#also yes i committed atrocities in that spain game

[homosexualasstransbian]

speaking of, i played a spain game near the release of the last dlc (you should NOT pirate paradox game, it is definitely NOT morally acceptable) and i just took the entirety of north and south america and australia and kicked the ass of france multiple times and i had -700 relationship maluses from aggressive expansion in the HRE.

rule

[flatandsassy]

Oh hey I never actually posted my first essay outline from this term. Emily says she likes them but heaven forbid I just like, send them to Emily. Plus this one has the best jokes and is entitled “who would win in a fight between head of state immunity and jus cogens norms?” because that is a burning question we all have.

So the question we’ve got going today is “who would win in a fight between head of state immunity and jus cogens norms?” and folks I am here today to defend the status fucking quo. Hold on, you say, I thought you were supposed to argue something contentious? Look, number one, the status quo is five minutes old, do you know how hard it was to find sources that were written after all the case law I’m relying on was established? Number two, everyone is leaving the goddamn ICC because they’re morons who think there’s a conflict between customary international law being like “hey don’t arrest presidents of other countries when they visit you” and the ICC being like “please arrest war criminals we don’t care if they’re presidents” which there ISN’T, did you even READ the Rome Statute before you signed up for this, because HEY YOU SIGNED UP FOR THIS yes I will fight you even on Bashir JUST TRY ME (fun fact like a month after writing this outline I was reading the Rome Statute for fun and discovered an article that totally proved me wrong on this so my now official position is ‘The ICC was 100% within its rights to indict Bashir but its member states have zero legal obligation to arrest him. Which. WHY IS THAT A SITUATION THAT IS ALLOWED BY THE ROME STATUTE. WHO WROTE THIS.) And three, it seems like all of academia has its panties in a knot about the Arrest Warrant Case and I have had a deep abiding love for the Arrest Warrant Case ever since I first learned about it and yes maybe it contradicts basically all the other jurisprudence about this and yes maybe the ICJ somehow got confused and mixed up head of state immunity and minister of foreign affairs immunity? But I spent all goddamn day trying to come up with a good legal reason why it’s a good decision despite all that because I will not ever give Belgium the satisfaction of saying it was justified in getting mixed up in the Congo again and honestly I’m pretty fucking pleased with the logic I came up with. So yeah. Status quo, which is neatly summarized in a flow chart I made at 6am on no sleep, is actually great, and it’s actually contentious to say that. LET’S GET STARTED.

What the fuck are you talking about?

Imagine you’re the president of a country, and you go on a trip to improve relations with your neighbour or negotiate a trade deal or represent your country at some international forum or just, you know, do presidenty things. But you get off the plane and you are arrested and thrown in jail. So now you have two problems: one, you can’t do presidenty things if you’re in jail, and like even if you’re about to go to a country and they call you up and are like “hey we’re for sure gonna throw you in jail if you turn up here” that still means you can’t do presidenty things there which sucks, and two, all the folks back home are like hey, didn’t we have a president? Wasn’t that president the one we picked ourselves which we have the right to do? So like, they’re getting pretty pissed.

According to international law this is the WORST THING THAT CAN HAPPEN TO A COUNTRY. Which, fair enough, that sounds pretty shitty. So the solution is that if you are president (or some other kind of head of state), NOBODY IS ALLOWED TO ARREST YOU NO MATTER WHAT (aka head of state immunity). And that’s been the case for forever and everybody agrees and you will get in SO MUCH TROUBLE if you arrest a president. You will get in slightly less trouble if you arrest diplomats or foreign ministers (lol or not wtf ICJ) but the LITERAL WORST is if a president is arrested. Oh right this is also because the head of state is the manifest legal existence of the state, which sounds like some made up bullshit but if you buy into it, arresting a president is basically the same as arresting a country, and you are super not allowed to arrest countries because that’s just nonsense.

But in the last like, 20ish? Years? There have been more and more people who are like you know what actually I CAN think of things that are worse for a country than having their president thrown in jail. Like, idk, genocide? Look it up man I hear it’s super bad for you.

