U.S. Courts Rule on Absolute Immunity and Inviolability of Foreign Heads of State: The Cases against Robert Mugabe and Jiang Zemin

Sarah Andrews
November 24, 2004
On October 6, 2004 the U.S. Court of Appeals for the Second Circuit ("the Second Circuit") ruled that Robert Mugabe, President of Zimbabwe, enjoyed absolute inviolability and immunity from U.S. jurisdiction. [1] A similar decision was issued just one month earlier by the U.S. Court of Appeals for the Seventh Circuit ("the Seventh Circuit") in respect of a case against Jiang Zemin, former President of the People's Republic of China. [2] Both cases were civil lawsuits alleging serious human rights abuses in violation of the Alien Tort Claims Act, [3] the Torture Victim Protection Act, [4] and international human rights norms.
The Mugabe case
The case against President Mugabe began in September 2000 when, during his visit to the United Nations Millennium Summit, a complaint was filed against him by citizens of Zimbabwe in the U.S. District Court for the Southern District of New York ("the district court"). The complaint accused him of engaging in extrajudicial killing, torture, terrorism, rape, beatings and other acts of violence and destruction. The complaint also named as defendants Foreign Minister Robert Mudenge and the ruling political party, the Zimbabwe African National Unions-Patriotic Front (ZANU-PF). The plaintiffs personally served defendants Mugabe and Mudenge both in their individual capacities and in their capacities as senior officers of the ZANU-PF.
In February 2001, the U.S. government intervened in the case filing a "suggestion of immunity" on behalf of President Mugabe and Foreign Minister Mudenge. [5] The government asserted that Mugabe and Mudenge were entitled to absolute immunity from jurisdiction under the customary international law doctrine of head of state immunity. In addition, it claimed that, as representatives of the Government of Zimbabwe to the United Nations Millennium Summit, both Mugabe and Mudenge were entitled to diplomatic immunity under the Convention on Privileges and Immunities of the United Nations ("the U.N. Convention") [6] and the Vienna Convention on Diplomatic Relations ("the Vienna Convention"). [7] Finally, the government argued that under both the head of state and diplomatic immunity doctrines, Mugabe and Mudenge enjoyed "personal inviolability" and could not be served with legal process in any capacity, including on behalf of ZANU-PF.
The central question for the district court [8] was whether it was bound to uphold the government's absolute theory of head of state immunity. Plaintiffs argued that since the enactment of the Foreign Sovereign Immunity Act (FSIA) [9] in 1976, head of state immunity questions were no longer determined by executive suggestions of immunity but by reference to the more restrictive theory of immunity as set out in the FSIA. Engaging in an extensive review of the legislative history of the FSIA and subsequent case law, the district court rejected this argument. It found the government's suggestion of immunity to be "fully dispositive" and concluded that Mugabe and Mudenge were immune from jurisdiction on head of state immunity grounds. The court also held, in the alternative, that the claims against Mugabe and Mudenge were precluded by diplomatic immunity.  Accepting the government's interpretation of the U.N. Convention, it ruled that temporary representatives to the United Nations enjoyed the same privileges and immunities as diplomatic envoys under the Vienna Convention, including comprehensive immunity from civil jurisdiction as set out in article 31(1). Accordingly, the court dismissed all claims against Mugabe and Mudenge for lack of jurisdiction.
