Immunities from Criminal Prosecution

• Author: Robert J. Currie
• Profession: Schulich School of Law, Dalhousie University
• Pages: 539-599

539

CHA PTER 11

IMMUNITIES FROM

CRIMINAL

PROSECUTION

A. INTRODUCTION

While the substantive law concerning indiv idual responsibility for

international crimes has incre ased since the end of WW II, there re-

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

national crimes and transnational crimes of international concern.

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

years, is immunity.1

Immunity from prosecution may be either personal or functional

in nature. Personal immunities are time limited and operate to deny a

particular court jur isdiction over a particular person while that person

is in off‌ice. Funct ional immunities present a permanent bar to adjudi-

1 For judicial conside ration of immunity in the cr iminal context in rece nt years,

see, for example, Case Con cerning the Arrest Warrant of 11 April 2000 (Demo-

cratic Republic of th e Congo v. Belgium), [2002] I.C.J. Rep. 3 [Arrest Warrant] and

R. v. Bartle and the Commissione r of Police for the Metropolis and Others, Ex Parte

Pinochet; R. v. Evans and Anot her and the Commissioner of Police for the Metropolis

and Others, Ex Part e Pinochet (1999), [1999] UKHL 17, [2000] 1 A.C. 147, [1999]

2 All E.R. 97 [Pinochet]. For academic commentary, see, for exa mple, Hazel

Fox, The Law of State Immu nity, 2d ed. (Oxford: Ox ford University Press, 20 08)

[Fox, State Immunity, 2d]; Yitiha Simbeye, Immunity an d International Criminal

Law (Aldershot, UK: Ash gate, 2004) [Simbeye]; and Ros anne van Alebeek, The

Immunity of States and The ir Off‌icials in Internatio nal Criminal Law and Inter-

national Huma n Rights Law (Oxford: Oxford University Pre ss, 2008).

INTERN ATIONAL AND TR ANSNATIONAL CRIM INAL LAW540

cation because they attach to the act rather than the actor.2 In simple

terms, personal immunity protects certain off‌ices, while functional

immunity protects cer tain acts. Because immunit y (both personal and

functional) is a procedural bar to jur isdiction, it should not be con-

fused with a defence to crimi nal liability; a defence operates to excuse

an otherw ise unlawful act, while immunitie s have no such effect. The

only role for immunities is to deny a court the opport unity to exercise

its jurisdiction because it is deemed that there are policy reasons which

justify doing so.3

Three types of immunity from cr iminal prosecution w ill receive

attention in th is chapter.4 The f‌irst is personal immunity or immunity

ratione personae (also called absolute immunity). This type of immun-

ity attaches only to certain high state off‌ices.5 The second t ype of im-

munity which will be considered is functional immunity, or immunity

ratione materiae. Immunity ratione materiae operates to immunize cer-

tain conduct.6 The f‌inal t ype of im munity which wi ll be examined is

a subset of the f‌irst — diplomatic immunity. While this is a species of

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

be considered separately.

2 See Robert Cr yer et al., International Crimina l Law and Procedure (Cambridge:

Cambridge Univer sity Press, 2007) at 423–24 [Cryer].

3 See, for example, Ha zel Fox, The Law of State Immunity (Oxford: Oxford Univer-

sity Press , 2002) [Fox, State Immunity] at 19–20. It should be noted th at in rela-

tion to function al immunities, it is someti mes asserted that it i s a defence rather

than a simple ju risdictional bar. This cont roversy will be dis cussed further in

Section B(3), below in this chapter.

4 This chapter w ill not consider immunitie s of states against civi l claims for ser-

ious human rig hts breaches amounting to i nternational crime s, nor the worthy

issue of whether Ca nada should adopt legislation si milar to the US’s Alien Tort

Claims Act, 28 U.S.C. §1350. But see Chri stopher K. Hall, “The Duty of States

Parties to t he Convention against Torture to Provide Procedure s Permitting Vic-

tims to Recove r Reparations for Torture Committed Abro ad” (2007) 18 E.J.I.L.

921; Lorna McGregor, “Torture and State Immun ity: Def‌lecting Impunit y,

Distorti ng Sovereignty” (2007) 18 E.J.I.L. 903; Noah B. Novogrodsky, “Immun-

ity for Torture: Lesson s from Bouzari v. Iran” (2007) 18 E.J.I.L. 939; Alex ander

Orakhela shvili, “State Immunit y and Hierarchy of Norms: Why the Hou se of

Lords Got It Wrong” (2007) 18 E.J.I.L. 955; and Wendy Adams, “In Se arch of a

Defence of the Transn ational Human Rights Par adigm: May Jus Cogens Norm s

be Invoked to Create Impl ied Exceptions in Domestic Stat e Immunity Statutes?”

in Craig Scott, e d., Torture as Tort (Oxford: Hart , 2001) at 250.

5 See, in general, v an Alebeek, above note 1, c. 4. Also see Dapo Ak ande, “Inter-

national L aw Immunities and the Inter national Crimin al Court” (2004) 98

A.J.I.L. 407 at 409–11 [Akande].

6 See, in general, v an Alebeek, above note 1, c. 3. See also Ak ande, ibid. at 412–15.

Immunitie s from Criminal Pros ecution 541

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

f‌ill whole textbooks.7 For th is reason, the focus of this chapter will be

on cer tain key questions. The basic rules of personal and functiona l

immunities will be explored. The focus will then tur n to the immun-

ities available for the so-c alled core crimes (for current pur poses these

are genocide, war crimes, and crimes against humanity) b efore inter-

national courts; th is discus sion will include the immunities applicable

before the International Criminal Court (ICC). Finally, attention will

be given to n ational courts and the immunities available for both core

crimes and the t reaty crime of torture.8

As wil l become apparent, there is currently some uncertainty sur-

rounding the applicability of immunities. In part this may be attr ibut-

able to a reconsideration of the rationales which underlie funct ional

immunity in particula r.9 For a number of years, there has been a re-

newed determination to address the abuses committed by state off‌i-

cials. A key part of th is shi ft toward s gre ater accountability has been

the will ingness to prosecute off‌icial s for their crimes.10 This new will-

ingness to prosecute has engaged both court s and commentators in a

consideration of the reasons for immunity a nd the law of immunity.

B. IMMUNIT Y IN INTER NATIONAL LAW

1) General Comments

As suggested above, immunity from prosecution ca n be a complicated

area of international law. While the parameters of diplomatic immun-

ity have been codif‌ied in a series of conventions, and are relatively un-

7 See, for example, the m aterials cited, above note 1, and Fox, State Immu nity,

above note 3.

8 Torture will be use d to establish an analy tical framework for asse ssing the

immunitie s available for treaty cri mes. Due to space limitat ions, other treaty

crimes w ill not be specif‌ically con sidered.

9 See, for example, van Aleb eek, above note 1, c. 5; Geoffrey Roberts on, “Ending

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

38 Cornell Int’l L .J. 649. In res pect of head-of-state immun ity, see Dav id S.

Koller, “Immunities of Foreig n Ministers: Paragr aph 61 of the Yerodia Judg ment

As It Pertain s to the Security Counci l and the International Cr iminal Court”

(2004) 20 Am. U. Int’l L. Rev. 7 at 13 and the reference s cited therein [Koller];

more generally, see Lee M. Capl an “State Immunity, Human Right s and Jus

Cogens; A Critique of t he Normative Hierarchy Theor y” (2003) 97 A.J.I.L. 741.

10 See Chi le Eboe-Osuji, “State Immunit y, State Atroc ities and Civil Justice i n the

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