The Sovereign Power to Evade Justice

Sovereign immunity, a doctrine designed to protect state actors from foreign proceedings, resides at the core of one of international law’s most contentious debates: can a sovereign truly be above the law? In cases of egregious human rights violations, state officials and leaders have often evaded all liability on the mere basis of their legal protections; they cannot be held liable in civil lawsuits or criminal proceedings and, therefore, cannot commit a legal wrong. Inherently unfair, this state of affairs calls for immediate reform. Such bias is against the principle of justice and perpetuates a culture of impunity and compromised legal integrity — defying that esteemed Spider-Man quote: “With great power comes great responsibility.” Yet despite these glaring injustices, this doctrine is still deeply embedded in international law, defended as a force for political stability and smoother diplomatic relations. For how long can immunity be allowed to trump justice?

In constitutional monarchies, where a king or a queen is Head of State, the sovereign is the source of all legal authority, establishing the very courts themselves and as such, these courts hold no power to compel or adjudicate against their creator. It would seem a misapprehension to regard the potentate as fallible or flawed, given their divine ordination, and this entrenched belief of sovereign faultlessness is epitomised by the legal maxim upon which English law is based: rex non potest peccare (the king can do no wrong). Although this aphorism pertains exclusively to a king, affirming a patriarchal context, its implications have evolved in modern settings, extending immunity to those considered sovereign persons. In the United Kingdom, these people are the monarch, Parliament, and the Judiciary, while in the United States, they are the President, Congress, and both federal and state governments. Thus, it appears that the more things change with time, the more some individuals remain blissfully above the fray of accountability.

Historically, this doctrine can be traced back to the Eleventh Amendment of the United States Constitution, which states that:

“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or Citizens or Subjects of any Foreign State.”

At first glance, this might seem like a dense and abstract legal jumble of words, but what it essentially does is prevent states from being sued in federal court without their consent. It is the constitutional equivalent of a state telling people, politely but firmly, that they can’t take legal action against it - unless, of course, the state allows it.

This amendment reinforces the idea that states are sovereign entities within the federal system and how regardless of what heinous actions are committed - be it genocide, torture or religious persecution - they cannot be held accountable due to this constitutional shield. It links to the disputed theory of originalism, which bases constitutional and statutory interpretation of text on the original understanding at the time of its adoption, thereby preserving the legal foundations established centuries ago at the expense of modern justice. In this way, critics argue that originalism, when applied to sovereign immunity, dangerously ignores the evolution of current legal and moral standards. They argue that the clinging to centuries-old interpretations allows state actors to evade accountability for atrocities that were unimaginable when these doctrines were first established, effectively placing historical intent over contemporary equity.

From the early to mid-20th century, the shift from absolute to restrictive immunity began and it is worth clarifying these terms. The origin of the concept of absolute immunity can be found in the principle of par in parem non habit imperium (equals do not have authority over one another). According to the Oxford Dictionary of Law, this Latin phrase implies that in international law “one sovereign power cannot exercise jurisdiction over another sovereign power”. As such, this approach proposes total immunity from being sued or having assets seized by a foreign court, even in commercial matters. On the other hand, whilst still offering immunities to activities involving an exercise of sovereign (public) power, restrictive immunity does not protect the commercial and private activities of states (known as acts jure gestionis).

This landmark shift towards restrictive immunity began after World War II and was particularly affected by the Nuremberg Trials (of 1945-6) which set a precedent for prosecuting state officials for crimes against humanity. In 1976, the United States formally adopted restrictive immunity through the Foreign Sovereign Immunities Act (FSIA) and since then, the development of international bodies, such as the International Criminal Court (ICC) and tribunals for specific crimes, has grown. In support of this move away from absolute immunity, the Roma Statute, which established the ICC, explicitly mentions the ability for this court to exercise jurisdiction over individuals accused of international crimes, regardless of their official position. Its complementarity principle ensures that national courts have the first opportunity to prosecute, but if a state is unable or unwilling to genuinely carry out the negotiation and prosecute the perpetrators, then the ICC can intervene.

———————————————————————————————————————————-

Case Studies

On the night of October 16, 1998, London police arrested Gen. Augusto Pinochet, acting upon a Spanish warrant that charged the former dictator with human rights crimes committed in Chile during his seventeen-year rule. For those of you who have never confronted the atrocities of this malevolent man, Pinochet was charged with the killings and “disappearances” of over 2000 people as he persecuted leftists, socialists, political critics, and anyone opposed to his reign of terror. The internment of as many as 80000 people, and the torture of tens and thousands, were acts he committed and these were directly punishable by international law. The crimes which give rise to universal jurisdiction are torture, genocide, war crimes, and crimes against humanity - all of which Pinochet was seen to have done. It was therefore unsurprising that Pinochet’s claim, entitling him to immunity, was rejected and that the the British courts were able to extradite him to Spain to stand trial.