On the other hand, the district court refused to give effect to the government's assertions of Mugabe and Mudenge's inviolability from service of process in respect of the claim against ZANU-PF. Reasoning that service of process on behalf of a third party did not involve any form of legal compulsion, it found no infringement of Mugabe and Mudenge's inviolability. To allow the government's inviolability argument, it stated, would in effect grant immunity to ZANU-PF "under cover of Mugabe's head of state immunity" and result in a misuse of the doctrine. It thus found ZANU-PF to have been validly served and granted plaintiff's motion for a default judgment. [10]   On appeal to the Second Circuit, the government sought to dismiss the default judgment against ZANU-PF on the grounds of improper service of process. The plaintiffs cross-appealed the dismissal of the claims against Mugabe and Mudenge arguing that neither head of state nor diplomatic immunity protected them from suit. With respect to the cross-appeal, the Second Circuit upheld the district court's immunity decision, but this time only on diplomatic immunity grounds. Like the district court, it found that the U.N. Convention conferred on temporary representatives to the U.N. the full scope of immunities enjoyed by diplomatic agents under the Vienna Convention, including immunity from legal process. [11] Having made this determination, the Second Circuit refrained from ruling on Mugabe's and Mudenge's immunity from jurisdiction under head of state immunity. With respect to the judgment against ZANU-PF, the Second Circuit reversed the decision of the district court, finding Mugabe and Mudenge to be protected from service of process as agents for ZANU-PF. Again determining the question on diplomatic - rather than head of state - immunity grounds, the court reasoned that under the U.N. Convention, Mugabe and Mudenge were entitled not only to immunity from jurisdiction, but also to personal inviolability as set out in article 29 of the Vienna Convention. That article provides that a diplomatic agent shall not be subject to any attacks on his or her "person, freedom, or dignity." Finding that service of process on a person entitled to diplomatic immunity (irrespective of the identity of the defendant) "interferes with that person's representative functions and constitutes an affront to his or her dignity," [12] it concluded that ZANU-PF was not validly served and dismissed all claims against it.
The Zemin case
The case against Jiang Zemin, then-President of the People's Republic of China followed a very similar fact pattern to Mugabe. Filed in the U.S. District Court for the Northern District of Illinois ("the district court") in October 2002 during an official visit by Zemin to the U.S., the complaint alleged torture, genocide, and other major human rights abuses perpetrated against practitioners of the Falun Gong spiritual movement. As in Mugabe, the complaint named as an additional defendant a non-governmental third party, the Falun Gong Control Office ("Office 6/10"). Legal process was served on Zemin both in his own capacity and as an agent of Office 6/10.     
Subsequent to the filing of the complaint against him, Zemin departed from the office of President. As the protection afforded a former head of state is substantially less than that afforded an incumbent head of state, [13] this was potentially a significant factor in the outcome of the case. Plaintiffs argued that as a now-former head of state Zemin was no longer immune from the jurisdiction of U.S. courts. Intervening in the case, the U.S. government argued that as a recognized head of a foreign state at the time the case was filed, Zemin was entitled to absolute immunity from jurisdiction and inviolability from all service of process, both on his own behalf and on behalf of the Falun Gong Control Office.
The district court accepted from the outset the government's assertion of immunity on behalf of Zemin as conclusive and binding upon it. [14] Nonetheless, it went on to address the merits of plaintiff's claim that as a former head of state Zemin was no longer entitled to immunity. Without addressing whether questions of jurisdiction, including immunity from jurisdiction, are rightfully decided as of the time proceedings are instituted or as of the time the case is decided, the court analysed Zemin's immunity on the basis his changed circumstances. Then directly applying its reasoning in the earlier case of Abiola v. Abukar, [15] a case against the former head of state of Nigeria, it found that Zemin continued to enjoy immunity for all acts, including violations of jus cogens norms, taken in an official capacity as head of state.
On the other hand, the district court rejected the government's argument that Zemin's personal inviolability insulated him from service of process directed at the non-immune third party, Office 6/10. Citing the decision of the district court in Mugabe, it held that service of process "cannot be seen under all circumstances to be an affront to a head of state's inviolability," [16] and thus that Zemin could theoretically be served in an agency capacity. Eventually, however, the court went on to dismiss the complaint against Office 6/10, holding that Zemin was not an agent of the Office, and furthermore, that there was no basis for personal jurisdiction over the Office.
