When Vladimir Putin met with Donald Trump in Alaska in August, one prominent strand of social-media commentary had nothing to do with the possibility of a deal to end Russia’s war against Ukraine (the meeting’s ostensible purpose). Rather, it turned on the question of whether Putin—who faces an arrest warrant issued by the International Criminal Court, stemming from Russia’s wartime actions—could conceivably be arrested when he stepped foot on U.S. soil.
As a practical matter, of course, the answer was no—it wouldn’t happen, and not just because the Trump administration had no interest in making an arrest, or because the Russian reaction would be dangerous, or because the United States is not a member of the ICC. As a legal matter, most countries treat a serving national leader—a president, a prime minister, a king; whether its own or that of some other country—as having complete immunity from the jurisdiction of their national courts. Immunity is defined by Black’s Law Dictionary as an “exemption” from the duties and liabilities imposed by the law. A serving national leader with personal immunity cannot be arrested, detained, or judged.
But what happens after a national leader has left office? And what if he or she is accused of having committed crimes under international law while in office, such as torture or genocide? Can a former national leader ever be arrested by another country and judged by its courts for crimes committed elsewhere while in office?
The answer to that question is yes, or at least it has been: In recent decades, the vector of legal evolution has pulled international jurisprudence away from blanket immunity. To my mind, as an international lawyer who has been involved in cases dealing with international crimes, this is the right direction.
But images of the summit meeting in Alaska brought international law once again to the fore, and offered a reminder that the international legal regime is under threat. The reason relates not so much to Putin as to Trump. Specifically, the Supreme Court’s 2024 ruling in Trump v. United States—an immunity case that concerned a former president’s legal liability for actions in relation to official conduct—could have potentially far-reaching ramifications for international justice.
The idea that criminal law is applicable to any person—even a king or a president—is not new. In 1649, King Charles I was put on trial for a “wicked design to erect and uphold in himself an unlimited and tyrannical power to rule according to his will, and to overthrow the rights and liberties of the people.” Convicted, he paid with his head.
In 1764, the Italian jurist Cesare Beccaria offered a rationale for the idea that the criminal law should extend to rulers and why criminal sanctions should apply globally: “The certainty of there being no part of the earth where crimes are not punished may be a means of preventing them.”
That said, for centuries the rule was clear: A foreign head of state could never be subject to the jurisdiction of another country’s courts, either while in office or subsequently, in relation to official conduct. The immunity from prosecution was absolute. The U.S. Constitution, which came into force in 1789, makes no mention of immunity for the U.S. president, either while in office or afterward. But in 1812, the Supreme Court recognized that a serving foreign head of state had absolute immunity while present on American soil. It said nothing in that decision about immunity from criminal prosecution for the president. Indeed, the Court said nothing on the subject until July 2024.
It took a century after the Supreme Court’s 1812 ruling for the international legal regime to shift significantly. In 1919, in the aftermath of the First World War, the victorious powers agreed that Germany’s former ruler, Kaiser Wilhelm II, who had fled to the Netherlands, should be arraigned before an international tribunal on a charge of warmongering—a “supreme offense against international morality and the sanctity of treaties,” in the words of the Treaty of Versailles. This was a first: immunity extinguished because of the gravity of the offense, an international crime. No tribunal was established, however. Prosecutorial enthusiasm waned, and the Dutch government made clear that Wilhelm would not be extradited. He was never put on trial.
Still, a precedent had been set. In 1945, after the defeat of Nazi Germany, the four Allied powers—the United States, Great Britain, France, and the Soviet Union—brought Germany’s former leaders before an international tribunal at Nuremberg. In order to do this, they recognized new categories of crimes: aggression, genocide, crimes against humanity. For these, no one would have immunity. The crimes committed were heinous and crossed the line into international criminality.
Justice Robert Jackson took a leave of absence from the U.S. Supreme Court to serve as chief prosecutor of the Nuremberg tribunal. He also led the drafting of the tribunal’s governing statute, which provided immunity for no one, not even a former head of state. In a letter to President Harry Truman, Jackson set out his thinking. Immunity was an “obsolete doctrine” and “a relic of the doctrine of the divine right of kings.” It was also “inconsistent with the position we take toward our own officials”—a telling comment, because it seems to presume that the U.S. Constitution provided no immunity for a former American head of state. Jackson worried that giving immunity to former leaders would produce “the paradox that legal responsibility should be the least where power is the greatest.” As Jackson saw it, quoting an earlier British jurist, “even a King is still ‘under God and the law,’” and that principle likewise meant no immunity for Karl Dönitz (Hitler’s successor as Reich head of state) or Hans Frank (Germany’s head of state in occupied Poland). Both were tried and convicted, and Frank was hanged for his crimes, as were 10 others.
