If state waives immunity to its heads, no protection in Swiss law

ISLAMABAD: The Swiss law clearly states that if any state expressly waives the immunity of its head of state, then he cannot invoke immunity in Switzerland, according to the Swiss Federal Department of Foreign Affairs, which has a special page titled “Immunity of holders of political office and of states.”

The details of this specific law are available on the web page of the Swiss Foreign Affairs Department under the link http://www.eda.admin.ch/eda/en/home/topics/intorg/chres/imdig.html

The web page says in accordance with the Federal Supreme Court, under certain conditions a foreign (head of) state can be summoned before a Swiss court. A distinction must be drawn between:

* whether the foreign state acted in the exercise of sovereign authority (sovereign act or act of state, “acta iure imperii”) or

* whether it acted as a subject of private law equal to a private person (legal transactions, “acta iure gestionis”).

This Swiss law will clarify a lot of confusion currently prevailing in Pakistan whether President Asif Ali Zardari enjoys immunity in Switzerland if the Supreme Court denies him the immunity and a letter is written to the Swiss authorities to reopen his money laundering cases.

Following is the full text of the Swiss law, as available on the web page of the Department of Foreign Affairs:

“To enable them to exercise their office unhindered, heads of state enjoy full immunity against legal proceedings abroad. Heads of government and foreign ministers can also claim immunity when travelling abroad. In certain circumstances, this also applies to other members of government in the exercise of their duties.

Besides the personal immunity of officeholders, states and their property also enjoy immunity. Immunity of holders of political office

While abroad, serving heads of state enjoy absolute immunity against criminal proceedings in all actions that otherwise would have been subject to the jurisdiction of these states. The immunity of heads of state is a principle embodied in customary international law.

According to the Federal Supreme Court, immunity is weakened in the following two cases:

* When a state expressly waives the immunity of its head of state, the head of state cannot invoke immunity.

* When a head of state leaves office, immunity no longer holds. A former head of state can claim immunity at most for actions undertaken in the exercise of official functions. If such a connection does not exist, the former head of state can be legally prosecuted.

* Decision of the Federal Supreme Court in the Marcos case (115 Ib 496, p. 500) (fr)

Heads of state have no immunity in the case of war crimes. The statutes of the International Court of Justice and the International Criminal Tribunals for the former Yugoslavia and for Rwanda make provision for the fact that a defendant’s official position for qualified war crimes, e.g. as head of state, does not relieve such person of criminal responsibility.

The case of Augusto Pinochet, the former Chilean dictator, revived the debate over the criminal responsibility of former heads of state for qualified crimes committed while in office. General Pinochet was held not to be immune from arrest for alleged acts of torture.

In contrast to criminal proceedings, there is less agreement on the immunity of heads of state with respect to offences under civil law. One body of legal doctrine holds that both the official actions and the private actions of heads of state enjoy immunity from civil law proceedings. Another body takes the view that immunity extends only to official, and not private, actions.

Immunity of states and their property

In Europe, the European Convention on State Immunity of 16 May 1972 regulates protection of the property of foreign states. Non-member states of the Council of Europe may also accede to this convention. Very few states have ratified the convention. In Switzerland, the convention entered into force on 7 October 1982.

On 2 December 2004, the General Assembly of the United Nations (UNO) adopted a universal convention on the jurisdictional immunities of states and their property. Switzerland will sign this convention.

Switzerland does not have a law that regulates the application of the immunity of states under international law. In accordance with the Federal Supreme Court, under certain conditions a foreign state can be summoned before a Swiss court. A distinction must be drawn between

* whether the foreign state acted in the exercise of sovereign authority (sovereign act or act of state, “acta iure imperii”) or

* whether it acted as a subject of private law equal to a private person (legal transactions, “acta iure gestionis”).

Only in the first case can the state claim jurisdictional immunity. In the second case, by contrast, the state can be summoned before a Swiss court, but only on condition that there is a connection between the civil legal relationship and Swiss territory.

According to the Federal Supreme Court, Switzerland can also impose sanctions on the foreign state. What holds for jurisdictional immunity also holds in principle for immunity from measures of constraint: Measures of constraint may not be taken against assets and property intended for the performance of public functions.

A state can expressly waive its immunity from jurisdiction and constraint. Such a waiver can take place in various ways, either before a dispute materialises or ad hoc in a lawsuit. Since 1918, the Federal Supreme Court has followed a restrictive line on the immunity of states.

