Nails in the Coffin of the Vampire

Personal Sovereign Immunity and its Timely but Incomplete Death

Judicial power has been a major factor in the curtailing of individual rulers being criminally immune for their actions. Such power has been exercised by courts of both nation and international origin,such as the International Criminal Tribunal for Rwanda or the International Criminal Court. The immunity this Note discusses must be differentiated from head-of-state immunity in civil actions, which may arise from wrongful activities, but where the stakes are for financial penalties or other remedies rather than the personal liberty of the defendant. A contemporary example is the recent civil litigation filed against Mexico’s former President, Ernesto Zedillo, who was the last leader of the Institutional Revolutionary Party. The U.S. State Department has intervened in favor of Zedillo’s civil immunity from suit, and this determination is considered highly persuasive though not binding on federal courts; indeed, on July 22, 2013, the judge dismissed the case. Jurisdiction for courts is historically based on the individual’s activities and presence within the area in which the police powers of the state are enforceable. This is the territoriality jurisdiction, upon which most criminal actions are based. A court may also try to exercise jurisdiction where a citizen of the nation in which the court is based, where the victim was harmed outside of the borders of the nation or where the tortfeasor is a citizen. Several national courts—based solely within the territorial jurisdiction of one country—have attempted to try leaders of other nations for activities that did not have any nexus to the country exercising jurisdiction. Universal jurisdiction,as it is called, is both a historical practice and, today, a novel measure engendering controversy. International courts, on the other hand, base their jurisdiction on the accession of state parties to the foundational treaties that create and govern the courts, and in other instances on the jurisdictional power—directly or indirectly—comes from a United Nations Security Council grant. By mutual assent in the form of treaty ratification and participation these member states have bound themselves to various treaties. This Note explores the evolution of head of state immunity for criminal actions and the deconstruction of the doctrine over time. Using individual case studies, the Note explores the way that head of state criminal immunity has impacted rules throughout time. It further examines how Medieval changes in criminal immunity for leaders planted the seeds for change.

The full text of this Note is available to download as a PDF.