Daniel M. Singerman, It's Still Good to Be the King: an Argument for Maintaining the Status Quo in Foreign Head of State Immunity

• Publication year: 2007

IT'S STILL GOOD TO BE THE KING: AN ARGUMENT FOR MAINTAINING THE STATUS QUO IN FOREIGN HEAD OF STATE IMMUNITY

INTRODUCTION

Three men sued a Colombian seminarian, the Archdiocese of Galveston- Houston, several Catholic leaders, and Cardinal Joseph Ratzinger (now Pope Benedict XVI) in the United States District Court for the Southern District of Texas.¹The men alleged that, as boys, the Colombian seminarian repeatedly sexually abused them and that the Galveston-Houston Archdiocese conspired to cover up the abuse by sending the seminarian to a retreat for abusive priests.²Further, the men alleged that in 1962, the Congregation for the Doctrine of Faith, an office later headed by Pope Benedict XVI (then Cardinal

Ratzinger), "published the Crimen Sollicitationis, or 'Manner of Proceeding in Cases of Solicitation.'"³The plaintiffs claimed that the Crimen is essentially a manual explaining how to conduct secret "sham-trials" of sexually abusive priests.⁴Such sham trials "make it virtually impossible for any priest ever to be convicted" of sexual abuse.⁵Following the trials, the criminal priest is sent on "pious pilgrimages."⁶The victim is "silenced under a papal secret"⁷and warned that the potential penalty for speaking of the sexual abuse is eternal damnation.⁸The men argued that Cardinal Ratzinger's circulation of the Crimen constitutes "conspiracy, fraud, fraudulent concealment, misrepresentation, and conspiracy to commit and conceal the fact that members of the clergy sexually abused minors," including the defendants.⁹

In a different case, practitioners of the Chinese religious and spiritual movement Falun Gong sued Jiang Zemin, the former President of China, and an office of the Chinese Communist Party headed by President Jiang in U.S. District Court.¹⁰The Chinese Communist Party viewed Falun Gong as a cult that was attempting to subvert and overthrow the Chinese government.¹¹

Pursuant to the Alien Tort Claims Act (ATCA),¹²the plaintiffs alleged genocide, torture, and other human rights violations related to the suppression of Falun Gong.¹³Specifically, the plaintiffs contended that in July 1999,

President Jiang "issued an edict outlawing Falun Gong."¹⁴The "edict was followed by mass arrests, allegedly farcical trials, torture, forced labor, 're- education,' and the killing of members."¹⁵During a 2002 trip to meet with President George W. Bush, President Jiang was served with process in Chicago, Illinois.¹⁶

In yet another case, pursuant to the ATCA and the Torture Victim Protection Act,¹⁷a group of Zimbabwean nationals alleged that they and their family members suffered torture, assault, execution, and other violent acts perpetrated and ordered by members of the Zimbabwe African National Union Patriotic Front.¹⁸The named officials included Zimbabwean President Robert Mugabe and Zimbabwean Foreign Minister Stan Mudenge.¹⁹In September

2000, Mugabe and Mudenge visited New York City to attend the United

Nations Millenium Summit.²⁰During their visit, Mugabe attended and spoke

Id.

See Tachiona v. Mugabe, 386 F.3d 205, 208-09 (2d Cir. 2004). at a private political rally at a church in Harlem.²¹Just before entering the church, Mugabe was served with copies of a complaint alleging these violations of international human rights norms.²²

Finally, plaintiffs, a class of Palestinians filed a 140-page complaint in the U.S. District Court for the District of Columbia seeking punitive and treble damages, compensatory damages, and injunctive relief for alleged genocide, crimes against humanity, and war crimes.²³In particular, the complaint alleged "intentional killing, torture, inhumane treatment, and destruction of property without military necessity."²⁴Further, plaintiffs alleged:

[C]onspiracy to commit racketeering activities in coordination with the American government, based upon the predicate offenses of murder, attempted murder, kidnapping, threat of murder, and arson; conspiracy to commit racketeering activities with Israeli settlers and [U.S. supporters of Israeli settlers] through the predicate offenses of attempted murder, threat of murder, arson, and extortion, extrajudicial killing, torture, arbitrary arrest and detention, cruel, inhuman, and degrading treatment, wrongful death, battery, false imprisonment, assault, intentional infliction of emotional distress, negligent infliction of emotional distress, trespass, and conversion.²⁵