But there are still lots of people who are like, nah bro you don’t understand, the entire world is built on this system with countries and each country gets to do its own thing and stay out of everyone else’s business and if we don’t stick to this system it’s going to collapse into a giant mess of everyone conquering everyone, we FOR REALS need to not fuck with sovereignty.

But then the first guys come back and they’re like nah bro YOU don’t understand, yes this whole immunity thing is important and has been around forever, but you know what else is important and has been around forever (by “important and has been around forever” I mean “customary international law”)? Rules like DON’T COMMIT GENOCIDE DON’T VIOLATE THE GENEVA CONVENTION DON’T TORTURE PEOPLE ETC. those are called jus cogens norms and following them trumps EVERYTHING.

So we’ve got these two groups of people staring each other down and it’s like, maybe we could find a way to throw people in jail for committing atrocities *without* having the entire global order collapse? Maybe under certain circumstances we COULD arrest presidents for violating jus cogens norms and if we’re reasonable about it nobody will freak out and we’ll all be okay. Just saying.

Let’s go see if we can find some rules about this.

HAVE YOU BEEN FIRED YET Y/N

Okay this time imagine that you’re not a president of a country, but you USED to be president of a country. And you show up in some other country and they’re like “dude, you did some fucked up shit when you were president, we are arresting your ass.” On one hand, you no longer do presidenty things, you no longer represent your populace, and you are no longer the state incarnate. In that sense you are now just regular joe war criminal.

But on the other hand, flashback to when you WERE president, and you’re trying to do your thing but you keep thinking like, “if I do this thing will people from another country arrest my ass the moment I’m done being president?” which is basically that other country getting all up in your business just by threatening to arrest your ass which isn’t cool (and is also incentive to become PRESIDENT FOR LIFE which we’ll talk about later). Also maybe you’re not the state incarnate now (the flashback has ended), but you were the state incarnate when you did that fucked up shit so it’s basically like the state did that and you can’t arrest the state!

Anyways this is what happened to Pinochet who used to be a dictator in Chile and did so much fucked up shit oh my god and so when he showed up in the UK the Brits arrested his ass. They actually did it on behalf of Spain? Which, what? Not important, the point is that a bunch of old dudes got together and were like “can we arrest his ass? Like if he were still president we wouldn’t go near him but the rule is ‘no arresting presidents’ and he is no longer president.” And then they arrested his ass.

This also happened to Yerodia who was minister of foreign affairs (yes I know that’s not a head of state but if it applies to a foreign minister it extra applies to a president) for the Congo and WHILE HE WAS STILL IN THAT JOB Belgium was like “dude stop telling everyone to commit genocide, now we’re gonna arrest your ass.” And the Congo was like “what the fuck” and went and told the ICJ and the ICJ went to Belgium and was like “PUT THAT THING BACK WHERE IT CAME FROM OR SO HELP ME” (to be clear they hadn’t actually arrested him yet, they’d just issued the warrant, so they didn’t have to put him back, they just had to cancel the warrant. Also probably it’s not nice to call him a thing, but one, that’s what the quote is, and two, I’m reasonably certain he called Tutsis cockroaches at some point so I don’t feel that bad). Basically the ICJ was like “dude you gotta wait until he’s done being in office” and Belgium was like “actually it’s been a while and he’s not in office anymore, can we arrest him now?” and the ICJ was like, “did you decide to arrest him while he was still in office?” and Belgium was like “maybe….” And the ICJ was like “goddamnit Belgium you signed the Vienna Convention on Foreign Relations you know better than this”

(Also side note from me because I cannot talk about this case without ranting a little bit: Dear Belgium, NOBODY EVER WANTS YOU ANYWHERE NEAR THE CONGO’S SOVEREIGNTY EVER AGAIN I KNOW YOU ARE TRYING TO HELP BUT YOU ARE ACTUALLY JUST BEING NEOCOLONIALIST AND GROSS YOU ALREADY FUCKED UP THIS COUNTRY ONCE PLEASE STOP TRYING TO HELP AND GO SIT IN A CORNER).

