Immunities from Criminal Prosecution

• Author: Robert J Currie, Dr Joseph Rikhof
• Pages: 576-640

576

CHAPTER 11

IMMUNITIES

FROM CRIMINAL

PROSECUTION

A. INTRODUCTION

While the substantive law concerning individual responsibility for

international crimes has increased since the end of WW II, there

remain signif‌icant bars to the prosecution of state off‌icials for inter-

national crimes and transnational crimes of international concern.1

One bar, which has received considerable attention over the last several

years, is immunity.2

As will be discussed below, immunity from prosecution may be

either personal or functional in nature. Personal immunities are time

limited and operate to deny a particular court jurisdiction over a par-

1Dapo Akande & Sa ngeeta Shah, “Immunitie s of State Off‌icials, Inter national

Crimes, and Forei gn Domestic Courts” (2010) 21 EJIL 815 at 815–16.

2For judicial conside ration of immunity in the cr iminal context in rec ent years,

see, for example, Case Conce rning the Arrest Warrant of 11 April 2000 (Demo-

cratic Republic of the Congo v Belgium), [2002] ICJ Rep 3 [Yerodia] and R v Bar tle

and the Commissione r of Police for the Metropolis and Others, Ex Parte Pinoche t; R

v Evans and Another a nd the Commissioner of Police for the Metropolis and Others ,

Ex Parte Pinochet (1999), [1999] UKHL 17, [2000] 1 AC 147, [1999] 2 All ER 97

[Pinochet]. For academic commentar y, see, for example, Ha zel Fox, The Law of

State Immunity, 2d ed (Oxford: Oxford Un iversity Press, 2008) [Fox, State Im-

munity, 2d]; Yitiha Simbeye, Immunity and Inte rnational Criminal Law (A lder-

shot, UK: Ashgate, 20 04); and Rosanne va n Alebeek, The Immunity of States and

Their Off‌icials in Inte rnational Criminal Law an d International Human Rights L aw

(Oxford: Oxford Univers ity Press, 2008).

Immunities from Criminal Prosecution577

ticular person while that person is in off‌ice. Functional immunities

present a permanent bar to adjudication because they attach to the

act rather than the actor.3 In simple terms, personal immunity pro-

tects certain off‌ices, while functional immunity protects certain acts.

Because immunity (both personal and functional) is a procedural bar

to jurisdiction, it should not be confused with a defence to criminal

liability; properly understood, a defence operates to excuse or justify

an otherwise unlawful act, while immunities have no such effect. The

only role for immunities is to deny a court the opportunity to exercise

its jurisdiction bec ause it is deemed that there are policy reasons which

justify doing so.4

Three types of immunity from criminal prosecution will receive

attention in this chapter.5 The f‌irst is personal immunity or immunity

ratione personae (also called “absolute immunity”). This type of im-

munity attaches only to certain high state off‌ices.6 The s econd ty pe of

3See Robert Cr yer et al, An Introduction to Interna tional Criminal Law and Proce-

dure, 2d ed (Cambridge: Cambridge Univer sity Press, 2010) at 533–34.

4See, for example, Ha zel Fox, The Law of State Immunity (Oxford: Oxford Unive r-

sity Press, 2 002) [Fox, State Immunity] at 19–20. It should be noted that in r ela-

tion to function al immunities, it is somet imes asserted th at it is a defence rather

than a simple jur isdictional bar. This cont roversy will be dis cussed further in

Section B(3), below in this chapter. See a lso Jurisdictional Immunitie s of the State

(Germany v Italy: Greece Intervening ), ICJ, 3 February 2012 at para s 92–97. In

that judgment, t he court relied on the procedura l nature of state immunity to

reject the argu ment that the application of immun ity amounted to a derogation

of substantive ju s cogens rules. In its dis cussion, the court noted it had pre vi-

ously taken th at approach in the Arrest Warrant case, above note 2.