The principle of no immunity was widely applied. In the 1990s, the U.S. led the world in creating international tribunals for crimes committed in the former Yugoslavia and in Rwanda. Accordingly, former Serbian President Slobodan Milošević was indicted, arrested, and put on trial. (He died before the trial concluded.) When the International Criminal Court came into existence, in 1998, it dispensed with all immunities for international crimes over which it would have jurisdiction, not only for former heads of state or government (such as former President Rodrigo Duterte of the Philippines, who has been indicted, arrested, and transferred to The Hague) but also for serving ones. In addition to the warrant for Russia’s Putin, the ICC issued an arrest warrant for President Omar al-Bashir of Sudan when he was still in office, and it has issued one for Prime Minister Benjamin Netanyahu of Israel. (Like the U.S., none of these countries is a member of the ICC; they reject the court’s jurisdiction and argue that a serving head of state is entitled to immunity under general international law.)
Meanwhile, most of the world’s nations have also signed international agreements on genocide and torture, obliging countries to prosecute or extradite (to another country, wishing to prosecute) any person alleged to have committed such crimes. The agreements either exclude the right to immunity for any person or pass in silence on the matter. The U.S. is a party to both agreements.
By the turn of the millennium, one big element of the legal situation had become fairly clear: A former head of state enjoyed no immunity with respect to international crimes before international tribunals. What was not clear was what would happen if a former head of state accused of an international crime was brought before a national court in a country other than his own. Then came Pinochet.
Augusto Pinochet, the commander in chief of Chile’s armed forces, seized power in a coup d’état on September 11, 1973. As the head of a military junta and then as president, he led a regime that suspended democratic rule and due process, detained tens of thousands of people, and engaged in the widespread use of kidnapping, torture, and “disappearance” (including by means of helicopters, from which victims were dropped into the ocean). At least 3,200 people were killed in Chile during the Pinochet years, and thousands were tortured. The whereabouts of at least 1,000 people remain unknown.
Pinochet was well advised by seasoned lawyers, who knew the potential danger he faced under national criminal laws, including those of the U.S. In September 1976, his regime had used a car bomb to murder Orlando Letelier, Chile’s former defense minister, near Dupont Circle, in the heart of Washington, D.C. A year and a half later, Pinochet promulgated a sweeping amnesty law to prevent Chile’s courts from sitting in judgment on the crimes of his regime. Some years after leaving office, in 1990, Pinochet was appointed senator-for-life, a position that gave him the further protection of absolute immunity in Chile.
In 1998, believing that he was immune from legal challenge, Pinochet went to London, where he had tea with Margaret Thatcher and bought books about Napoleon from Hatchards, his favorite bookshop. On the evening of October 16, while recovering from a minor operation in England, he was arrested by Scotland Yard. The officers acted on a warrant issued by a judge in Madrid, who sought his extradition to Spain, charging him with genocide and torture, among other crimes. The case had started in 1996, after the killing in Chile of Carmelo Soria, a United Nations official, and other Spanish nationals. The arrest was unprecedented: the first time ever that a former head of state of one country was detained in another on charges of international crimes. “I know the fucker who’s behind this,” Pinochet said to the interpreter who informed him of his rights, referring to Juan Garcés, a lawyer in Madrid, who had indeed initiated the process.
Pinochet’s legal team argued that the former president had absolute immunity before the English courts. They maintained that the acts alleged came under the rubric of official conduct, and so Pinochet could not be detained or extradited. The court proceedings—in which I was involved as counsel for Human Rights Watch, an intervener in the case—were convoluted. A panel of three judges ruled that Pinochet had absolute immunity under English law because he was a former head of state and all the acts in question were official conduct. Sir Thomas Bingham, the lord chief justice, maintained that there was no exception for international crimes. The Nuremberg precedent was irrelevant, he explained, because that was an international court, not a national one. Bingham and his colleagues had been unable to find a single case anywhere in the world in which a national court ruled that a former head of state had no immunity for international crimes.
The Crown appealed the decision to the House of Lords, at the time the highest court in Britain. Eventually, in March 1999, seven judges of the House of Lords ruled 6–1 that Pinochet had lost his immunity once the 1984 UN Convention Against Torture had come into effect in Britain, Chile, and Spain. Because the treaty obliged parties to prosecute or extradite torturers, the necessary implication was that they had a right to do so. Lord Hope of Craighead, one of the judges in the majority, concluded that any preexisting right to immunity under international law could not “survive” a charge of torture on “such a scale as to amount to an international crime.”