A lot of Pinochet’s legal troubles emerged from the 1984 UN Convention Against Torture, which Chile had ratified. Article 5 of this convention requires states to prosecute or extradite individuals suspected of committing acts of torture, regardless of their nationality. As a general legal practice, there are certain rules which extradition follows. These include: double criminality, the acts alleged must be criminal in both the requested and requesting state, and evidentiary burden, the requesting state must present a prima facie case before extradition, upon other things. The Pinochet case is a great example of how these rules determining extradition can overcome the shield of sovereign immunity. This case showed that even former heads of state can be held accountable when international legal principles, such as those outlined in the UN constitution, take precedence over traditional protections of power.

Another important case for this discussion of sovereign rights is that of Omar al-Bashir, the former president of Sudan. In 2009, he was indicted by the ICC on charges of genocide, war crimes, and crimes against humanity for his role in the Darfur conflict, where an estimated 300000 were killed. This event was particularly significant in that it marked the first warrant of arrest on a sitting Head of State. However, al-Bashir invoked sovereign immunity to avoid prosecution - straight up denying the request - and several African nations, despite being signatories to the Roma Statute, refused to arrest him during his visits, citing diplomatic immunity. The case exposed the challenges of enforcing ICC ruling when state cooperation is lacking. It illuminated the fragility of international justice and how the lofty principles of accountability can be easily thwarted when political expediency and state sovereignty are allowed to overcome the moral imperative to punish crimes that shock the conscience of humanity.

———————————————————————————————————————————

Bringing the article back to more contextual details about immunity, we should understand the geopolitical factors at play. Rather shamefully, the enforcement of international justice is often undermined by the outsized influence of powerful states like the United States, Russia, and China, where the political, military and economic clout tends to insulate them and their allies from whole accountability.

Although bodies such as the ICC and the International Court of Justice (ICJ) exist, these nations’ power frequently skews the application of justice. For example, the U.S. has long refused to subject its military personnel to ICC jurisdiction; they noticeably passed the American Service- Members’ Protection Act to shield its soldiers from potential prosecution. Similarly, Russia’s actions in Chechnya and China’s treatment of Uyghur Muslims have faced minimal legal repercussions, largely due to their veto power on the UN Security Council as well as their economic leverage over other nations. This reality has brought accusations of bias and selective judgement, thereby eroding the legitimacy of international courts, which are seen as disproportionately targeting weaker states while powerful ones evade scrutiny. As such, a strong, disciplined international justice system remains idealistic and an aspiration; current ones often falter in the face of geopolitical interests and so are imperfect.

A subtle distinction which I am yet to address is that between immunity and impunity. While immunity is designed to legally protect the functions of sovereigns and diplomats, it often veers dangerously close to impunity - the lack of accountability or punishment for individuals who have committed grievous crimes - thereby allowing those responsible to escape justice. As these terms have recently become quite conflated, legal thinkers, advocacy groups, and institutions have been prompted to advocate for reform.

One of the most remarkable responses is the Responsibility to Protect (R2P) principle, endowed by the UN in 2005, which seeks to limit state sovereignty in situations where leaders fail to protect their populations from atrocities. On top of civil society, NGOs, and human rights organisations (like Human Rights Watch and Amnesty International), a lot of ordinary people have become determined to get the justice of equity and fairness into these international legal systems. Although the challenges of prosecuting Heads of States still remains, recent cases, involving Myanmar and Syria, showcase how the ICC and other bodies are increasingly willing to challenge state actors over their crimes. These efforts signal the growing momentum towards accountability as both legal institutions and advocacy groups continue to pressure states and their leaders to face consequences for their actions.

In the end, as global norms evolve, so too must our legal frameworks. The shift from absolute to restrictive immunity post-World War II was a step in the right direction, yet it is far from sufficient. In today’s world, it is inappropriate for the legal tenets that are dependent on geopolitical order and remnants of monarchical privilege to perpetuate a culture of untouchability. The doctrine of sovereign immunity should not be an all-encompassing weapon for leaders to escape justice. Reform is not just necessary - it is overdue. If the international system is to maintain any semblance of legal integrity, it has to guarantee that no person, however high their post or title, is above the law.

-Jaden Potishko