Firstly, we will discuss the purpose of immunities in international law. Secondly, we will explore the types of immunities available. And thirdly, we will examine the effect of immunities on trials and international criminal law.
The basic purpose of international law immunities is to safeguard the state and its officials from the jurisdiction of another state (G.A. Res. 25/262, 1971). This branch of international law stems from the idea of sovereign equality (Montevideo Convention on the Rights and Duties of States, 1933). It functions as a mechanism to prevent undue interference from other states and their officials in the affairs of a state (Case Concerning United States Diplomatic and Consular Staff in Tehran, 1980). However, this aspect of law is in constant tension with human rights and compliance mechanisms that aim to end impunity for crimes committed by state officials (Case Concerning Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 2002).
With the development of international criminal law, there is a need to prosecute officials who misuse state machinery to commit crimes. This tension arises when domestic courts fail to prosecute such officials, leading to the possibility of prosecution in foreign jurisdictions or by international tribunals (United Nations Security Council Resolution 827, 1993).
The trend of prosecuting state officials in foreign jurisdictions has increased in contemporary times, especially with the adoption of the doctrine of universal jurisdiction for certain crimes (Universal Declaration of Human Rights, Article 11, 1948). However, conducting such prosecutions remains challenging due to the grant of immunity, which is a result of negotiated relations between states (Vienna Convention on Diplomatic Relations, 1961). Arresting an official is a significant hurdle before the prosecution can commence (Case Concerning Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 2002).
There is a fine line between diplomacy and law in dealing with this issue. This chapter will explore the development of international law immunities, scrutinize the two types of immunity, and study their application in international criminal courts and tribunals. It will also discuss recent developments, such as Article 27 and 98 of the Statute of the International Criminal Court (ICC) (ICC Statute, 1998).
Let us begin with the first kind of immunity: immunity ratione personae. This form of immunity applies to state officials based on their holding of specific offices, such as heads of state, heads of government, and foreign ministers. Diplomats on special missions are also covered by this immunity. The purpose of granting this immunity is to ensure the smooth functioning of state operations and allow officials to travel without fear or harassment from other states or diplomatic agencies. However, this immunity only extends to the duration of the official's term and covers both their official and personal actions (ICC Statute, Article 27(1), 1998).
The second kind of immunity is immunity ratione materiae. This immunity attaches to the official's conduct carried out on behalf of the state. It aims to protect both the state's acts and the officials performing them. This immunity is granted because officials act as agents of the state, and their actions can be attributed to the state itself. It extends beyond the official's tenure and applies to both incumbent and former officials. However, this immunity only covers official acts and does not extend to the person (Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 2002).
Functional immunity, which generally applies to state officials, does not protect them from international crimes. Crimes that violate jus cogens norms, such as war crimes and crimes against humanity, are not exempted by functional immunity. While there have been arguments in favor of functional immunity, several courts have rejected them (International Court of Justice Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996).
The concept of immunities becomes more complex when applied to international tribunals. Immunities are not applicable to tribunals as they do not form horizontal relationships with states. However, there are other considerations to be taken into account, such as the provisions of the tribunal's instruments regarding immunity and the jurisdictional effects of those instruments (ICC Statute, Article 98, 1998).
Recent developments in the International Criminal Court (ICC) Statute, such as Article 27, have extended individual criminal responsibilities and eroded the immunities of state officials under customary international law. However, Article 98 of the ICC Statute presents a challenge to the application of immunities. It states that the court may not proceed with a request for surrender or assistance if it would require the requested state to act inconsistently with its obligations under international law regarding immunity (ICC Statute, Article 98, 1998).
The tension between Articles 27 and 98 is exemplified in the case of Omar al-Bashir, the former head of state of Sudan. The Security Council referral under Chapter 7 of the UN Charter and the arrest warrant issued against al-Bashir tested the interaction between these articles. While Article 27 waives immunities, Article 98 directs the court to consider the obligations of the requested state regarding immunities. The resolution by the Security Council and the principle of ending impunity played significant roles in the outcome of the case (UN Security Council Resolution 1593, 2005).
It is important to study immunities as they have significant implications for international criminal justice. Even sitting heads of state do not have immunity from the jurisdiction of the International Criminal Court or foreign criminal jurisdiction. Cases like Hissein Habré of Chad and Augusto Pinochet have further shaped the understanding of immunities in international law (Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 2002; Case Concerning the Extradition of Pinochet (Chile v. United Kingdom), 2000).