The ruling had immense significance because it set a precedent that could in time be followed by national courts in other countries. Henceforth, any former head of state who engaged in torture was on notice that, once out of office, he was at risk of arrest anywhere in the world. Pinochet was allowed to leave Britain, ostensibly on grounds of ill health (although this was always challenged), and after returning to Chile was eventually stripped of all relevant immunities by the country’s supreme court. He was indicted on multiple charges, and at the time of his death, in 2006, was under house arrest.
The Pinochet precedent, although not without its critics, has since taken hold. Recently, a French court ruled that Syria’s ex-president Bashar al-Assad could be indicted in France for his official role in authorizing torture. Although the French court in its decision threw out existing charges against Assad—which is what got the headlines—it did so only because those indictments had come down when Assad was still in office. Now that he was no longer serving, the court decided, new indictments could be drawn up.
By extension, and in theory, the Pinochet precedent should also have force in the United States: A former head of state who has engaged in torture or certain other international crimes will be subject to arrest and cannot invoke immunity if he or she sets foot in the U.S. The same principle would apply equally to U.S. presidents who might engage in a policy of torture or other international crimes: They might face a risk of questioning or even arrest abroad. (In 2011, former President George W. Bush canceled a visit to Switzerland after Amnesty International filed a legal complaint there concerning the Bush administration’s use of waterboarding, widely recognized to be a form of torture.) The fact that it was official conduct does not give them immunity when they leave office.
This was the context in which I followed the case that former (as he was at the time) President Trump brought to the U.S. Supreme Court in 2024. The federal grand jury that indicted him on various counts of conspiring to overturn the 2020 presidential election result was not, of course, focused on international crimes. But I watched the case closely because the issue of immunity was at its core. Immunity is an issue so basic that it has a way of affecting anything it gets near: spreading sideways, rippling backward. In particular, I wondered whether the Court would follow the line taken by Robert Jackson eight decades earlier. Or would it instead give a former U.S. president some sort of immunity that could extend to international crimes, either explicitly or by necessary inference (which can play a significant role in legal developments).
The lower courts rejected Trump’s arguments: As they saw it, he had no criminal immunity as a former president for any acts, whether private or official. Though unstated, the lower-court rulings left clear by extension that a former president who tortures or commits genocide or disappears people in a manner that constitutes an international crime has no immunity.
Trump appealed to the Supreme Court, which in Trump v. United States overturned the lower courts. It did so with gusto but also with limited explicit reasoning, and apparently without much thought as to some of the broader implications, including the international ones. Six of the nine justices ruled that, despite the U.S. Constitution’s silence on the matter, a former president has “absolute immunity” for “core constitutional powers” as well as a presumption of immunity for all other official acts, including those where his powers have been subjected to limitations by Congress. The majority’s judgment did not speak to the issue of crimes under international law—including torture, disappearances, and genocide—which the United States has historically joined other countries in condemning.
The Supreme Court had never previously addressed a former president’s immunity from a criminal suit. (Back in the Nixon era, it had ruled on a former president’s immunity from a civil suit.) There was no direct precedent on which to rely. As with the Pinochet case, all nine justices agreed that there was no immunity for private acts. “Like everyone else, the President is subject to prosecution in his unofficial capacity,” Chief Justice John Roberts wrote. But for all official conduct, the president was, unlike everyone else, protected by a general principle of immunity. This was because—in the view of the majority—the case had “profound consequences for the separation of powers”; Article II of the Constitution was to be interpreted to protect the president’s executive powers from the risk that criminal law would be used in an unbridled manner to constrain those powers. The “nature of Presidential power” required “some immunity from criminal prosecution for official acts during his tenure in office,” Roberts wrote, without any real explanation as to why that should be.
What this means in practice is that where the president exercises “core constitutional powers” under Article II—powers that might involve military action, foreign affairs, and national security more generally, among other matters—he will have absolute immunity, as well as an immunity that extends to matters of evidence. In the view of the majority, without such immunity a president might be deterred by fear of criminal prosecution from taking the “bold and unhesitating action” that the “public interest” requires. Even if, in exercise of these powers, he commits genocide or torture, the majority seemed to be saying, as a former president he will be immune from the jurisdiction of U.S. criminal courts. That is a far-reaching conclusion, at odds with the approach taken by the House of Lords in Pinochet.
The majority adopted a slightly different stance in relation to official conduct that lies outside “core constitutional powers,” where responsibility is shared with Congress. Congress has shared powers to criminalize certain conduct by the president, and it has legislated in relation to torture and genocide. But even in such cases, a former president enjoys “at least a presumptive immunity from criminal prosecution” in order to enable him to act “without undue caution.” Immunity would be lost only if the application of “a criminal prohibition” to the president’s conduct posed no danger of “intrusion on the authority and functions of the Executive Branch.” The application of this limitation was not explained. From the decision it is not knowable, and its interpretation will have to be litigated, probably on a case-by-case basis.