So to conclude, if you’ve been fired from being president, you are fair game.

DID YOU SIGN UP FOR THIS Y/N

Look I don’t get why this is so hard. Because head of state immunity is all about protecting the state, if the state is like “you know what we’re gonna take a pass on that immunity thing” then you DON’T HAVE IMMUNITY. (This is a lie, it’s so hard because it is frankly mind-boggling what counts as legal consent but something something Kirgis I don’t feel bad for you)

Level one (easy mode, aka stfu Kenyatta): the Rome Statute has a bit in it that’s like “we don’t give a fuck if you’re head of state” like it’s right in there. Which is not really surprising because the alternative would be “go ahead and be PRESIDENT FOR LIFE you can avoid jail and score! You get to keep being president in the meantime.” So if you ratified the Rome Statute, you ratified the bit that says that it’s cool for the ICC to prosecute heads of state, so WHY ARE YOU SURPRISED WHEN THE ICC ARRESTS YOUR ASS???

Level two (fine print mode, aka stfu Milosevic): Okay you didn’t sign up for the ICC. Fair enough. Quick question, though, did you sign up for the UN? Hells yes you did everyone signs up for the UN! Well friend, you may notice that the UN Security Council rules your ass now and can do whatever the fuck it wants in the name of peace and security using a nifty little thing called Chapter VII. So if they decide that your country needs to be subjected to a special international tribunal and they set it up through Chapter VII, you agreed to that because you ratified the UN Charter which says you agree to anything that happens through Chapter VII. Like I know it’s not super explicit but it *is* legitimate, that *is* what you signed, it’s nothing personal (probably). You signed away your sovereignty when you agreed that the UNSC could do whatever it wanted, and what they wanted was your immunity so hand it over.

Level three (spirit mode, aka stfu Taylor): So, say the UNSC set up a tribunal for your country but for reasons beyond comprehension they didn’t Chapter VII that shit. Is that your hail mary pass? NOPE nice try though. The court might not be a Chapter VII court but it was set up by the UN which means it was established in the SPIRIT of Article I, which is the most vague-ass fluff article ever and I find it HILARIOUS that this was a real argument used.  Also they were like “okay they didn’t say chapter VII but they said we could arrest your ass and they still have the powers of chapter VII” which is probably a better argument I guess? Why the fuck wasn’t the special tribunal for sierra leone established under Chapter VII

Level four (hard mode, aka stfu al-Bashir): So Sudan didn’t sign the Rome Statute. And there hasn’t been a special tribunal set up for it. Does that mean it hasn’t actually consented to having its immunity waived? HECK NO IT’S STILL A UN MEMBER. I read an article that was specifically dedicated to being like “waaaah the ICC doesn’t have jurisdictionnnnn” and it pissed me off so let’s deal with this shit. This dude was all “the ICC isn’t a UN body” like come the fuck on, the flag is blue and has olive branches for a reason. maybe it’s not directly part of it but it was still built out of the UN and still has direct links. And by direct links I mean THE SECURITY COUNCIL HAS THE AUTHORITY TO REFER CASES TO THE ICC. So that’s a pretty big link. Oh also THAT IS HOW AL-BASHIR GOT INDICTED. And when the security council does that, you know how they do it? CHAPTER FUCKING SEVEN. Like it is well established by this point that by signing the UN Charter, you are signing up to give up whatever sovereignty the security council sees fit, so take your pacta tertiis and shove it up your ass. Also just on a practical note this is the only mechanism we have to combat the PRESIDENT FOR LIFE phenomenon and personally I’m in favour of NOT letting genocidal maniacs run shit for the rest of forever so I’d really appreciate it if everyone could shut up about how awkward it is when al-Bashir comes to visit because he’s supposed to be under arrest, and instead maybe idk ARREST THE GENOCIDAL MANIAC WHO CAME TO VISIT.

