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LEXSEE 2008 EMERGING ISSUES 2105

Emerging Issues Copyright 2008, Matthew Bender & Company, Inc., a member of the
LexisNexis Group. All Rights Reserved.

Drimmer on the Prosecution of World Leaders

2008 Emerging Issues 2105

Jonathan Drimmer on the Prosecution of World Leaders

By Jonathan Drimmer

August 6, 2008

SUMMARY: Radovan Karadzic and Omar Al-Bashir are part of a recent trend of state leaders being prosecuted,
serving jail time, or facing credible criminal investigations by domestic, foreign, and international courts. This
Commentary, prepared by Jonathan Drimmer, a partner at Steptoe & Johnson, discusses this trend and demonstrates that
despite the concerns regarding the effects of these proceedings, the development must be seen as positive.

PDF LINK: Click Here for Enhanced PDF of Commentary

ARTICLE: Jonathan Drimmer on the Prosecution of World Leaders

Though they may not know it, Radovan Karadzic and Omar Al-Bashir belong to a growing club. Karadzic is the
former President of the breakaway republic Sprska, and was until recently one of the worlds most wanted fugitives. He
has been indicted by the International Criminal Tribunal for the Former Yugoslavia (ICTY) for the mass slaughter of
civilians. The International Criminal Court (ICC) chief prosecutor has requested an arrest warrant for Bashir, the sitting
President of Sudan. He allegedly masterminded attempts to wipe out African tribes in Darfur. Karadzic and Bashir both
are part of a recent trend of current and former state leaders who are being prosecuted, serving jail time, or facing
credible criminal investigations by domestic, foreign, and international courts. While many attack the trend as
politically motivated and defined by unjust show trials, or as navely failing to heed political circumstances and creating
the potential for further violence, the development must be seen as positive.
A Recent Trend. Until recently, head of state prosecutions were isolated and sporadic. Though well known
examples include Englands trial of Mary Queen of Scots in 1586 for plotting to kill Queen Elizabeth and seize the
throne, its treason trial of Charles I in 1649, and Frances 1945 conviction of Marshal Petain, head of Vichy France, for
collaborating with the Nazis, state leader prosecutions have been historical anomalies.
Varied reasons underlay the paucity of such cases. Traditionally, even the most reviled state leaders have enjoyed
lifetime immunity (immunity ratione materiae) in domestic and foreign courts for their official acts. They also have
enjoyed a personal immunity that lasts during their tenure for all unofficial acts (immunity ratione personae), such as
looting state coffers or murdering political rivals. See Paola Gaeta, Ratione Materiae Immunities of Former Heads of
State and International Crimes: The Hissene Habre Case, 1 J. Intl Crim. Just 186, 188 (2003); Dapo Akande, The
Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits, 1 J. Intl Crim.
Just 618, 641-42 (2003). While that personal immunity is temporary, protecting the leader only while he remains in
office but not after he steps down, scores of infamous heads of state, such as Idi Amin of Uganda, Jean-Claude Baby
Doc Duvalier of Haiti, or Romeo Lucas Garcia of Guatemala, have retired to friendly countries that afforded them
protection from extradition. Many others have remained in-country, benefiting from a historical lack of will to try
former chiefs. The end result has been that for centuries, brutal human rights abusing presidents, corrupt kleptomaniacal
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prime ministers, and serial miscreant dictators have escaped justice to live in cozy retirement, often with a wealth
dishonestly accumulated while in office.
The Change. The past 25 years have brought a worldwide change of attitude. While official immunity still
formally exists, the statutes of the ICC and the other international tribunals established to prosecute offenses arising
from conflicts in the former Yugoslavia, Rwanda, Sierra Leone and Cambodia all expressly declare that an official
capacity or rank by itself is no defense to prosecution. See Statute of the International Criminal Court, art. 27, July 17,
1998, 2187 U.N.T.S. 90; Statute of the International Criminal Tribunal for Rwanda art. 6, reprinted in 35 I.L.M. 1598
(1994); Statute of the International Criminal Tribunal for the Former Yugoslavia art. 7, reprinted in 32 I.L.M. 1203
(1993); Statute of the Special Court for Sierra Leone, art. 6, Jan. 16, 2002, 2178 U.N.T.S. 145; Law on the
Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During
the Period of Democratic Kampuchea, art. 29, NA/RKM/1004/006, available at
http://www.eccc.gov.kh/english/cabinet/law/4/KR_Law_as_amended_27_Oct_2004_Eng.pdf. The British House of
Lords echoed that principle in 1999, ruling that Augusto Pinochet, the former dictator of Chile, could be prosecuted for
torture by domestic courts in Spain, holding that some crimes are so reviled they can never be considered a part of a
leaders official duties. See Regina v. Bow St. Metro Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3), [2000] 1
A.C. 147 (H.L. 1999), reprinted at 38 ILM 581; but see Arrest Warrant of 11 Apr. 2000 (Dem. Rep. Congo v. Belg.),
2002 I.C.J. 3 (Feb. 14), reprinted at 41 ILM 536. The Pinochet precedent has been followed elsewhere, and international
pressure has led to the arrest and extradition of former leaders who once could have counted on a life of luxury after
