Immunities are of two types. This is an immunity granted to people who perform certain functions of state. This is an immunity granted to certain officials because of the office they state jurisdiction in international law pdf, rather than in relation to the act they have committed. Any person who, in performing an act of state, commits a criminal offence is immune from prosecution.
That is so even after the person ceases to perform acts of state. The immunity, though applied to the acts of individuals, is an attribute of a state, and it is based on the mutual respect of states for sovereign equality and state dignity. States thus have a significant interest in upholding the principle in international affairs: if a state’s officials are to be tried at all for anything, it will be at home. Many countries have embodied the immunities in domestic law. Such officers are immune from prosecution for everything they do during their time in office. It may be the case that functional immunity is itself being eroded. Democratic Republic of the Congo v.
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.
It is worth noting that the decisions of the Spanish and UK courts in relation to Pinochet were based directly on existing domestic law, which had been enacted to embody the obligations of the treaty. Although a state party to the treaty, Chile itself had not enacted such laws, which define the specified international crimes as crimes falling within the domestic criminal code and making them subject to universal jurisdiction, and thus Chile could only prosecute on the basis of its existing criminal code – murder, abduction, assault etc. 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. 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. However, other jurists hold that heads of state and state officials still can be prosecuted by foreign courts after the end of their terms of office. It is extended to diplomatic agents and their families posted abroad and is also valid for their transfer to or from that post, only for the country to which they are posted. Under personal immunity, private residence, papers, correspondence, and property of an official enjoying personal immunities are inviolable. No immunities hold for private immoveable property unless it is 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 the official has voluntarily submitted to the proceedings.
Personal immunities cease with the cessation of the post. When a person leaves office who is under a personal immunity and has committed a criminal act covered also by functional immunity, the personal immunity is removed, as usual. Senator Pinochet was able to be extradited to face only charges not under functional immunity and meeting the separate tests for extradition, under English law. Italy versus India, PCA case no. Indian government from prosecuting two Italian marines in connection with an incident which took place outside India’s territorial waters but within its EEZ that resulted in the death of two Indian fishermen. States may find ways around domestic immunity if they want to.
After unsuccessful appeals which reached the Supreme Court, his asserted functional immunity either as head of state or as a parliamentarian, under the amnesty law of 1978, was lifted, and the indictment proceeded. Pinochet never faced trial in court for his alleged crimes because of various health conditions. However, after 2004, his immunity was challenged and removed in most indictments against him. Akande, Dapo, and Sangeeta Shah.