WEEKEND EDITION JULY 5-7, 2013
US (and French) Courts Have Ruled Head-of-State Immunity is Absolute
It is clear that the entrapment and forced landing in Austria of the official airplane carrying Bolivian President Evo Morales was the work of the US, which was obviously behind the decision by France and Portugal to deny air rights to the flight, and which also was obviously behind the Austrian government’s demand to be allowed to search the jet after it landed. After all, those countries have no interest themselves in capturing US National Security Agency whistleblower Edward Snowden, who is only Obama’s and the NSA’s quarry.
So it is worth examining at how the US views the legal status of heads of state under international law and custom.
In 2004, the US Court of Appeals for the Second Circuit (New York) ruled that Robert Mugabe, the corrupt and brutal leader of Zimbabwe, enjoyed “absolute immunity” while inside the US on a visit to New York. The decision stemmed from 2001, when a group of citizens of Zimbabwe sought to have Mugabe arrested in New York on charges of “extrajudicial killing, torture, terrorism, rape, beatings and other acts of violence and destruction.” A month earlier, the US Court of Appeals for the Seventh Circuit (Chicago), reached a similar conclusion in a case involving then Chinese President Jiang Zemin.
The US government had filed briefs in both those cases arguing that both Jiang and Mugabe (as well as Mugabe’s foreign minister, who was traveling with him), had absolute immunity as traveling heads of state.
No surprise that, given that the head of state of the US at the time of the court proceedings and the Appellate Court hearing, George W. Bush, and his vice president Dick Cheney, were already themselves guilty of serious war crimes and crimes against humanity for their illegal invasion of Iraq, their authorization of kidnappings, extrajudicial killings and torture, and their financing of acts of terrorism.
Given that it was the French who first caved in to US pressure to block the flight home from Russia to Bolivia of President Morales, it is interesting to note too that a the French Supreme Court, in 2001, ruled in a case involving an effort to charge Libyan leader Muammar Qaddafy with the downing of a US civilian aircraft over Lockerbee, Scotland, that heads of state have absolute immunity from prosecution while in office, except for universally accepted crime of genocide.
This makes the treatment of Bolivia’s President Morales, and the behavior of the European countries involved — France, Portugal and Spain initially for trapping Morales in mid-air and forcing him to land in Austria, Austria and Italy for trapping him in Austria and Austria for insisting on searching his presidential plane, and Russia for not protesting in the most forceful way the insulting treatment of a head of state that Russia had just hosted in a summit meeting — so outrageous.
Far from being guilty of any crime, Morales was detained by the actions of the US, France, Portugal, Spain and Austria simply because the US wants to capture Snowden, and thought Morales might be transporting him on his plane back to asylum in Bolivia. But had he been doing so, it would have been entirely within the rights of the president of Bolivia, who as a head of state could legally carry anything he wanted in his plane, whether a petitioner for sanctuary or a load of cocaine. (The US has long abused diplomatic immunity to ship contraband like weapons for use in various coup attempts in so-called “diplomatic pouches,” which are exempt from customs searches.)
The US of course, is the most egregious offender in this latest saga. In its desperate effort to capture Snowden, it is trashing the Vienna Convention of 1961 and a tradition of diplomatic immunity for heads of state that is of much more ancient origin.
The US does this not because it is legal, but because it can. American military and economic power allow the US government to brazenly ignore international law and custom because at least for the present no foreign power would dare to arrest or detain a US leader in the manner that Morales was detained and forced to allow his aircraft to be searched like a common criminal suspect. That situation could, of course change in future years, at which point Washington’s role in this incident will surely be brought up in some court.
Meanwhile, though, the leaders of smaller states with less clout than the US, from France and Germany to the likes of Austria, Italy, Spain, and the nations of South America, need to contemplate a new world in which their leaders could be summarily detained, humiliated, served with criminal or civil complaints or otherwise harassed while on official state visits, with the Morales case cited as an example.
Little wonder that the leaders of many Latin American countries, long used to being humiliated by the US, have been belatedly rising to the defense of Bolivia’s president, only days after they had accommodatingly declined to offer Snowden asylum.
One has to hope that they will rethink their earlier cowardice in refusing to offer asylum to Snowden, who is still trapped in the stateless limbo of Moscow’s Sheremetyevo Airport, because of Russia’s own chickenshit cowardice about granting him some kind of at least temporary residency permit while he seeks some permanent asylum from US prosecution as a “traitor.”
The latest news is that little Iceland (pop.: 320,000), may by showing the way. The Left-Green Party there has introduced a bill in the country’s parliament, the Althing, which would offer Snowden Icelandic citizenship (and of course a passport). The odds may be long, with that party only having six seats out of 63, but Snowden is popular in that country, so pressure could be brought to bear on other members of the body.
Meanwhile, France, Germany. Italy, Spain, and Austria, which have so shamelessly caved in to US pressure, should be ashamed of themselves. So should countries like Ireland, Finland, and other European countries which have pretended that they “might” consider an offer of asylum, but for the “difficulty” that poor Snowden’s US passport has been cancelled by Washington, so he cannot travel to their soil to make an application.
What rot! First off, as I wrote earlier, the mere fact that the US, violating its own laws, cancelled the citizenship and passport of a native-born American by executive decree without even a court hearing, doesn’t mean his passport, which he still possesses, cannot be recognized as a valid travel document by another country. It still has his photo identity as before. It still has blank pages able to accept a visa application, and it still has an expiration date that shows it to be valid. Since there is no international data base for passports, which are the property of each state that issues them, there would be no international file at a nation’s border stating whether a passport from another nation is currently valid. Snowden would certainly be stopped were he to try to use his cancelled passport to attempt, for some crazy reason, to re-enter the US, but as far as going to another country, it should work fine. Unless, that is, the country in question is under the thumb of the US.
Here’s hoping that Iceland’s Althing (parliament) does the correct and courageous thing and grants citizenship to Snowden, who has said all along that he hoped to settle in that country, which he said most closely adheres to his own values of freedom, freedom of information, and support for whistleblowers. It would be a beautiful act of conscience by a tiny nation against the official hypocrisy and gutlessness of Europe’s and most of Latin America’s leaders, and the lazy unconcern of the peoples of supposedly democratic Europe and the US, to see him welcomed there.
DAVE LINDORFF is a founding member of ThisCantBeHappening!, an online newspaper collective, and is a contributor to Hopeless: Barack Obama and the Politics of Illusion (AK Press).