You know when I see it all laid out like this I find it really amazing that the primary body of the United Nations, which is a statist organization if there ever was one, really has the power to shake down other member states for their sovereignty like a bully looking for lunch money. How is everyone okay with this? Oh wait they’re not that’s why this essay is contentious. Welp for once I’m on the side of the P5 screwing everyone over, because they have good reasons here.

So, to sum up: if you’re no longer in power, you’re fair game. If we can twist your membership to various things into something that looks like consent, you’re fair game.

JUS COGENS AKA DID YOU FUCK SHIT UP REALLY REALLY BAD Y/Y

Okay let’s just quick get through the first part of this analysis, which is just “nobody gives a fuck if you only did regular bad guy stuff.” This essay is about jus cogens, which isn’t like “don’t murder” levels of bad so much as it’s like “don’t wipe out and/or enslave an entire culture” levels of bad. So if this is obvious because nobody cares otherwise, why is there a special section about it?

Not only does nobody care if you only reached mediocrity in your path to supervillainy, also we can’t really do anything about it. Your head of state immunity has got you covered, hypothetical president who killed twelve people for reasons that had nothing to do with conflict or their ethnicity!

So why doesn’t it protect you if you committed jus cogens crimes? Are these like special magical crimes where we’re just like “man that is so much worse than losing head of state immunity, therefore you lose your head of state immunity?” Honestly kind of yes, but that’s such annoying analysis. Let’s go back to Pinochet for a second here.

So remember those old dudes who were like “should we throw this dude in jail now that he’s not president?” They weren’t just like “yeah it’s fine because he’s not president” because for a while they were like “he was president when he did those things so he should still have immunity for them.”  But finally they were like, “you know what? No. If you’re violating jus cogens, you’re not a president committing supercrimes, you’re a supercriminal who has been given WAY too much power.” Like it’s contrary to the nature of the state to violate jus cogens, so if you do it you are no longer the state incarnate. I know it’s still a little magical woo-woo these extra bad crimes are special because they’re extra bad, but I actually really like this framing.

It also goes really well with principles from the Nuremburg tribunal, which declared that international crimes are committed by people (I’m pretty sure it said men but you know it was the 40’s), not abstract entities (aka States) and we can only fight these crimes if we can punish individuals. Which. Yep.

So, idk, let’s try doing an application? To that theoretical case we’re talking about that doesn’t exist? Hmmmm.

THANK GOD I NEED FEWER SOURCES FOR THIS SECTION

Okay so here’s what bugs me about all of this. That framing that I just talked about that I really like? As a reminder (yes it was ten lines ago) it basically is like ‘you don’t get head of state immunity for jus cogens crimes because they’re default personal rather than state actions.” Which is great! But my question is this: that logic basically implies that there should NEVER be any immunity for jus cogens violations? Which is not the jurisprudence (I am still only 83% sure I’m using that word correctly I should check that) we’re dealing with today. Here is a chart that is less cool than my original chart but simpler and more likely to be included in my actual paper:

                      International Court          Universal Jurisdiciton

Current HoS  |     No Immunity         |           No Immunity

 Former HoS |     No Immunity         |          IMMUNITY

Which is weird, right? If Yerodia violated jus cogens norms, it shouldn’t matter that he had immunity, it shouldn’t matter that he was still in office, it shouldn’t matter that it was Belgium trying his ass instead of an international tribunal, because according to the logic of the Pinochet decision, he wasn’t acting in the capacity of his office when he said those godawful things. The logic they used wasn’t “it’s okay because he’s no longer a head of state,” it was “he NEVER WAS head of state in the context of the actions we’re talking about.” Which raises the question of “why you gotta be such a little bitch and still say you would never arrest him if he was still a head of state?” and like, I’m not sure if the ICJ took this into consideration (and if they did and came to different conclusions my whole essay is fucked LOL) but assuming we’re aiming for a unified worldview on when it is and isn’t okay to violate immunity (which I mean, *I* am, at least) then Yerodia similarly wasn’t acting as Minister of Foreign Affairs when he got all genocidal. So why couldn’t Belgium arrest his ass as ordinary joe war criminal? Er. Ordinary joe genocidaire. Joenocidaire? Stop.