their time in office. Still other countries have become emboldened by the worldwide trend, and undertaken
investigations and prosecutions of their former leaders that, decades ago, would have been unthinkable.
Among the most well known examples of such cases are the trials of Saddam Hussein in Iraq, Serbian President
Slobodan Milosevic before the International Criminal Tribunal for the Former Yugoslavia, and Liberian President
Charles Taylor before the Special Court for Sierra Leone. But there are a bevy of other leaders around the world
currently subject to criminal proceedings at various stages. They include:
General Wojciech Jaruzelski, Polands last Communist leader, who is to be tried for imposing martial law in 1981 as
part of a brutal crackdown on democracy activists;
General Manuel Noriega, former leader of Panama, who remains in a U.S. jail for drug trafficking and a bevy of
other offenses, see United States v. Noriega, 117 F.3d 1206 (11th Cir. 1997);
Former President of Uruguay Juan Maria Bordaberry, who faces homicide charges related to the Dirty War Killings
in the 1970s;
Former Chad ruler Hissene Habre, who is facing trial in Senegal for human rights abuses during his reign in Chad;
Khieu Samphan, former Khmer Rouge President, who is awaiting trial before the Extraordinary Chambers in the
Courts of Cambodia;
Desi Bouterse, former military dictator of Suriname, and current Parliament member and leader of Surinames
largest political party, who is on trial in Paramarimbo for killing 15 opponents of his regime in the 1982 December
Murders;
Jean Kambanda, former Prime Minister of Rwanda, who is serving a life sentence for participating in the Rwandan
genocide following his guilty plea to the International Criminal Tribunal for Rwanda, see Prosecutor v. Kambanda,
ICTR 93-27-2, Judgement and Sentence, reprinted at 37 ILM 1411 (1998);
Former president of Peru Alberto Fujimori, who has been convicted by a Peruvian court for conducting an illegal
search and seizure, is on trial for authorizing two death squad massacres and a kidnapping in the early 1990s, and faces
untried corruption charges; and
Former Thai Prime Minister Thaksin Shinawatra, former Bangladesh Prime Minister Khaleda Zia and current
Israeli President Ehud Olmert, all currently on trial in their respective countries for corruption.
Karadzic, the architect of the infamous Srebenica massacre in which 8000 Muslims were ethnically cleansed,
Prosecutor v. Karadzic and Mladic, IT-95-5-1, Indictment (2003), and Bashir, who has overseen an ongoing campaign
of murder, systemic rape, and deportation of millions, see Prosecutors Application for Warrant of Arrest Under Article
58 Against Omar Hassan Ahmad Al-Bashi, http://www.icc-cpi.int/library/organs/otp/ICC-OTP-Summary-20081704-
ENG.pdf, are welcome additions to this disreputable group.
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Opposing Sides. Though the trend toward ending impunity for current and former leaders is generally applauded,
there are vocal critics. Some characterize these cases as political show trials, calling them the product of victors justice
where guilt is a foregone conclusion and the proceedings are defined by their shortcomings. These critics are
exemplified by author John Laughland, who argues that [p]olitical trials are the continuation of war by other means. See
John Laughland, A History of Political Trials: From Charles I to Saddam Hussein 253 (2008). While Laughlands further
contention (id. at 251) that in over three hundred years of trials of former heads of state there has never been a single
acquittal is flatly wrong -- the acquittals Hussain Ershad of Bangladesh (assassination), Domitien Ndayizeye of Burundi
(coup plot), Hastings Banda of Malawi (graft), and Ramush Haradinaj of Kosovo (war crimes) are obvious recent
counter-examples -- and fails to acknowledge the many state leader investigations that have been dropped before trial,
his point in questioning the fairness and motives of many cases finds ample support. The fiasco that was Saddam
Husseins trial is but one recent illustration; 4 defense lawyers were killed or fled the country, political pressures on the
court were undisguised and caused the chief judge to resign, the court inexplicably precluded defense witnesses from
testifying, multiple witnesses complained of being threatened or bribed, the judges seemed unfamiliar with the law, the
appeals court affirmed the conviction mere days after receiving the lengthy and complex legal briefs, and other such
failures turned the process into a mechanism designed to convict and execute the former leader.
While the Laughland school decries the influence of politics in state sovereign prosecutions, other critics attack the
cases from the opposite direction. They contend that these cases, like the one against Bashir, often naively ignore
political ramifications. They presume a dichotomy of justice versus peace, asserting that injecting a legal process
against a head of state can threaten to generate violence and even destabilize a country. See, e.g., David Rieff, Justice is
the Enemy of Peace, L.A. Times, July 20, 2008. Where such a threat to peace exists, they advocate for withholding
justice.
Though both concerns have elements of validity, neither should halt the trend of pursuing crooked and abusive
world leaders. No doubt, many head of state prosecutions have been subject to political influence and clear procedural