Romney On Glide Path As Campaign Heads South

Enlarge Charles Dharapak/AP

Mitt Romney reaches for his wife Ann as his sons, Josh, Ben, Craig, Tagg and Matt (left to right) look on during the Romney for President New Hampshire primary night rally at Southern New Hampshire University in Manchester, N.H., on Tuesday, Jan. 10.

Charles Dharapak/AP Mitt Romney reaches for his wife Ann as his sons, Josh, Ben, Craig, Tagg and Matt (left to right) look on during the Romney for President New Hampshire primary night rally at Southern New Hampshire University in Manchester, N.H., on Tuesday, Jan. 10.

In politics, success breeds success. That's why Mitt Romney is looking strong as attention turns to the next Republican primary in South Carolina.

Any expectations that Romney's fortunes might fade were overturned Tuesday in New Hampshire. The former Massachusetts governor won a solid plurality with some 39 percent of the vote – more than 15 percentage points ahead of his nearest rival, Texas Rep. Ron Paul.

Perhaps as importantly, the order of the finish in New Hampshire left no other candidate clearly positioned to stand as Romney's chief competitor in South Carolina on Jan. 21.

Former Utah Gov. Jon Huntsman, who had based his candidacy on a strong performance in New Hampshire, finished third. And the disappointing showings for Newt Gingrich and Rick Santorum – they essentially tied for fourth – means that the former House speaker and the former Pennsylvania senator will each continue to struggle to establish himself as the leading conservative alternative to Romney.

"Romney will get a big boost going into South Carolina and the only way to stop him would be for the right to unite behind one of two candidates who did very poorly in New Hampshire," says Charlie Arlinghaus, who directs a free-market think tank in Concord, N.H.

"If Romney wins the first three contests, it's over," he says, and Romney won a closely contested Iowa caucuses — by eight votes over Santorum — before romping in New Hampshire. "Nobody else will have the resources to compete."

Don't Start Counting Chickens

With only two states having voted, it would be premature to say the nomination is assuredly Romney's. The electorate in South Carolina looks different from the more moderate and independent-minded voters of New Hampshire.

"Because New Hampshire is such a political anomaly and unrepresentative of the GOP base, it is not only possible but is likely that conservatives will continue to form a consensus and unite to present a viable challenge to the establishment candidate," says John Stemberger, chairman of the Florida Family Action PAC, a social-conservative group.

How South Carolina votes will indicate Republican preferences throughout the South in general, says Gary Bauer, a prominent social conservative and former presidential candidate.

"Clearly, Romney's victory in New Hampshire was impressive and he's building momentum, but I think South Carolina really is the key state," says Bauer, who endorsed Santorum there on Sunday.

"It is still more than possible that South Carolina ends up being a race between Romney and Santorum," Bauer says. "If Santorum can pull it off, the field narrows a little and they go into Florida and I think anything can happen."

Who's The Alternative?

But the other candidates considered most conservative in the race – Gingrich and Texas Gov. Rick Perry – are hardly conceding the "anti-Romney" vote to Santorum. Santorum was unable to build in New Hampshire on his strong showing in the Jan. 3 Iowa caucuses.

"Nobody expected Santorum to barnstorm New Hampshire, but he really needed to capitalize on his Iowa 'tie-victory' to set himself up as the true 'anybody but Romney' candidate," says Scott Huffmon, a pollster associated with Winthrop University in Rock Hill, S.C.

For his part, Gingrich is likely to continue the sort of attacks he launched against Romney in the closing days of the New Hampshire race. After vowing to run a positive campaign, Gingrich is poised to further unleash negative ads and videos.

"South Carolina is known for its rough and tumble politics," says Curtis Loftis, the state treasurer in South Carolina and Romney's campaign director there. "The ads are flying here and none of them are polite."

Establishment Leanings

That's one reason Loftis isn't ready to declare victory for his candidate yet. But he says he's pleased with Romney's position nonetheless.

With reason. Recent polls have suggested that Romney was already opening up a lead in South Carolina even before his big win on Tuesday.

Although there's been a lot of speculation about whether social conservatives will block Romney's path to victory, they haven't been able to unite behind a single alternative.