So if you look at that “rules” stuff we went over in far too much detail earlier, you will note that “you weren’t really head of state” is only one justification used. The other one is “you waived your immunity even if you didn’t mean to.” And if you are like me, you might spend a whole afternoon being like “who gives a fuck whether or not you waived your immunity when we’ve decided in the Pinochet case that you never had it?” and in that case you, like me, would be WRONG. I mean one, from a practical standpoint, we don’t have to establish that what you did was violate jus cogens if you’ve waived immunity, which is nice. We just have to make a tenuous connection to ANY PART of the UN Charter and then presumably prove that prosecuting would be in the interests of peace and security. Which is not that hard. But the cooler thing, that I wish I had more buildup to because it’s really the point of everything, is that these two justifications actually serve different purposes. “what are you talking about, they are both justifications for ignore head of state immunity, that’s the same purpose” to which I say GOD LET ME FINISH MY THOUGHT.

If we’re going with the “you never had immunity” argument, that is, yes, a justification for you to be prosecuted, and it’s a good one. BUT I would say that it is NOT also a justification for depriving a country of its head of state. This is a reason for head of state immunity WAY back at the beginning of everything, and even if you decide that someone is too evil to get away with what they did, it doesn’t erase the practical harm of a bunch of people being like “hey so that guy is our president???? Can we please have him back?????”

And yes I can hear you screaming “But that’s true no matter what when you’re prosecuting a current head of state!!!!!!11!” which YES. I KNOW. CHILL. But if it’s an international court, you asked for it. I think it’s safe to assume that if you consent in whatever fucked up way we assume you’re consenting when you signed up for the UN, if we can read that as “sure you can arrest our current head of state in the name of peace and security” you recognize that doing so is going to deprive you of your head of state. Surely we don’t have to spell that out for you.

But there’s just no way to pull that shit under universal jurisdiction. Nobody anywhere even implicitly is like “we trust Belgium to decide unilaterally when we need to be deprived of our head of state for the sake of global peace and security.” Which legally means you can’t do it, and also the reason that nobody would ever do that is the practical reason why it makes sense to let international courts do this but not countries: Belgium may well have an ulterior motive (like, idk, they somehow magically forgot that decolonization happened?) whereas any international tribunal is (in theory! And that’s what we’re talking about here!) impartial and isn’t gonna deprive a country of its president for funsies.

So to sum that up, the nullification of immunity by virtue of jus cogens violations is a sufficient condition to prosecute *former* heads of state, which is why it was cool to arrest Pinochet. But it’s not sufficient to justify depriving a country of its current head of state without their (vaguely implied) consent, which is why it wasn’t cool to arrest Yerodia (okay fine it’s not sufficient to justify depriving a country of any major member of government GOD Belgium if you were going to fuck up this badly could you have at least issued an arrest warrant for the president of DRC instead?????))

This actually raises an interesting question about like, states that can’t be said to have consented to *anything* not even the UN. If the president of Kosovo goes on a wild rampage Pinochet style, we can’t actually be like “too bad, you secretly consented to an international court that didn’t even exist yet throwing you in jail!” because they could be like “we haven’t consented to shit just try us” so if that happens I guess we’d have to wait until they were out of power. Which is annoying but what can ya do. Probably argue that Kosovo isn’t a State, and then shit gets really messy because then it’s Serbia’s UN membership that would count? But wow that’s going to make a lot of people really angry to say that Kosovo *consented* to UN control by virtue of its separation from Serbia not being recognized. Like. Ouch. Also if you aren’t a State how can you have a head of state? Shit’s complicated, man.

So to conclude, if your question (my question) is “who would win in a fight between the jus cogens norms and the immunity norms” the answer is jus cogens norms. Immunity only takes it when the level of sovereignty violation we’re talking is literally one country trying to oust the leader of another country. And I think that’s the way it should be, because that’s about the point where I’m like “okay maybe if we do that the whole conception of sovereign states is circling the drain.” Anything less than that, though, and I am down with whatever moronic justifications we can try to use to throw bad guys in jail. Yay!