It could well be that, if a president were ever to be charged with international crimes, the Court would find that the conduct fell outside core constitutional powers and that the president thus enjoyed merely a presumptive immunity. But even so, as the three dissenting justices pointed out, it would be “hard to imagine” a prosecution for official acts that posed “no dangers of intrusion on Presidential authority”—making it impossible, therefore, to reach the threshold where immunity would be lost. Chief Justice Roberts brushed away that concern. The limitation was needed to avoid prosecutions of ex-presidents from becoming “routine.” He offered no evidence of past practice to support that proposition.
The bar for prosecution becomes even higher because of another aspect of the judgment: The majority ruled that a prosecutor cannot use documents, conversations, or other kinds of evidence related to acts concerning core constitutional powers to prove crimes that are not covered by an absolute immunity. (Justice Amy Coney Barrett dissented on this aspect but joined the majority on all others.) Prosecution of a former president would thus likely encounter a series of dead ends.
The Supreme Court remanded the particular facts of the case back to the district court, to determine which of former President Trump’s acts subject to the grand-jury indictment were to be treated as unofficial conduct, and where a claim to a presumptive immunity would not be sustained. Years of litigation and uncertainty would have followed, save that Trump was reelected to the presidency.
Jack Goldsmith, who headed the U.S. Department of Justice’s Office of Legal Counsel during the Bush administration, has concluded that the immunity ruling was a “mess,” one that has a “made-up feel” and creates an “entirely new law” that is replete with “ambiguities.” He is not alone in this critique. I spoke recently with Lord Hope, now retired as a U.K. supreme-court judge. Among other things, he found the idea that a U.S. president needed immunity to be able to take decisions to be “absolutely ridiculous.” He acknowledged that the Court had not explicitly addressed the issue of immunity for international crimes, but also noted that uncertainty in this regard was damaging in itself: The ruling left in him a lingering doubt and a worry that, if pressed, “the majority would say that its judgment applied to everything.”
The consequences of the Supreme Court’s decision outside the U.S., and for international law, are not hard to imagine. For one thing, even without mentioning international law, the decision moves American domestic law on immunity in the direction of that taken by more-authoritarian states. This is not speculative; it’s simply a fact. The majority judgment leaves, at best, a serious question mark when it comes to taking action against international crimes. It will make prosecutors hesitate to bring charges—putting in place obstacles to success—and serves to encourage copycat rulings in other countries. The judgment may also short-circuit future American attempts to hold other former leaders to account for international crimes. What Lord Hope called the “foggy” nature of the ruling makes it more difficult, if not impossible, for the United States to argue against immunity for former leaders charged with international crimes and facing proceedings before national or international courts. If a former U.S. president might have immunity for everything—as the current president would undoubtedly argue—then why shouldn’t Milošević or al-Bashir or Assad or Duterte? A former head of state of another country who turns up in the U.S. and is charged with an international crime would be able to assert that he should have no less immunity than that accorded to a former U.S. president for such a crime. The highest courts in other lands—in countries such as Germany and Argentina that until now have not allowed far-reaching immunities for a former head of state—could be encouraged to follow suit. If the highest American court is receptive to immunity for a former president with respect to international crimes—as this judgment suggests, and as Russian law already mandates—then why can’t the courts of other countries be?
The uncertainties generated by this ruling undermine the values that have been advanced by the United States since 1945, including by conservative administrations. It was, after all, Ronald Reagan who signed the torture convention and whose administration moved to ratify the genocide convention.
The approach and tone adopted by Roberts in the 2024 Supreme Court decision are regrettable. They invite us to imagine the very different kind of letter—think of it as a thought experiment—that might have been sent to President Truman if it had been John Roberts rather than Robert Jackson, who was invited to draft the charter of the Nuremberg tribunal back in 1945:
We have decided to maintain the idea of immunity for former leaders, to ensure that they are not enfeebled or made overly cautious by the fear of criminal prosecution after they leave office. We have concluded that immunity is not an obsolete doctrine or a relic of the doctrine of the divine right of kings. It is a vital, necessary, and living thing. It is fully consistent with the position we take toward our own former presidents. We accept the paradox that legal responsibility should be the least where power is the greatest, including in relation to crimes under international law. Where official conduct is concerned, we accept that a president is under God, but not that he is under the law
*Illustration Sources: Alexis Duclos / Gamma-Rapho / Getty; UPI / Bettmann Archive / Getty; Contributor / Getty; Patrick Hertzog / AFP / Getty.
The post How Far Does Trump’s Immunity Go? appeared first on The Atlantic.
