Head of State Immunity under Customary International Law

By- Gaurav Sethi –CLC-DU law faculty,Delhi

Introduction Customary international law on the immunity of

heads of state and government stipulates that a head of state has immunity, which includes personal inviolability in addition to acts done in pursuance of official state actions, special protection for his or her dignity, immunity from criminal and civil jurisdiction, and from arrest and/or prosecution in a foreign state on charges concerning all crimes, including international crimes.

Types of Immunities

ratione personae, also known as “personal immunity”.

ratione materiae, also known as “functional immunity”

“RATIONE PERSONEE”

Under international law there are two broad types of immunity. The first is immunity ratione personae, also known as “personal immunity”. This is an extensive immunity that can be wide enough to cover both public and private acts, and includes inviolability and immunity from criminal jurisdiction. It is derived from the office of the individual concerned and, according to the ICJ, is enjoyed by heads of state, heads of government, foreign ministers and, possibly, a limited category of other very high-ranking state representatives. Although broad in its substantive application, this type of immunity is limited both temporally and as to the category of office-holders to whom it may apply. Once the individual has left office, he or she ceases to be entitled to such immunity.

RATIONAE MATERIAEThe second is immunity ratione materiae, also known as

“functional immunity”. This covers the official acts of all state officials and is determined by reference to the nature of the acts in question rather than the particular office of the official who performed them. As such, a former state official, including a former head of state or head of government, can claim the benefit of such immunity even after leaving office.The fact that it is well settled that a criminal act may be attributed not only to the state but also to the official who performed it has prompted some to question whether it is appropriate for immunity to apply at all in such cases. This principle has long been accepted, albeit infrequently applied.

JUS COGENS JUS COGENS is  peremptory norm (also called jus cogens or ius cogens  for "compelling law") is a fundamental principle of international law that is accepted by the international community of states as a norm from which no derogation is permitted. There is no clear agreement regarding precisely which

norms are jus cogens nor how a norm reaches that status, but it is generally accepted that jus cogens includes the prohibition of genocide, maritime piracy, slaving in general (to include slavery  as well as the slave trade), torture, non-refoulement and wars of aggression and territorial aggrandizement. Recent scholarship has also proposed the idea of a regional jus cogens.

PINOCHET ‘S CASE

The Pinochet case, in which the United Kingdom House of Lords allowed an extradition application by Spain in respect of the former Chilean president to proceed, remains the leading case on such an exception. The case concerned allegations of widespread and systematic torture carried out in Chile and various ordinary crimes of murder and conspiracy to murder, including such conspiracies in Spain. The court confirmed that, if he had been a serving head of state, Augusto Pinochet would have been entitled to an absolute personal immunity on all the charges and, as a former head of state, he would as a general rule continue to enjoy functional immunity in respect of acts carried out in his official capacity as head of state. All but two of the judges took the view that Pinochet enjoyed immunity for the “ordinary‟ crimes on the ground that the acts alleged, although criminal, had been governmental and must therefore give rise to functional immunity.The court broke new ground, however, in considering whether there could be an exception to functional immunity where the international crime of torture was involved.

Other judges referred to the jus cogens status of the prohibition against torture, arguing that such a prohibition, by reason of its peremptory and supreme nature, must override any immunity. Article 53 of the Vienna Convention on the Law of Treaties, which defines JUS COGENS as a norm accepted and recognised by the international community as a whole as a norm from which no derogation is permitted

YERODIA/ ARREST WARRANT CASE – CONGO Vs BELGIUM

On the other hand, the decision by the ICJ in the Yerodia/Arrest Warrant case held that serving heads of state, heads of government and foreign ministers enjoy a broad personal immunity from the jurisdiction of foreign domestic courts, including immunity from prosecution for international crimes. In the Arrest Warrants case, the ICJ held that Foreign Affairs Ministers enjoy full immunity from criminal jurisdiction and inviolability while in office since this immunity is important for the exercise of their duties. This immunity ensures that Foreign Affairs Ministers can travel without hindrance in the performance of their duties. Heads of state are by nature of their office representatives of the state wherever they are and also enjoy this immunity. Even though the case being dealt with in the Arrest Warrants case concerned a Foreign Affairs Minister, the same immunities would be accorded to heads of state. This immunity is only functional, since it accords heads of states free performance of their duties in representing their state Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment, ICJ Reports 2002, p. 3; 128 ILR 1. The ICJ made it clear that such immunity subsists even where it is alleged that an international crime has been committed. It subsequently reaffirmed its judgment as regards heads of state in Certain Questions of Mutual Judicial Assistance in Criminal Matters (Djibouti v France).

It has long been clear that serving Heads of State, Heads of Government, and diplomats possess immunity ratione personae.

In describing the rule according immunity ratione personae in the Arrest Warrant case, the ICJ stated it applies to „diplomatic and consular agents [and] certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs. The use of the words “such as” suggests that the list of senior officials entitled to this immunity is not closed.

IMMUNITY for EMBASSIES .

Provisions regarding immunities relating to properties, including the sovereign properties on foreign soil has been codified by European Commission of Human Rights

The provisions encompass that the premises of the mission (the embassy) are inviolable and agents of the receiving state may not enter them without the consent of the head of mission as per Article 22 of the convention. These ‘premises’ include any buildings and ancillary land , irrespective of ownership, which are used for the purpose of the mission, including the residence of the head of mission .Likewise as per Article 24, the property and means of transport of the mission are inviolable even if they are not on the premises. Article 22 stipulates that he receiving state under a duty to protect the mission and it will be responsible under international law if it fails to do so.

CONCLUSION

 

What is important is not the nature of the alleged activity or when it was carried out, but rather whether the legal process invoked by the foreign state seeks to subject the official to a constraining act of authority at the time when the official was entitled to the immunity. Thus, attempts to arrest or prosecute these officials would be a violation of the immunity whilst invitations by a foreign state for the official to testify or provide information voluntarily would not. However, since this type of immunity is conferred, at least in part, in order to permit free exercise by the official of his or her international functions, the immunity exists for only as long as the person is in office

The principle that immunity ratione personae extends even to cases involving allegations of international crimes must be taken as applying to all those serving state officials and diplomats possessing this type of immunity. This immunity ratione personae has also been extended to the head of government and Minister for Foreign Affairs (and possibly other Ministers who travel as part of their portfolio) as well as on a more limited basis, to officials on special mission. As the model of State immunity has shifted from Absolute to Restrictive, there has also been pressure to set aside immunity for private acts for officials.

the alignment between state immunity and the immunity of state

officials appears to be shifting. The Third (Procedural Model of State immunity – represented by the IC’s rejection in the Jurisdictional Immunities Judgement of an expansion of the Restrictive Model to include acts in violation of jus cogens norms-reverts, in respect of state immunity, to its absolute nature in respect of acts committed during armed conflict.

Signs of a different approach, grounded in a desire to end impunity for international crimes , are emerging with respect to the immunity of former high ranking officials and lower ranking officials (former or serving) accused of human rights violations, both before national and international courts. There also indication of further ‘split’ developing –between high ranking and ordinary state officials-with the high ranking officials , particularly the troika of head of state, head of government, and Foreign Minister, retaining immunity when out of office for acts committed while in office in violation of Jus Cogens.

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