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IMMUNITY OF STATE OFFICIALS FROM FOREIGN CRIMINAL JURISDICTION
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IMMUNITY OF STATE OFFICIALS FROM FOREIGN CRIMINAL JURISDICTION
AUTHORED BY - A R ANJALI
On 11 April
2000, a Belgian Magistrate issued an international arrest warrant against Mr.
Yerodia who was the Foreign Minister of Congo. The Court issued the
warrant based on universal jurisdiction alleging that he committed grave
breaches of the Geneva Conventions of 1949 and its Additional Protocols and
crimes against humanity. In its judgement,[1] the Court held
that Belgium failed to respect, and infringed, Yerodia’s immunity and
the inviolability enjoyed by him under international law. It is an
established principle of international law that Heads of States and
Governments, Foreign Ministers and Diplomatic and Consular agents enjoys
immunities from civil and criminal jurisdictions of other States. These
immunities “…are not given for their personal benefit; but to ensure the
effective performance of their functions of behalf of their…States”.
International law recognizes him as a representative of the State solely by
virtue of his office. It was after this case that the ICJ accepted that the
immunity of state officials originates from customary international law.’
Article 31 of the
Vienna Convention on Diplomatic Relations provides for immunity for diplomatic
agents from criminal jurisdiction of a state.[2]
Where officials represent their states at international organizations, they will
usually be accorded immunity by treaty.[3] Likewise
under Articles 29 and 31 of the UN Convention on Special Missions 1969 the
person of any official abroad on a special mission on behalf of his or her
state is inviolable. Immunity Rationae personae is granted to a certain
number of officials under international law while in office. This was the core
of the previously mentioned judgment[4]
although there is still some debate around this subject. The immunity ratione personae
of a Head of State was recognized by both parties in the Djibouti v. France
case before the ICJ[5]. Immunity
rationae materiae spans only official acts which is the actions taken by
state official in discharge of his or her functions. It does not apply in
criminal prosecutions for international crimes. International law confers
extra-territorial jurisdiction and reject arguments derived from jus cogens or the allegedly non-sovereign and
non-official character of acts amounting to international crimes.
The justification for such immunities
is that they ensure the proper ongoing of international relations and as a
result, they are given to officials who represent the state at the
international level. As the International Court of Justice (ICJ) has pointed
out, “there is no more fundamental prerequisite for the conduct of relations
between States than the inviolability of diplomatic envoys and embassies[6].”
In January 2021, the Federal Court of
Justice,[7]
held that State officials, do not enjoy functional immunity under customary
international law in foreign criminal proceedings for war crimes or certain
other crimes that are of concern to the international community as a whole.
The Court relied on the Nuremberg Principles, which laid down that functional immunity cannot be used as a defence in cases of crimes against peace, war crimes, or crimes against humanity.
The Court relied on the Nuremberg Principles, which laid down that functional immunity cannot be used as a defence in cases of crimes against peace, war crimes, or crimes against humanity.
In The Prosecutor v. Tihomir Blaskic[8], the International Criminal Tribunal for the former Yugoslavia (ICTY) charged Blaskic, who was the Commander of the Croatian forces in Central Bosnia, with war crimes and crimes against humanity that he was responsible for in Bosnia, and sentenced him to 9 years in prison.
In the summer of 2017, the UN
International Law Commission adopted Draft Article 7 and an associated draft
annex for its project on immunity of state officials from foreign criminal
jurisdiction. The draft article identifies six “crimes under international law
in respect of which immunity ratione materiae shall
not apply”: genocide; crimes against humanity; war crimes; crime of apartheid;
torture; and enforced disappearance. But is difficult to assume whether it mirrors lex lata.
As there is a lack of state practice[9]
including lack of widespread, representative state practice[10]
in support of ceasing immunity for state officials, it’s status as lex lata
can be doubted.
It is clear
that the seemingly absolute nature of immunity granted to State officials from
foreign criminal jurisdiction, is in fact, not absolute.
[2]
Vienna Convention on Diplomatic Relations, 18 April 1961, 500 U.N.T.S. 95-239
at art. 31-32.
[3]
Art. IV, para. 11, Convention on
the Privileges and Immunities of the UN (1946); Art. V, General Convention on
the Privileges and Immunities of the Organization of African Unity (1965).
[4]
Supra note 1.
[5]
Memorial of the Republic of Djibouti, 15 March 2007, para. 133.
[6]
United States Diplomatic and
Consular Staff in Tehran case (United States of America v. Iran) [1980] ICJ Rep 3, at para. 91.
[7]
BGH, Jan. 28, 2021, 3 StR
564/19 [BGH Immunity Decision].
[8]
Prosecutor v. Tihomir Blaskic (Appeal Judgement), IT-95-14-A, International
Criminal Tribunal for the former Yugoslavia (ICTY), 29 July 2004.
[9]
2017 Report, supra note 1,
at 178-91 (Commission's Commentary to Draft Article 7 and the associated draft annex).
[10]
Concepción Escobar Hernández
(Special Rapporteur for Immunity of State Officials from Foreign Criminal
Jurisdisction), Fifth Report, UN Doc. A/CN.4/701 (June 14, 2016)
Article Information
IMMUNITY OF STATE OFFICIALS FROM FOREIGN CRIMINAL JURISDICTION
Authors: A R ANJALI
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/09/19
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International Journal for Legal Research and Analysis
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