role ascribed to the UNSC under the terms of both the United Nations Charter and the Rome Statute. Some relevant provisions of the Rome Statute are as follows:

• Article 13(b) of the Rome Statute provides for the referral of a situation to the ICC by the UNSC acting under Chapter VII of the United Nations Charter – this referral mechanism was implemented by the UNSC in relation to the situation in Sudan since 1 July 2002 (UNSC Resolution 1593, 31 March 2005)
  
• Mechanisms exist for the ICC to inform the UNSC about the failure of a non-State Party or State Party to cooperate with the Court in respect of its activities in a case that has been referred to the Prosecutor of the ICC by the UNSC under article 13(b)
  
• Article 16 of the Rome Statute provides for the deferral of an investigation or prosecution by the ICC upon the request by the UNSC acting under Chapter VII of the United Nations Charter. This deferral is for a 12 month period, subject to renewal by the UNSC under the same conditions. The deferral mechanism has been implemented in the past in reaction to concerns about the Court raised by the United States in particular, but it has not been used for several years. As noted above, both the AU and the Organization of Islamic States are calling for it to again be used in relation to the Bashir case, ‘in the interest of peace, justice and reconciliation’. In the meantime, the Council of the AU has reiterated its call for all AU Member States not to cooperate with various ICC processes, in particular those concerned with the arrest and surrender of President Bashir. It should be noted that a failure to cooperate may, among other things, represent a violation of UNSC resolutions, as well as the Rome Statute.
  

Criteria of ‘Success’

Coupled with the goals of international justice is the question of how history will judge whether this ongoing process of the internationalization of justice has been, is and will be a ‘success’, particularly in view of the various challenges that the ICC faces. Both of these issues have been discussed in previous articles in Legal Studies – Lifeline [WAYNE – PLEASE ADD A FOOTNOTE REFERENCE HERE TO THE PREVIOUS ARTICLES], and the points raised in those articles are also relevant for the question of prosecuting Heads of State.

Whatever the most appropriate criteria for success might be in order to satisfy the goals of justice, a simple question must be asked: would these criteria and goals be satisfied simply by the prosecution of ‘foot soldiers’, rather than those ‘most responsible’ for the commission of international crimes, whoever they may be and whatever their official capacity is?

The Road Forward

In the end, the effectiveness of international criminal justice will largely depend on the efforts of States to demonstrate the requisite political will – backed by tangible resources and action – necessary to allow for proper accountability for those who commit gross violations of human rights. Courts like the ICC have a vital role to play in this process, but their creation is not the panacea that will stop these atrocities from taking place. The ICC is just one (albeit very important) cog in an ever more complex matrix of mechanisms that must be implemented if, in the future, the world is to see justice, in the broader sense, for all.

Yet it is clear that progress has been made and the prosecution of Heads of State is an important element in the internationalization of justice. This is something to be applauded. Indeed, international criminologists now talk about the emergence of a ‘Pinochet syndrome’ – where the senior political and military leaders of today and tomorrow can no longer ignore the rule of law and the reach of this system of internationalized criminal justice, by assuming that they will never be brought to account.

In this sense, the prosecution of Heads of States in the proper circumstances is entirely appropriate. It is clearly consistent with the goals of national and international justice. It is clearly within the principles of international law. It is clearly within the mandate of the various international and internationalized Courts and Tribunals (including the ICC) that have been established. It is clearly in keeping with the desire of civil society to ensure that the culture of impunity that had existed for many years and had seen countless deaths does not re-emerge. And, despite what some may argue, it not an isolated occurrence, but rather is part of a growing and irreversible trend.

Perhaps most poignant of all are the words from a current Head of State. In 2007, The Economist quoted Libya’s President Muammar Qaddafi – who just happens to be the current Chairperson of the AU – when he anxiously responded to the arrest of his former protégé Charles Taylor in the following terms: ‘This means that every head of state could meet a similar fate. It sets a serious precedent’.

Let us all keep our fingers crossed that President Qaddafi is indeed correct.