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The Resolution of the Institute of International Law on the Immunities of Heads of State and Government

Published online by Cambridge University Press:  17 January 2008

Hazel Fox
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Extract

A pressing issue of the day requiring authoritative resolution is whether public officials when in office carrying out their official functions may be prosecuted by the courts of other countries for alleged international crimes. Objection has been made, though not by the Danish Government, to a new ambassador appointed by the State of Israel, taking up his appointment as head of the Israeli diplomatic mission in Copenhagen, on the ground of his implication in war crimes. Recently, criminal proceedings were brought in the French courts against Colonel Ghadaffi as the serving Head of the State of Libya for complicity in acts of terrorism resulting in the destruction of a French civil aircraft and death of all its passengers. Writing critically of the Lords' decision in the Pinochet case, Henry Kissinger talks of the tyranny of judges replacing that of government, of prosecutorial discretion without accountability and warns that ‘historically the dictatorship of the virtuous has often led to inquisitions and witch hunts’.

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 51 , Issue 1 , January 2002 , pp. 119 - 125
Copyright
Copyright © British Institute of International and Comparative Law 2002

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References

1 13th Commission, Preliminary Report of Rapporteur para 16, ADI 2001, I–Vancouver.

2 But not necessarily immunity from execution. There being little state practice on the point, the Resolution leaves the matter unregulated Art 15(1) second sentence providing: ‘This provision is without prejudice to any immunity from execution of a Head of Government.’

3 No immunity is given to a member of the family of the Head of State or of Government or to members of his suite but they may be afforded special treatment as a matter of comity or as a member of a special mission accompanying a Head abroad. Art 5.

4 Arret no 1414, 13 Mar 2001, Cass Crim, 1 at 2. The Court added: ‘en l'état du droit international, le crime dénoncé, qu'elle qu'en soit la gravité, ne reléve pas des exceptions au principe de l'immunité des chefs d'États étrangers en exercice’, ibid, at 3. In reliance on this statement of the French court, Zappala argues that, while rejecting terrorism as a crime of sufficient gravity to remove immunity, the French court implicitly acknowledged that there were some international crimes for which no functional immunity ratione materiae could be accorded. Zappala includes among these crimes crimes against humanity, genocide, torture and war crimes. S Zappala, ‘Do Heads of State in Office enjoy immunity from jurisdiction of international crimes? The Ghaddafi Case before the French Cour de Cassation’ EJIL, 12 (2001) 595.

5 Preliminary Report of Rapporteur, loc cit para 20.

6 The inclusion within the reservation of acts performed exclusively to satisfy a personal interest, however, may give rise to problems of construction. The list of prosecutable acts appears to include three categories of totally disparate acts; (1) crimes under international law ( 2) acts unlawful according to international or municipal law performed exclusively for personal gain and (3) acts which are not an international crime, nor at present in most national laws a municipal offence. The inclusion of (2) acts exclusively for personal gain suggests that generally, acts for mixed purposes may be construed as lying within the performance of official duties, Emphasising that these immunities of Heads of State or of Heads of Goverment should not be understood to allow him or her to misappropriate the assets of a State which they represent, and that all States shall render each other mutual assistance in the recovery of such funds by the State to whom they belong.

7 See Cahier, Le droit diplomatique contemporain 341; J Salmon Droit diplomatique 2nd edn. 599.

8 The final Act of the Rome Conference made no mention of such misappropriation or money laundering and included a resolution referring only terrorism and drug-trafficking to the Review Conference with a view to their future inclusion as crimes within the ICC Statute. See generally N Kofele-Kale, The International Law of Responsibility for Economic Crime (1995).

9 Art 11 provides; ‘(1) Nothing in this Resolution may be understood to detract from (a) obligations under the Charter of the United Nations; (b) the obligations under the statutes of the international criminal tribunals as well as the obligations, for those States that have become parties thereto, under the Rome Statute for an International Criminal Court; (2) This Resolution is without prejudice to (a) the rules which determine the jurisdiction of a tribunal before which immunity may be raised; (b) the rules which relate to the definition of crimes under international law; (c) the obligations of cooperation incumbent upon States in these matters. (3) Nothing in this Resolution implies nor can be taken to mean that a Head of State enjoys an immunity before an international tribunal with universal or regional jurisdiction.’

10 In addition to the general debates, every article was individually scrutinised; all were adopted by consensus except Arts 6,11, and 14. Objection to Arts 6 and 14 was on the technical ground that Art 6 did not strictly apply to a former Head. On 26 Aug the Resolution as a whole was adopted by 31 voting in favour, none against and 6 abstentions

11 Saltany v Reagan and Others 886 F 2d 438(DC Cir. 1989) 87 ILR 681; Kilroy v Windsor (Civil Action No C-78–291 (1978) 81 ILR 605) (claim relating to treatment of prisoners in Ireland).

12 In addition to the case cited at n 4 above, see Honecker BGH 14 Dec (1984) 80 ILR; 365 Ric Arafat e altro Foro it (1986) II 279; Marcos Swiss Fed Trib, 1 Dec 1989, 102 ILR 201; Ex parte Pinochet R v Bow Street Metropolitan Stipendiary, ex parte Pinochet Ugarte (Amnesty International Intervening), (No 3) [2000] AC 151; [1999] 2 All ER 97.

13 Village Holdings SDN BHD v HM the Queen in England High Court Malaysia, 7 Jan 1097 87 ILR 223 applies the common law strict immunity from civil jurisdiction in relation to the private property of a Head of State.

14 Nobili v Charles 1st of Austria Clunet (1921) 626, AD 1919–22 no 90; Mobutu and Zaire v Societe Logrine 31 May 1994 Paris Ct of App., 113 ILR 481; Marcos Swiss Fed Trib, 2 Nov 1989, 102 ILR 202.