Immunities from Criminal Prosecution

AuthorJoseph Rikhof/Robert J Currie
While the substantive law concer ning individual respon sibility for
international cr imes has increased since the end of World War II, there
remain signif‌icant barriers to the prosecution of state off‌icia ls for inter-
national crimes and transnational cr imes of international concern.1
One such barrier is i mmunity.2 As will be discussed below, immunity
1 Dapo Akande & Sa ngeeta Shah, “Immunitie s of State Off‌icials, Intern ational
Crimes, and Fore ign Domestic Courts” (2010) 21 EJIL 815 at 815–16.
2 For judicial cons ideration of immunity in the c riminal context in r ecent years,
see, for example, Case Con cerning the Arrest Warrant of 11 April 2000 (Democra tic
Republic of the Congo v Belgium), [2002] ICJ Rep 3 [Arrest Warrant]; R v Bartle
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 Othe rs,
Ex Parte Pinochet (1999), [1999] UKHL 17, [2000] 1 AC 147, [1999] 2 All ER 97
[Pinochet or Pinoche t No. 3]; Khurts Bat v Invest igating Judge of the German Fed-
eral Co urt, [2011] EWHC 2029 [Khurts Bat]; A v Ministère Public d e la Confédéra-
tion, Decision of 25 July 2012; Immunities a nd Criminal Proceedings (Equatorial
Guinea v France), 6 June 2018, ICJ General Li st No 163 (Prelimin ary Objections),
online:‌iles /case-related /163/163-20180606-J UD-01-00-EN.pdf
(rejecting the arg ument that article 4 of the Palermo Convent ion incorporates
the customar y law on state and off‌icial im munity; the court found that it h as no
jurisdict ion to address claims t hat France violated the im munity ration e perso-
nae of Equatorial Gui nea’s second vice-president). For academic commenta ry,
see, for example, Ha zel Fox, The Law of State Immunity, 2d ed (Oxford: Oxford
University Pre ss, 2008) [Fox, State Immunity, 2d]; Yitiha Sim beye, Immunity and
from prosecution may be either personal or functional in nature. Per-
sonal immunities a re time limited and operate to deny a particular cour t
jurisdiction over a part icular person while that person occupies a high
state off‌ice. Functional immunities permanently prevent adjudication
because they attach to t he act rather than the actor.3 In simple terms,
personal immunit y protects certain off‌ices, while funct ional immun-
ity protects certain act s. Because immunity (bot h personal and func-
tional) is a procedural bar to jur isdiction, it should not be confused
with a defence to crimin al liability. A defence excuses or justif‌ies an
otherwise unlawful act; immunitie s have no such effect. Immunities
deny a court the opportunity to exercise its jurisdiction because it i s
deemed that there are policy rea sons which justify doing so.4 Three
types of im munity from criminal prosecution will receive attention
in this chapter.5 The f‌irst is personal im munity or immunity ra tione
personae (also cal led “absolute immunity”). This type of im munity
International Criminal Law (Aldershot, UK: A shgate, 2004); Rosanne van Alebeek,
The Immunity of States and The ir Off‌icials in Internat ional Criminal Law and Inter-
national Huma n Rights Law (Oxford: Oxford University Pre ss, 2008); and Tom
Ruys, Nicolas Angelet, Luc o Ferro, eds, The Cambridge Handbook of Immu nities
and International Law (Cambridge: Cam bridge University Press , 2019) ch 21–25.
3 See Robert Cr yer et al, An Introduction to Interna tional Criminal Law and Proced-
ure, 4th ed (Cambridge: Ca mbridge University Pres s, 2019) at 506–31.
4 See, 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 rel a-
tion to function al immunities, it is someti mes asserted that it i s 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 Interve ning), 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 argum ent that the application of immun ity amounted to a derogation
of substant ive jus cogens rule s. In its discussion, t he court noted it had previ-
ously taken th at approach in the Arrest Warrant case, above note 2.
