On January 20, 1649, King Charles I of England was brought before a court established by Parliament--the High Court of Justice--and charged with being "tyrant, traitor, murderer." For the first time in history, a head of state was charged in a court with the crime of tyranny. After the charges were read, Charles was asked to plead guilty or not guilty. He responded: "I would know by what power I am called hither."
He was raising a good question. Because under the common law of England, "Rex is Lex"--the King is the Law: the law is the King's instrument, and therefore the King is above the law, and he is immune from legal prosecution. "The King can do no wrong." Moreover, the King holds his sovereign authority by divine right, and therefore he is subject to no higher authority other than God himself (Robertson 2005: 49, 151-57).
The High Court of Justice claimed that it had the authority to try Charles under the laws of God and Nature. The appeal to the laws of God as manifested in the Bible was dubious because the Bible was so obscure on this question of God's view of monarchy that the Bible could be cited by both the supporters and the opponents of Charles.
The court's appeal to the laws of nature was also controversial although it was strengthened forty years later by John Locke's account of the state of nature and the natural right of the people to punish tyrannical kings. Locke's argument has been confirmed by the modern Darwinian explanation of the evolutionary state of nature in which human beings had a natural propensity to resist oppressive dominance and punish would-be tyrants for violating the law of nature.
The second time in history that a head of state was put on trial for the crime of tyranny was the trial of Louis XVI in 1792, when the French National Assembly tried and convicted the King, and then sentenced him to be executed. At the trial, Louis argued that he was innocent of the charges against him. But the National Assembly--acting as both judges and jurors--ruled that he was guilty and that he should be executed by being beheaded--the same punishment suffered by Charles I (Walzer 1993).
The next development came in 1945 with the Nuremberg Charter, which established the use of international criminal law to punish heads of state and political and military leaders for war crimes and crimes against humanity. The Nuremberg Charter defined those war crimes and crimes against humanity, and it rejected the principle of "sovereign immunity" (in Article 7): "The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment" (Robertson 2012: 313-24).
Without explicitly saying so, the Nuremberg Charter was implicitly appealing to the argument of Locke and Emer de Vattel that the international arena is a state of nature governed by a law of nature enforced by the natural right of individuals and states to punish those who violate that law. (I have written about this in some previous posts.)
Unfortunately, the International Military Tribunal at Nuremberg (1945-1946) was not a model of fair and impartial procedures. For example, the judges and prosecutors were from the allied countries that had fought Nazi Germany--Great Britain, the U.S., France, and the Soviet Union. And the court ruled against tu quoque ("you too") evidence that the defendants were accused of war crimes that had been committed by the Allies in the war. Most notably, there was no accountability for Stalin as a mass-murdering head of state.
Similarly, the International Military Tribunal of the Far East established in Tokyo by U.S. General Douglas MacArthur for trying Japanese war leaders was in many ways a mockery of justice. The most blatant injustice was MacArthur's decision that the worst Japanese war criminal--the Emperor Hirohito, the supreme commander--would be exempt from trial, while death sentences would be given to politicians and generals who were accomplices of the Emperor.
Neither the Nuremberg trials nor the Tokyo trials tried any heads of state. It was not until General Augusto Pinochet's arrest in London in 1998 that an English court found that a former head of state (in Chili) who had ordered the torture of prisoners must face trial and thus does not have sovereign immunity from criminal prosecution under international humanitarian law. But there was no trial because Pinochet was later released on medical grounds (Robertson 2012: 404-45).
Then, in 1999, Slobodan Milosevic, the President of the Federal Republic of Yugoslavia, became the first sitting head of state to be charged with war crimes (in the Yugoslav Wars). He was indicted by an international criminal tribunal established by the United Nations in The Hague. He was put on trial beginning in 2002. Milosevic acted as his own defense lawyer, and his outbursts in the courtroom created chaos. He died by heart attack in 2006 before the prolonged trial could be finished (Robertson 2012: 486-495).
Since the trial of Louis XVI, there has been only one case of a head of state being tried, convicted, and executed for crimes against his people--Saddam Hussein in 2006. Hussein was the President of Iraq when the U.S. invaded his country and overthrew his government in the spring of 2003. He eluded capture until December of 2003.
