Immunities of State Officials, International Crimes, and Foreign Domestic Courts

Abstract

This article examines the extent to which state officials are subject to prosecution in foreign domestic courts for international crimes. We consider the different types of immunity that international law accords to state officials, the reasons for the conferment of this immunity and whether they apply in cases in which it is alleged that the official has committed an international crime. We argue that personal immunity (immunity ratione personae) continues to apply even where prosecution is sought for international crimes. Also we consider that instead of a single category of personal immunity there are in fact two types of such immunity and that one type extends beyond senior officials such as the Head of State and Head of Government. Most of the article deals with functional immunity (immunity ratione materiae). We take the view that this type of immunity does not apply in the case of domestic prosecution of foreign officials for most international crimes. However, we reject the traditional arguments which have been put forward by scholars and courts in support of this view. Instead we consider the key to understanding when functional immunity is available lies in examining how jurisdiction is conferred on domestic courts.

The contentious relationship between Africa and the International Criminal Court (ICC)

“…This argument is premised on the principle of sovereign equality of states, which is the foundation for immunity of states from being subjected to the jurisdiction of another (par in parem non habet imperium) (Nicaragua v. United States, 1986). Akande and Shah (2010) argue that a move to arrest a sitting head of state invariably leads to a change in the governance of the country concerned. Arresting a sitting president may constitute extreme meddling in the sovereignty and independence of another state.…”

“…Akande and Shah (2010) rightfully point out that the principle of immunity from prosecution is a heritage of old practice in which majestic dignity was accorded to members of royal families especially kings and princes. International law has retained the principle of immunity from prosecution in relation to modern day heads of state (presidents) and representatives of states (foreign representatives) (Elshtain, 1990).…”

“…The international law doctrine of immunity from prosecution effectively exempts certain individuals from prosecution for crimes committed while they are serving as heads of state or foreign state representatives (Akande and Shah, 2010). There are two types of immunity from prosecution these being functional immunity and personal immunity.…”

“…There are two types of immunity from prosecution these being functional immunity and personal immunity. Functional immunity also known as immunity ratione materiae is an exemption from prosecution that is accorded to individuals who carry out certain functions of state (Akande and Shah, 2010). The basis for functional immunity is rooted in both treaty law and customary international law and these protections usually apply to foreign officials or diplomats representing a sending country (Mazzeschi, 2015).…”

“…This principle operates within the framework of equality of states at international law which prevents a sovereign state being subjected to the jurisdiction of another (Kelsen, 1944). Akande rightfully concludes that if a state is to arrest another sitting head of state, such action would amount to an illegitimate/ unconstitutional regime change (Akande and Shah, 2010). An example of the operation of this principle was the case in which an English court declined to issue a warrant of arrest against Robert Mugabe on grounds that he was a sitting head of state who enjoyed the protections of ratione personae (Branigan, 2004).…”