5 This chapter wi ll not consider the immunitie s of states against civi l claims for
serious huma n rights breaches amount ing to international cr imes, nor will
the enactment of t he Justice for Victims of Terrorism Act, SC 2012, c 1, and the
consequenti al amendments to the State Immunit y 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 Abroad” (2007) 18 EJIL 921; Lorna Mc Gregor, “Torture and State
Immunity: De f‌lecting Impunity, Distorti ng Sovereignty” (2007) 18 EJIL 903;
Noah B Novogrodsky, “Immun ity for Torture: Le ssons from Bouzari v. Iran
(2007) 18 EJIL 939; Alexander Ora khelashvili, “State I mmunity and Hierarchy
of Norms: Why the Hous e of Lords Got It Wrong” (2007) 18 EJIL 955; and
Wendy Adams, “In Se arch of a Defence of the Transnationa l Human Rights
Paradigm: M ay Jus Cogens Norms Be In voked to Create Implied Exceptions in
Immunitie s from Criminal Prosecution 643
attaches to certai n high state off‌ices.6 The second type of immunity
that will be considered is functional immunity, or immunity ratione
materiae. Immunity ratione materiae operates to immunize cer tain con-
duct.7 The f‌inal type of immunity which will be examined is a subset
of the f‌irst — diplomatic immunity. While this is a sp ecies of personal
immunity, it is governed by specif‌ic conventions and so will be con-
sidered separately. Immunity is a vast topic which, if considered in its
entirety, can f‌ill whole textbooks.8 For this rea son, the focus of this
chapter will be on cert ain key questions. First, what are the basic rules
of personal and functiona l immunity? Second, what are the immunities
available for the so-called core cr imes (for current purposes, these are
genocide, war crimes, crimes against humanity, and aggression) before
international court s. Third, what are the immunities avai lable before
national courts for both the core cr imes and crimes of intern ational
concern (torture will be used as a specif‌ic example)?9 As will become
apparent, the availability of immunity continues to be debated. In part,
this may be attributable to a reconsideration of the rationales which
underlie f unctional i mmunity;10 another element is the continuing dis-
agreement as to whether functional or personal immunity may bar pro-
ceedings before internat ional courts.11 The debate over immunities may
also stem from concerns by state s that their off‌icials may be prosecuted
Domestic State Im munity Statutes?” in Craig Scot t, ed, Tort ure as To rt (Ox ford :
Hart, 2001) at 250; Ruys et al, above note 2, c h 31.
6 See, in general, v an Alebeek, above note 2, ch 4. Also see Da po Akande, “Inter-
national L aw Immunities and the Inter national Crimin al Court” (2004) 98 AJIL
407 at 409–11; Ruys et al, above note 2, ch 24.
7 See , in general, van Alebeek, above note 2 , ch 3 and at 412–15. See also Ruy s et al,
above note 2, ch 25.
8 See for example the mat erials cited above note 2 and Fox, State Immu nity, above
note 4.
9 Torture will be u sed to establish an ana lytical framework for ass essing the
immunitie s available for treaty cri mes. Due to space limitation s, other treaty
crimes w ill not be specif‌ically con sidered.
10 See, for ex ample, van Alebeek, above note 2, ch 5; Geoff rey Robertson, “Ending
Impunity: How Inte rnational Crimi nal Law Can Put Tyrants on Trial” (2005)
38 Cornell Int’l LJ 64 9. In respect of he ad-of-state immunity, see David S Kol ler,
“Immunities of Forei gn Ministers: Paragr aph 61 of the Yer odia [Arrest Warrant]
Judgment as It Perta ins to the Security Coun cil and the Internationa l Criminal
Court” (2004) 20 Am U Int’l L Rev 7 at 13 and t he references cited therein; more
generally, see Lee M Capl an, “State Immunity, Human Right s and Jus Cogens;
A Critique of the Nor mative Hierarchy Theory” (2003) 97 AJIL 741; Ruys et al,
above note 2, ch 25.
11 This q uestion will largely be ex plored through examin ation of the ICC’s
attempted prosecut ion of Sudan’s former president, Omar Al- Bashir.

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