Since Iraq was torn by a vicious civil war fought by opposing Shia and Sunni factions, with the U.S. military as an occupying power, it seemed impossible for Hussein to have a fair trial conducted by an Iraqi court. There were proposals for an international tribunal in The Hague, or somewhere else outside Iraq, that would conduct Hussein's trial. But an international court could not have imposed the death penalty, which was demanded by the Bush administration and by the Iraqi factions that wanted vengeance against Hussein.
Finally, in 2005, the Bush administration allowed a newly elected Iraqi government to set up the "Iraqi Higher Criminal Court" for trying Hussein. There were no international judges on the court (Robertson 2012: 720-27).
It was generally thought that the best charges to be brought against Hussein would be genocide against the Kurds and the marsh Arabs. But strangely, the case selected for trial was Hussein's alleged reprisal killing in 1982 of 143 men in the Shia village of Dujail, after a failed attempt on his life. During the trial, it was clear that many of the villagers really had been guilty of a conspiracy to murder Hussein.
When Hussein first appeared before the examining magistrate, he spoke words that echoed the first words of Charles I questioning the authority of the court. "Who are you?" Hussein asked. "I want to know who you are. What does this court want? I preserve my constitutional rights as the President of Iraq. I do not recognize the power that authorized you . . . I do not want to make you feel uneasy, but you know this is all theatre by Bush." He had a good point because the 1968 Iraqi Constitution gave the president absolute immuni8ty from prosecution for any crime committed while in office. The court needed to appeal to some law higher than the constitution. And it was not clear that the alleged killings in Dujail were an international crime in international law.
Holding the trial in the midst of a civil war created security problems that made the trial unfair to all of the participants. Some of the judges and lawyers were assassinated. Most of the members of the tribunal did not show their faces. Witnesses were intimidated, and many refused to answer their summonses.
Despite all of this disorder, the trial concluded with a conviction and a death sentence for Hussein, who was executed on December 30, 2006.
What this history shows is that there has not yet been a clearly fair trial and conviction of a head of state for crimes against humanity under the modern international law of human rights.
The question of whether the head of state should have a sovereign immunity from criminal prosecution was recently raised again in the U. S. Supreme Court case of Donald Trump v. United States (2024). As I indicated in a previous post, by a six-to-three decision, the majority of the justices decided that as a former president Trump could not be tried as a criminal for any of his "official acts" as President--such as his attempt to overturn the outcome of the presidential election of 2020. In the words of Justice Sonia Sotomayor in her dissenting opinion, this meant that "in every use of official power, the President is now a king above the law."
Since the majority decision in this case had no clear grounding in the original meaning of the Constitution, the majority was actually amending the Constitution to say that President Trump has a sovereign immunity comparable to that claimed by King Charles I. Not only did this decision of the Court violate the Constitution, but it also violated the law of nature as shaped in the Lockean evolutionary state of nature.
Consider Sotomayor's warning:
The Court effectively creates a law-free zone around the President. . . . The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority's reasoning, he now will be insulated from criminal prosecution. Orders the Navy's Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune (29-3).
Roberts said nothing to show that these are not realistic possibilities under his opinion. He did ridicule Sotomayor for "fear mongering on the basis of extreme hypotheticals" (40). But since Roberts said that the President has absolute immunity for any exercise of his "core powers," and since the power of the President as Commander-in-Chief of the military is surely a "core power," ordering his military to assassinate a political rival must be within the absolute immunity the Court has created.
In taking vengeance against his political opponents, Trump would be following the example of King Charles II, the son of Charles I, who had almost all of the men involved in the trial of his father killed shortly after the Restoration of the Stuart monarchy in 1660.
I do need to say more about the trial of Charles I, which I will do in another post.
REFERENCES
Robertson, Geoffrey. 2005. The Tyrannicide Brief: The Story of the Man Who Sent Charles I to the Scaffold. New York: Pantheon Books.
Robertson, Geoffrey. 2012. Crimes Against Humanity: The Struggle for Global Justice. 4th edition. New York: The New Press.
Walzer, Michael. 1993. Regicide and Revolution: Speeches at the Trial of Louis XVI. New York: Columbia University Press.
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