Between Populism and Law: Why Mayors Cannot Arrest World Leaders

From time to time, a tempting fantasy for local politicians in the West flashes into the global media: the declaration that the moment the Prime Minister of Israel lands in their city, they will order the local police to arrest him and bring him to justice. Whether the source of these statements is in European capitals or the Mayor of New York, this populist gimmick always manages to generate headlines and inflame passions.

However, a deep abyss separates populist headlines from legal and political reality.

In order to understand why such an idea is not reasonable — and no less, dangerous to implement — it is important to understand the international legal framework that underlies a state's ability to extradite a person or bring them to international criminal justice, and regarding the bombastic statements of the Mayor of New York, it is also important to understand the limitations of American constitutional law.

Immunity is not a privilege — it is a condition for world order

Customary international law establishes a solid fundamental principle that has stood for hundreds of years: absolute immunity is granted to heads of state. This immunity is not a personal privilege granted to a specific person, and it does not constitute an expression of support for his policy or actions. Rather, it constitutes the beating heart of international diplomatic relations.

For in order to promote stability in international relations and foster friendly relations between countries, it is important to ensure that heads of state can travel from place to place and take part in diplomatic activity. In addition, there is a real fear that in the absence of immunity, the criminal prosecution of heads of state will be used for local political needs, just as we saw recently in the announcement of the Mayor of New York.

Admittedly, there are exceptional cases where a head of state can be prosecuted — such as when a head of state has retired from his position, or a state over which the International Criminal Court has jurisdiction. And yet, even in these exceptional cases, there are legal limitations such as the principle of complementarity and the obligation to negotiate before prosecution.

The logic underlying the institution of immunity is intended to ensure that state leaders can move freely in the global space to conduct negotiations, reach peace agreements, and represent their countries. Without this immunity, the world would become a legal Wild West: a local prosecutor in Texas could arrest the President of China, a mayor in France would detain the Prime Minister of the UK, and the ability to conduct global diplomacy would be completely paralyzed.

The federal brake: the institution of the presidency and American law

At the structural level of the American government, the city of New York — despite being the capital of the global economy and culture — is ultimately a local authority. The American Constitution determines unequivocally that the authority to manage foreign relations and foreign policy is entrusted to the federal branch alone, headed by the President of the USA. Accordingly, the Mayor of New York does not manage the foreign policy of the USA, and the New York Police Department (NYPD) has no legal or constitutional authority to enforce international criminal proceedings against the position of the central government.

If such a hypothetical scenario were ever to approach reality, the federal system in the USA is equipped with immediate legal and operational tools to stop it:

Official immunity notice: The State Department and the federal Department of Justice submit to the court an official notice confirming the immunity of the incumbent leader. The US Supreme Court has ruled again and again that this determination by the executive branch is absolutely binding on every court in the country.
The principle of federal supremacy: A federal injunction immediately suppresses and cancels any attempt by a local court or police to exceed its authority and intervene in the field of foreign relations.
The federal security circle: Heads of state and government visiting the USA are not secured by local police, but by the federal Secret Service, which is directly subordinate to the administration in Washington.

It is important to remember that the USA is not a member of the 'Rome Statute' and does not recognize the authority of the International Criminal Court (ICC) over its citizens or the citizens of its allies. In fact, US federal law (ASPA) explicitly prohibits local and federal authorities from cooperating with ICC warrants without explicit presidential approval.

Populism versus legal reality

As can be understood, statements by heads of local authorities regarding the arrest of foreign leaders are nothing but political theater aimed at a local voter base. Such statements exploit the lack of understanding among many in the public regarding the mechanisms of international law and American constitutional law.

A proper world order requires clear rules of the game, as the existing status quo regarding immunity is critical for the stability of international relations. International law and the American Constitution are intended to ensure that diplomacy, and the pillars of the international system, do not become enslaved to cheap local populism.

Prof. Mohammed Wattad, Full Professor (Law), President of the Zefat Academic College

Dr. Tal Mimran, faculty member at the Zefat Academic College and senior research fellow at the Tachlit Institute