"Unless the social conservatives want to go out with a whimper, they better pull forces together now in South Carolina," says Bruce Ransom, a political scientist at Clemson University. "It's not clear at this point that will be possible."

Although the state's GOP electorate is sometimes portrayed as "far right wing," it's actually a more complicated mix of fiscal conservatives, retired military and libertarians, says Jim Guth, a political scientist at Furman University in Greenville, S.C.

"It's basically gone for not the more centrist candidate but the more establishment candidate," Guth says. "It looks for a winner as well."

'Slim, But Possible'

Given Romney's many advantages – in terms of fundraising, organizational strength and now momentum – it's difficult to see how anyone else can find a clear path to victory in South Carolina or beyond, says Huffmon, the pollster at Winthrop.

It's possible, he says, that Perry could have a "southern reinvention" and regain the kind of support he enjoyed as the field's front-runner for a brief period last summer. But that may prove unlikely.

"There will still be a number of factions holding out hope that their guy can win, when I don't see how you can stop this thing," says Chip Felkel, a veteran GOP strategist in South Carolina who is not affiliated with any of the current hopefuls.

Huntsman is not expected to be a strong candidate in South Carolina, observers there say. And there may be a ceiling on Paul's support there as well.

"Paul has his avid supporters but will have about the same percentage here he's had elsewhere," says Guth, the Furman professor.

Given the size of Romney's New Hampshire victory, Felkel says, it's going to be harder for other candidates to convince their supporters that they still have a chance – and are worthy of more financial support.

"Is there a possibility that somebody can beat Romney?" Huffmon says. "Slim, but possible."

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Romney's New Hampshire win will make it tough for his GOP opponents in South Carolina and elsewhere.

After wins in New Hampshire and Iowa, stopping Romney's march to the nomination has become harder.

Paul told a crowd of supporters that he was nibbling at the heels of front-runner Mitt Romney.

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As New Hampshire Heads To Polls, All Eyes Are On Mitt Romney

Enlarge Emmanuel Dunand/AFP/Getty Images

Republican presidential hopeful Mitt Romney addresses a rally at McKelvie Intermediate School in Bedford, New Hampshire on Monday.

Emmanuel Dunand/AFP/Getty Images Republican presidential hopeful Mitt Romney addresses a rally at McKelvie Intermediate School in Bedford, New Hampshire on Monday.

Some in New Hampshire have already cast their votes this morning. As they do traditionally, voters in Dixville Notch and Hart's Location, both small northern New Hampshire towns, cast their ballots shortly after midnight.

The Washington Post reports on the results:

"Romney tied with former Utah governor Jon Huntsman (R) in Dixville Notch, with each candidate winning a total of two votes out of nine cast. Former House speaker Newt Gingrich (R-Ga.) took one vote, as did Rep. Ron Paul (R-Texas). The remaining three voters cast their ballots for President Obama.

"In Hart's Location, Romney took five votes, compared to four votes for Paul. Huntsman took two votes, Texas Gov. Rick Perry (R) took one and Gingrich took one."

As if we had to remind you, today is the second contest of this primary season and if you look at polls, the state is Mitt Romney's to lose. The former Massachusetts governor has had a sizable lead over his opponents. A University of New Hampshire poll released, yesterday, had Romney taking 41 percent of the vote. Ron Paul followed a distant second with 17 percent.

As CBS News puts it, if Romney manages a win, he becomes the first non-incumbent Republican to win both Iowa and New Hampshire "since the modern presidential nomination process was established in the 1970's."

We'll leave you with some early headlines:

— Time's Swampland says while Romney's New Hampshire win is looking close to certain, "an unexpected nail-biter could dampen the case for his inevitability."

— After, Newt Gingrich began criticizing Romney's business record, Slate asks if his biggest asset is also the "bain of his existence."

— NPR's Scott Horsley looked at Romney's record at Bain Capital on Morning Edition.

— And The Wall Street Journal has a bit more on what it calls Romney's ill-timed "You can fire them" comment from yesterday.

— The margine of victory matters, reports the Boston Herald: "... The margin could determine whether it's a John Kerry victory — one that makes him virtually unstoppable heading South — or a Paul Tsongas victory, where the second-place finisher (in Tsongas' case, Bill Clinton) gets the real momentum."

— Politico looks beyond News Hampshire and predicts a long primary fight.

— CNN reports some polls in the state close as late as 8 p.m. ET.

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