On appeal by the plaintiffs, the Seventh Circuit upheld the lower court's dismissal of the complaints against Zemin and Office 6/10, but differed significantly in its reasoning. With respect to the complaint against Zemin, it held that the government's suggestion of immunity was conclusive and must be accepted without reference to the plaintiff's underlying claim that the doctrine of head of state immunity does not apply to violations of jus cogens norms. The court did not address the implications, if any, of Zemin's subsequent departure from office on the question of immunity.
With respect to the complaint against Office 6/10, the Seventh Circuit ruled that although the district court had reached the correct result, it erred in rejecting the government's argument as to Zemin's inviolability from service of process. It held that the government's power to recognise the immunity of a foreign head of state includes the power to preclude service of process on the head of state, even service directed at a third party, as both questions pertain to the effective conduct of foreign affairs and diplomatic relations.  Thus finding service of process to be defective, it dismissed the complaint against Office 6/10 without considering whether Zemin was an agent of the Office or whether there was a basis for personal jurisdiction over the Office.
Finally, the Seventh Circuit noted, in dictum, that its ruling did not imply an "absolute bar" on service of process on a head of state and that there may be limited circumstances where service would be permissible. "For instance, it said, 'the Executive Branch may not choose to recognize the immunity of a visiting head of state.  In that case, service of process on the head of state would be permissible to reach the head of state himself and would, we suggest, be permissible where the service of process is also aimed at a third party (assuming, of course, an agency or similar relationship between the head of state and the third party)." [17] This statement is in keeping with earlier case law linking determinations of immunity (and, hence, inviolability) to recognition by the executive branch. [18]  
The Mugabe and Zemin cases address a complex area of law governing the relationship between general rules of immunity and the core principle of individual responsibility for international crimes. The International Court of Justice (I.C.J) addressed this question in the Congo v Belgium [19] case. There it held that under customary international law a foreign minister (and by extension a head of state) enjoys absolute immunity from "any act of authority of another State" regardless of the gravity of the charges involved, for as long as he or she remains in office. A number of other national courts have reached similar conclusions, dismissing human rights charges against serving heads of state cases on immunity grounds. [20] Because Mugabe and Zemin were serving heads of state at the time proceedings were filed against them, the dismissal of the complaints against them is in line with international and state practice. Although the appeals court in Mugabe based its decision on diplomatic immunity, it is widely accepted that heads of state enjoy at least as much protection under customary international law as diplomatic agents under the Vienna Convention.     
On the other hand, there are inconsistencies between the treatment of the district court in the Zemin case of former head of state immunity and emerging norms of customary international law. Beginning with the landmark decision of the UK House of Lords in the Pinochet case, it is now increasingly accepted that former heads of state do not enjoy a lasting immunity for acts taken in violation of international criminal law, even when committed under the guise of official authority.  In stating that as a former head of state, Zemin continued to enjoy immunity for all acts taken in an official capacity, the district court failed to take regard of this principle. Although its reasoning was not shared by the appeals court, neither was it squarely overruled.
A novel issue raised by the Mugabe and Zemin cases is the full scope of a head of state's immunity and inviolability from other forms of a foreign state's judicial process where there is no direct assertion of compulsory jurisdiction over the head of state as such. In finding the service of process on a head of state in respect of a complaint against a non-immune third party to be improper, the appeals courts in Mugabe and Zemin took a comprehensive view of an incumbent's protection. A similar question is currently pending before the I.C.J. in a case between the Republic of Congo and France, [21] relating to a request by a French investigating judge to examine the Congolese President, Denis Sassou Nguesso, as a witness in an investigation into human rights abuses occurring in the Congo. France does not dispute that President Nguesso is entitled to full immunity from its jurisdiction, but argues that the proposed deposition does not constitute a coercive legal action that would violate these immunities. It remains to be seen whether the I.C.J. will accept that argument, and if it does, whether U.S. courts would follow suit.