The defendants included Israeli Prime Minister Ariel Sharon, the State of Israel, various other prominent Israeli leaders, various Israeli settlement groups, and various U.S. groups that support Israeli settlement activities.²⁶

While these four U.S. cases brought against foreign heads of state were dismissed pursuant to executive immunity, they suggest an increasing attempt to erode traditional international privileges and immunities.²⁷In particular, more and more litigants in the United States and abroad are seeking to bring criminals and tortfeasors-regardless of position or political rank-within the jurisdiction of the courts. U.S. policymakers, by contrast, have sought to limit the effects and potential political fallout of these types of cases.²⁸

While recognizing that no person ought to be above the law, this Comment argues that strong international legal immunities, particularly head of state immunity, should be preserved at the status quo. Because of the unique status of heads of state, special caution is necessary when considering their privileges and immunities. As former U.S. Secretary of State Henry Kissinger wrote, "[t]o be sure, human rights violations, war crimes, genocide, and torture have so disgraced the modern age . . . that the effort to interpose legal norms to prevent or punish such outrages does credit to its advocates."²⁹Nevertheless,

Kissinger argued that pushing the effort to extremes could "risk substituting the tyranny of judges for that of governments; historically, the dictatorship of the virtuous has often led to inquisitions and even witch-hunts."³⁰This Comment largely adopts Kissinger's concerns and argues for a balanced and nuanced approach to head of state immunity questions.

The doctrine of head of state immunity includes two related yet distinct doctrines of international law: foreign sovereign immunity and diplomatic immunity.³¹Part I of this Comment discusses the background and historical development of these two international law doctrines. Part I.A addresses foreign sovereign immunity as customary international law generally, turning to foreign sovereign immunity as it has developed in the United States. Part I.B discusses the history and development of diplomatic immunity. Part II considers the history of the head of state immunity doctrine. Part II.A presents head of state immunity as part of customary international law generally. Part II.B focuses on head of state immunity in the United States. Finally, Part III argues for a head of state immunity regime based largely on the current practice in both the United States and in customary international law. This Comment concludes that the current system, with some minor changes, represents a balanced and pragmatic approach to dealing with head of state immunity questions.

I. THE RELATED CONCEPTS OF FOREIGN SOVEREIGN IMMUNITY AND

DIPLOMATIC IMMUNITY

A. Foreign Sovereign Immunity

This section discusses the concept of foreign sovereign immunity. Focusing first on foreign sovereign immunity as it is defined by international customary law,³²then turning to the doctrine of foreign sovereign immunity as it has been defined by U.S. courts.

1. Foreign Sovereign Immunity in Customary International Law

The idea of foreign sovereign immunity is rooted in the notion that one sovereign could not sit in judgment of another sovereign because they have equal standing with each other in the international community.³³As such, allowing foreign tribunals to judge the validity of the acts of other foreign sovereigns was considered an affront to the notion that all States were equal subjects under international law.³⁴Historically, international law recognized a so-called "absolute" sovereign immunity for foreign States, where no State could be brought to trial without giving consent.³⁵As countries became more commercially intertwined with foreign private parties, the international community slowly shifted toward a restrictive form of sovereign immunity, which retained immunity only for public State acts and not for private State acts.³⁶Different States, however, draw varying distinctions between public and private acts.³⁷Furthermore, some States-notably former communist bloc

States-only recently acceded to the doctrine of restrictive sovereign immunity.³⁸

2. Foreign Sovereign Immunity in the United States

In the United States, the foreign sovereign immunity doctrine lagged slightly behind foreign sovereign immunity doctrinal developments in other countries. Nevertheless, the doctrine developed largely in tandem with the doctrine in international law.³⁹In the United States, "[t]hroughout the nineteenth and early twentieth centuries, courts resisted executive suggestions of immunity, even as the suggestions began to reflect important and internationally accepted changes in the doctrine of sovereign immunity."⁴⁰In

1938, the Supreme Court began to accord weight to executive suggestions of immunity.⁴¹The Court did so as foreign States began to use similar suggestions of immunity as a method of presenting immunity claims without needing to appear.⁴²

a. The Schooner Exchange v. McFaddon

Until the twentieth century, the United States applied the absolute theory of sovereign immunity.⁴³Commentators have pointed to the case of The Schooner Exchange v. McFaddon⁴⁴as emblematic of this absolute form of sovereign immunity in early U.S. law.⁴⁵In Schooner Exchange, two plaintiffs claimed to be the sole owners of the Schooner Exchange, a ship violently taken from them by persons acting under the decrees of the French government.⁴⁶

The...