No Longer Immune? How Network Theory Decodes Normative Shifts in Personal Immunity for Heads of State
The customary international law (CIL) norm of personal immunity for Heads of State has come under significant fire in the past decade. While immunity norms have traditionally been absolute, the increasing influence of the human rights and anti-impunity movements, coupled with pleas for international criminal responsibility for egregious human rights and humanitarian violations, have eroded them, particulary within international jurisdictions. These changes reflect a larger challenge to the traditional statecentric model. Although states remain the primary makers of international law, many other participants, including international organizations, courts, and non-governmental oganizations (NGOs), are crucial to the development of international legal norms today. But there is, of yet, no formal model integrating these actors into existing legal frameworks. The goal of this Article is to provide an analyticalf ramework to appy to the shifting norm of personal immunity for Heads of State based on the relationships and connections among actors. Using the tools of network theory, this Article determines the defining properties of this network of actors, including its topology, density, centraliy, and actor similarity, which explain current normative shifts and predict developments. Based on this quantitative analysis, this Article puts forward two arguments. First, non-state actors, even though not formaly accepted as capable of contributing to international law, have a clear normative effect. Second, insofar as the hubs in this network continue to pursue an exception to Head of State immunity before International Criminal Courts, we are likey to see an exception cystalliZe as a new rule of CIL. Vie)ing international law through networks of actors provides lawyers andpoly-makers with a descriptive tool that translates and maps the elusive global realities that lead to international law-making.
Virginia Journal of International Law
Nadia Banteka, No Longer Immune? How Network Theory Decodes Normative Shifts in Personal Immunity for Heads of State, 59 Virginial Journal of International Law 391 (2019).