failings. But the result should not be to abandon important cases that often involve the gravest of offenses. Instead, the
cases should be pursued with the international community using the full force of its power to ensure maximum fairness
in appearance and in fact. That may mean assisting in the investigation or prosecution, whether through training,
security, or helping to provide alternative domestic or international venues. It also may mean threatening sanctions for a
country imposing a sentence following a patently unfair domestic trial, akin to an approach taken with some countries
that have failed to pursue important arrests or prosecutions. Certainly, if the international community can effectively
pressure a country to pursue proceedings against a former leader, it generally should be able to help ensure that a
country conducts such a fair trial.
Likewise, forgoing a prosecution out of fear that an accused criminal will commit more crimes, as other critics
seem to advocate, is starkly inconsistent with the most basic principles of justice. The theory that further violence may
ensue by pursuing a leader also assumes that the leader, facing legal process, has lost all incentive to refrain from
bloodshed, or will seek retribution against his or her victims or his or her perceived pursuers. In the recent past, time
and again that theory has been proven unfounded. Repeated predictions of dire consequences from pursuing a national
or other leader have not borne out, as seen with Milosevic, Taylor, and Joseph Kony, head of the Lords Resistance Army
in Uganda. See, e.g., Priscilla Hayner, Seeking Justice as War Crimes Rage On, Chi. Trib., July 16, 2008. The theory
also assumes that prosecutors and judges should undertake political roles, assessing the prospects for peace or societal
violence as opposed to determining whether a crime has been committed; the prospect of adding naked political
considerations to legal decision-making seems wholly unwise, is outside the expertise of prosecutors and courts, cuts
against basic separation of powers principles, and is the precise phenomenon that Laughland and others correctly
advocate against.
The concerns are especially unpersuasive when weighed against the obvious benefits of pursuing these cases.
Certainly, many more leaders who have committed widescale abuses continue to escape justice than face it. But each
new investigation further cements the emerging principle that status as a national leader is not a blank check to misuse
the power of office. Each new arrest warrant increases the likelihood that present and future leaders will hesitate before
looting state funds or authorizing wanton violence. Each new trial emboldens countries and the international community
to pursue past crimes against former leaders. Each new extradition weakens the arguments for protection by countries
that have become safe havens for cruel dictators. Each new case, enforcing the law equally to all subject to it, is an
example of the rule of law in force and takes one further step toward undermining a historical reign of impunity.
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For general discussions about heads of state on trial, see Mikhail Wladimiroff, Former Heads Of State On Trial, 38
Cornell Intl L.J. 949 (2005). For discussions of head of state immunity, see Daniel Singerman, Its Still Good To Be The
King: An Argument For Maintaining The Status Quo In Foreign Head Of State Immunity, 21 Emory L.J. 413 (2007);
Ilias Bantekas, Head of State Immunity In The Light Of Multiple Legal Regimes And Non-Self Contained System
Theories: Theoretical Analysis Of The ICC Third Party Jurisdiction Against The Background Of The 2003 Iraq War, 10
J. Conflict & Security L. (2005); Jerrold Mallory, Resolving The Confusion Over Head Of State Immunity: The Defined
Right Of Kings, 86 Columbia L. Rev. 169 (1986). For discussions about the Milosevic, Pinochet and Hussein cases
(some in the context of head of state immunity), see Jonathan Drimmer, The Saddam Hussein Verdict: Mixed Progress,
29 National L.J. 31 (Nov. 2006); Jeremy Peterson, Unpacking Show Trials: Situating The Trial Of Saddam Hussein, 48
Harv. Intl L. Rev. 257 (2007); Payam Akhavan, Justice, Power, And The Realities Of Interdependence: Lessons From
The Milosevic And Hussein Trials, 38 Cornell Intl L.J. 973 (2005); Alfred Rubin, Milosevic And Hussein On Trial, 38
Cornell Intl L.J. 1013 (2005); Scott Grosscup, The Trial Of Slobodan Milosevic: The Demise Of Head Of State
Immunity And The Spectre Of Victors Justice, 32 Denv. J. L. & Intl. Poly 355 (2004); Gilbert Sison, A King No More:
The Impact Of The Pinochet Decision On Head Of State Immunity, 78 Wash. U. L.Q. 1583 (2001); Michael Byers, The
Law And Politics Of The Pinochet Case, 10 Duke Compl. J. & Intl L. (2000).

ABOUT THE AUTHOR(S):

Jonathan Drimmer (jdrimmer@steptoe.com) is a partner at Steptoe & Johnson, in Washington, D.C
(www.steptoe.com). He practices International and Commercial Litigation, and is a frequent author and commentator
on issues related to war crimes and international law. He also teaches courses at Georgetown University Law Center
related to war crimes. He is a former Deputy Director of the Office of Special Investigations, in the Criminal Division
of the U.S. Department of Justice, and a former Bristow Fellow, in the office of the U.S. Solicitor General. He also was
a judicial clerk for the United States Court of Appeals for the Ninth Circuit. He received his B.A. from Stanford
University, and his J.D. from UCLA Law School.