Immunity from prosecution is a doctrine of international law that allows an
accused to avoid prosecution for criminal offences. Immunities are of two
types. The first is functional immunity, or immunity ratione materiae. This is an
immunity granted to people who perform certain functions of state. The second
is personal immunity, or immunity ratione personae. This is an immunity
granted to certain officials because of the office they hold, rather than in
relation to the act they have committed. Functional immunity
Functional immunity arises from customary international law and treaty
law and confers immunities on those performing acts of state. Any person who
in performing an act of state commits a criminal offence is immune from
prosecution. This is so even after the person ceases to perform acts of state.
Thus it is a type of immunity limited in the acts to which it attaches but will
only end if the state itself ceases to exist. This type of immunity is based on
respect for sovereign equality and state dignity.
The offices usually recognised as attracting this immunity are Head of
State or Head of Government, senior cabinet members, Foreign Minister, and
Defence Minister. Such officers are immune from prosecution for everything
they do during their time in office. For example, an English court held that a
warrant could not be issued for the arrest of Robert Mugabe on charges of
international crimes on the basis that he was a presently serving Head of State
at the time the proceedings were brought. Other examples are the attempts
to prosecute Fidel Castro in Spain and Jiang Zemin in the USA.
However, the moment accused leaves office, they are liable to be prosecuted
for crimes committed before or after their term in office, or for crimes
committed whilst in office in a personal capacity. Pinochet was only able to come
to trial because Chile and the UK had both signed and ratified the UN
Convention Against Torture through which such immunities were waived.
It may be the case that functional immunity is itself being eroded. In 2004
the Appeals Chamber of the Special Court for Sierra Leone held that indicted
Liberian president Charles Taylor could not invoke his Head of State immunity to
resist the charges against him, even though he was an incumbent Head of State
at the time of his indictment. However, this reasoning was based on the
construction of the court's constituent statute, that dealt with the matter of
indicting state officials. In any case, Taylor had ceased to be an incumbent
Head of State by the time of the court's decision so the arresting authorities
would have been free to issue a fresh warrant had the initial warrant been
overturned. Nevertheless, this decision may signal a changing direction in
international law on this issue. Recent developments in international law
suggest that this type of immunity, whilst it may be available as a defence
to prosecution for local or domestic crimes or civil liability, is not a
defence to an international crime.. This has developed in the jurisprudence of
the International Criminal Tribunal for the Former Yugoslavia, particularly in
the Karadzic, Milosevic, and Furundzija cases. This was also the agreed position
as between the parties in their pleadings in the International Court of
Justice Case Concerning the Arrest Warrant of 11 April 2000. The reasons
commonly given for why this immunity is not available as a defence to
international crimes is straight forward: that is genocide, war crimes
and crimes against humanity are not acts of state. Criminal acts of the type in
question are committed by human actors, not states; and we cannot allow the jus
cogens nature of international crimes, i.e. the fact that they are
non-derogable norms, to be eroded by immunities.
However, the final judgment of the ICJ regarding immunity may have thrown the
existence of such a rule limiting functional immunities into doubt. See in
this respect the criticism of the ICJ's approach by Wouters, Cassese and Wirth
among others, though some such as Bassiouni claim that the ICJ affirmed
the existence of the rule. Regarding claims based on the idea that
a senior state official committing International crimes can never be said
to be acting officially, as Wouters notes “This argument, however, is not
waterproof since it ignores the sad reality that in most cases those crimes
are precisely committed by or with the support of high-ranking officials as
part of a state’s policy, and thus can fall within the scope of official acts.”
Academic opinion on the matter is divided and indeed only the future
development of International Customary law, possibly accelerated by states
exercising universal jurisdiction over retired senior state officials, will be
able to confirm whether state sovereignty has now yielded partially to
internationally held human rights values.
In November 2007, French prosecutors refused to press charges against former
US Secretary of Defense Donald Rumsfeld for torture and other alleged crimes
committed during the course of the US invasion of Iraq, on the grounds that
heads of state enjoyed official immunity under customary international law, and
they further claimed that the immunity exists after the official has left
office. Personal immunity
See also Diplomatic immunity This type of immunity arises from
customary international law and confers immunity on people holding a particular
office from the civil, criminal, and administrative jurisdiction. This
immunity is extended to diplomatic agents and their families while posted
abroad. Under personal immunity, private residence, papers, correspondence, and
property of an official enjoying personal immunities are inviolable.
According to Cassese, personal immunities are extended to cover
personal activities of an official, including immunity from arrest and
detention, immunity from criminal jurisdiction, immunity from the civil
and administrative jurisdiction of the host state. No immunities hold for
private immoveable property unless held on behalf of the sending state for the
purposes of the mission, issues of succession, professional or commercial
activity exercised outside of official functions, or where the official has
voluntarily submitted to the proceedings. Example in the case of
Miles Agha, Mazen Agha who is currently residing in Dallas TX. Personal
immunities cease with the cessation of the post.
This type of immunity is not for the official’s personal benefit but is based
on the need for states to function effectively and hence not be deprived of
their most important officials. Cases of overlap
When a person, who enjoys a personal immunity and has committed a criminal
act covered also by functional immunity, leaves office, the personal immunity is
removed as usual. This is what happened in the Pinochet case before the House of
Lords. Senator Pinochet was only able to be extradited to face charges that were
not caught by the functional immunity. See also
Amnesty law Command responsibility
Diplomatic immunity Extradition
International law Jurisdiction
State immunity References
"French prosecutors throw out Rumsfeld torture case". Reuters.com. November 23,
2007. Cases:
In Re Pinochet 93 AJIL 690 R v Bow Street Magistrates, ex parte
Pinochet, [2000] 1 AC 147 Arrest Warrant of 11 April 2000 Case,
ICJ Rep, 2002 Commentary:
Akande, “International Law Immunities and the International Criminal Court”,
98 AJIL 407 Cassese, International Criminal Law,
Chapter 14 Cassese, “When May Senior State
Officials be Tried for International Crimes? Some Comments on the Congo v.
Belgium Case”, 13 EJIL 853 Fox, The Law of State Immunity,, Chapter
12 Warbrick, “Immunity and International
Crimes in English Law”, 53 ICLQ 769