5This chapter wi ll not consider immunities of st ates against civil cl aims for

serious hum an rights breaches amou nting to internationa l crimes, nor will t he

recent enactment of t he Justice for Victims of Terrorism Act, SC 2012, c 1, and the

consequenti al amendments to the State Im munity Act, RSC 1985, c S-18, which

will allow c ivil claims again st states in some situation s, be discussed. But see

Christopher K H all, “The Duty of States Partie s to the Convention against Torture

to Provide Proce dures Permitting Victi ms to Recover Reparations for Torture

Committed Abro ad” (2007) 18 EJIL 921; Lorna McGregor, “Torture and Stat e

Immunity: De f‌lecting Impunity, Distorti ng Sovereignty” (2007) 18 EJIL 903;

Noah B Novogrodsk y, “Immunity for Torture: L essons from Bouzari v. Iran”

(2007) 18 EJIL 939; Alexander Ora khelashvili, “State Im munity and Hierarchy

of Norms: Why the Hou se of Lords Got It Wrong” (2007) 18 EJIL 955; and

Wendy Adams, “In Sea rch of a Defence of the Transnationa l Human Rights

Paradigm: M ay Jus Cogens Norms Be I nvoked to Create Implied Exceptions in

Domestic State Im munity Statutes?” in Craig Scot t, ed, Tort ure as To rt (O xford :

Hart, 2001) at 250.

6See, in general, van Alebee k, above note 2, c 4. Also see Dapo Akande, “Int er-

national L aw Immunities and the Int ernational Crim inal Court” (2004) 98 AJIL

407 at 409–11.

INTERNATIONAL AND TR ANSNATIONAL CRIMINAL LAW578

immunity which will be considered is functional immunity, or immun-

ity ratione materiae. Immunity ratione materiae operates to immunize

certain conduct.7 The f‌inal type of immunity which will be examined

is a subset of the f‌irst —diplomatic im munity. While this is a specie s of

personal immunity, it is governed by its own conventions and so will

be considered separately.

Immunity is a vast topic which, if considered in its entirety, can f‌ill

whole textbooks.8 For this reason, the focus of this chapter will be on

certain key questions. The basic rules of personal and functional im-

munities will be explored. The focus will then turn to the immunities

available for the so-called core crimes (for current purposes, these are

genocide, war crimes, crime s against humanity, and aggression) before

international courts; this discussion will include the immunities ap-

plicable before the International Criminal Court (ICC). Finally, atten-

tion will be given to the caselaw of national courts and the immunitie s

available before national courts for both the core crimes and the treaty

crime of torture.9

As will become apparent, there continues to be some uncertainty

surrounding the applicability of immunities. In part this may be attrib-

utable to a reconsideration of the rationales which underlie functional

immunity in particular.10 For a number of years, there has been a re-

newed determination to addres s the abuses committed by state off‌icials.

A key part of this shift towards greater accountability h as been the will-

ingness to prosecute off‌icials for their c rimes.11 This new willingness to

prosecute has engaged both courts and commentators in a considera-

tion of the reasons for immunity and the law of immunity.

7See, in general, v an Alebeek, ibid, c 3. See also Aka nde, ibid at 412–15.

8See, for example, t he materials cited, above note 2 , and Fox, State Immunity,

above note 4.

9Torture will b e used to establish an an alytical framework for as sessing the

immunitie s available for treaty cr imes. Due to space limitat ions, other treaty

crimes w ill not be specif‌ically con sidered.

10See, for exa mple, van Alebeek, above note 2, c 5; Geoffrey Robe rtson, “Ending

Impunity: How Inte rnational Crimi nal Law Can Put Tyrants on Tria l” (2005)

38 Cornell Int’l LJ 64 9. In respect of he ad-of-state immunity, see David S Kol ler,

“Immunitie s of Foreign Ministers: Parag raph 61 of the Yerod ia Judg ment as It

Pertains t o the Security Council a nd the International Cr iminal Court” (2004)

20 Am U Int’l L Rev 7 at 13 and the re ferences cited therein; more genera lly, see

Lee M Caplan, “St ate Immunity, Human Rights a nd Jus Cogens; A Critique of

the Normative H ierarchy Theory” (2003) 97 AJIL 741.

11See Chi le Eboe-Osuji, “State Immunit y, State Atrocitie s and Civil Justice in the

Modern Era of Inter national Law” (2007) 45 Can Y B Int’l Law 223 at 224.