Functional Immunity

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  • Topic: International Criminal Court, Crime against humanity, Customary international law
  • Pages : 3 (872 words )
  • Download(s) : 107
  • Published : November 22, 2010
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This type of immunity arises from customary international law and treaty law and confers immunities on those performing acts of state (usually a foreign official). Any person who in performing an act of state commits a criminal offence is immune from prosecution. This is so even after the person ceases to perform acts of state. Thus it is a type of immunity limited in the acts to which it attaches (acts of state) but will only end if the state itself ceases to exist. This type of immunity is based on respect for sovereign equality and state dignity. The offices usually recognised as attracting this immunity are Head of State or Head of Government, senior cabinet members, Foreign Minister, and Minister for Defence: see the Arrest Warrant Case,Pinochet Case (R v Bow Street Magistrates; ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147, House of Lords). Such officers are immune from prosecution for everything they do during their time in office. For example, an English court held that a warrant could not be issued for the arrest of Robert Mugabe on charges of international crimes on the basis that he was a presently serving Head of State at the time the proceedings were brought: Mugabe, reported at (2004) 53 ICLQ 789. Other examples are the attempts to prosecute Fidel Castro in Spain and Jiang Zemin in the USA. However, the moment accused leaves office, they are liable to be prosecuted for crimes committed before or after their term in office, or for crimes committed whilst in office in a personal capacity (subject to jurisdictional requirements and local law). Pinochet was only able to come to trial because Chile and the UK had both signed and ratified the UN Convention Against Torture through which such immunities were waived. It may be the case that personal immunity is itself being eroded. In 2004 the Appeals Chamber of the Special Court for Sierra Leone held that indicted Liberian president Charles Taylor could not invoke his Head of State...
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