About the author:
Sarah Andrews is a policy analyst at the Organisation for Economic Cooperation and Development (OECD) in Paris, France. She holds an LL.M. from Georgetown University Law Center, in Washington, D.C., and an LL.B. from University College Cork, Ireland. The opinions expressed in this Insight are hers alone.
[1] Tachiona v. United States, 386 F.3d 205, 2004 U.S. App. LEXIS 20879 (2d Cir. Oct. 6, 2004) (Tachiona II).
[2] Wei Ye v. Jiang Zemin, 383 F.3d 620, 2004 U.S. App. LEXIS 18944 (7th Cir. Sept. 8, 2004).
[3] Alien Tort Claims Act of 1789 (28 U.S.C. §  1350 (2000)).
[4] Torture Victim Protection Act of 1991 (28 U.S.C. §  1350 note (2000))
[5] When a case is brought against an incumbent head of state in a U.S. court, it is common practice for the government to file an official "suggestions of immunity" with the court pursuant to 28 U.S.C. § 517. Once issued, these suggestions are deemed conclusive and binding upon the court.
[6] 1 U.N.T.S. 16, 21 U.S.T. 1418 (1946).
[7] 500 U.N.T.S. 95, 23 U.S.T. 3227 (1961).
[8] Tachiona v. Mugabe, 169 F. Supp. 2d 259 (S.D.N.Y., 2001) (Tachiona I).
[9] 28 U.S.C. §§ 1602 et seq.
[10] For further discussion of the district court's decision, see ASIL Insight, Partial Victory for Zimbabwe President Mugabe in U.S. Litigation Alleging Human Rights Violations (March 2002), at http://www.asil.org/insights.htm.
[11] For further discussion of this point, see International Law in Brief, Oct. 30, 2004, at http://www.asil.org/resources/e-newsletters.html.
[12] 386 F.3d at 224.
[13] Under U.S. and customary international law principles, sitting heads of state enjoy absolute immunity (ratione personae) from foreign jurisdiction whereas the former heads of state enjoy immunity only for official acts taken during their term of office (ratione materiae).
[14] Plaintiffs A, B, C, D, E, F v. Jiang Zemin, 282 F. Supp. 2d 875 (N.D. Ill., Sept. 12, 2003).
[15] 267 F. Supp. 2d 907, 915-17 (N.D. Ill., June 23, 2003).
[16] 282 F. Supp. 2d at 885.
[17] 383 F.3d at 629.
[18] In the criminal case against General Manuel Noriega, Panama's former military ruler, the Eleventh Circuit rejected Noreiga's argument that he was entitled to head of state immunity as the de facto ruler of Panama, finding that immunity from jurisdiction is a privilege extended only to those officially recognized by the United States. United States v. Noriega 117 F.3d 1206, 1212 (11th Cir. 1997).  Similarly, in a case against Radovan Karadic, the leader of the self-proclaimed Republica Srpska, the Second Circuit refused to recognise Karadzic's claim to head of state immunity as he was never recognised by the US government as "the head of a friendly nation." Kadic v. Karadzic, 70 F. 3d 232, 248 (2d Cir. 1995).
[19] Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Int'l Ct. Just., Feb. 14, 2002, reprinted in 41 I.L.M. 536 (2002).
[20] For example, Belgium dismissed a case against Israeli Prime Minister, Ariel Sharon, in 2003; France dismissed a case against Libyan leader, Col. Ghaddaffi, in 2001; Spain dismissed a case against Cuban leader, Fidel Castro, in 1999; and the UK refused a private application for an extradition warrant against Zimbabwean President, Robert Mugabe in 2004.
[21] ICJ, Certain Criminal Proceedings in France (Republic of the Congo v. France), application of 9 December 2002. For a summary of the case see, P.H.F. Bekker, "Prorogated and Universal Jurisdiction in the International Court: The Congo v. France," ASIL Insights (April 2003), at http://www.asil.org/insights/insigh103.htm.