Immunity on various occasions. The domestic laws implemented in

 

 

 

 

 

Immunity of Former Heads of States and
Those in Office under International Law

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Introduction:

The development and
implementation of the human and international crimes law is neither enforced
properly nor is it considered as the most effective in the procedures and
mechanisms of international law. The international law is made for imposing the
obligations on different states of the world for the prosecution of criminals
that are present in their territory. Similarly, the human rights law also
incorporates the right for the people who violate the human rights law in
various countries. However, previous studies conducted to check the affectivity
of international law and human rights law have argued that these laws often
fail on various occasions.

The domestic laws
implemented in many countries are also not including many relevant
international human rights in them. International crimes are done by many
people in the country including the state agent, who are regularly involved in
breaching of the state policy because they have the right of doing them
according to international law. The government officials also is unable to
enforce the international law because they find it hard to change the domestic
law already present in the country.

This article will try
to address the obstacles faced by the countries in the implementation of the
international law, and the problems faced by them in changing the domestic law
according to the international standards. Additionally, this article also
present critical evaluation of the immunity in the former heads of the States
that lie under the umbrella of International law. The uncertainty also lies in
the implementation of the international law, and how far the immunities are
applicable in the domestic law operated in the country.

Therefore, this
article will examine the rationale for the conferment of different types of immunity
including the scope, and critical analysis will be presented to determine
whether the immunities remain applicable in process of criminal related
activities. It is believed that two types of immunity exists in the immunity
ratione personae. However, the articles represents the types of immunity
according to the former head of states in different countries. The following
sections in the assignment present the critical evaluation of the immunity of
the former heads present in various countries that come under international
law.

Critical analysis of International law in heads of states:

Some people in all the
countries enjoy the jurisdiction of the other states because of the position
they hold in the country. These people are known as the status immunity or
immunity ratione personae. This position is given to those people that come
under the international law, and are present on the higher position.
Additionally, this position is given to only those people who are responsible
for handling the international relations of the country.1

It is believed that
all the judges in the Pinochet agreed that if Pinochet had remained the head of
state then he would have been immune. Immunity is the condition in which the
head of state leaves the office for committing international crimes and critical
analysis of those crimes will be present in this article in the context of
international law.

Head of state:

According to the
article presented by Bassiouni the first person to whom the immunity ratione
personae applies is the one who is present on the highest position in the
state.2
However, it is not necessary that head of the state is the one and only person
in the state. The person can also be one of the most influential personality of
the state, who may be the symbol of sovereignty in the state. The head of the
state enjoys the most number of benefits that come from the international laws,
and represents the total organism present in the political system of the
country.1

Immunity in the criminal perspective for the international crimes:

One point is clear
that senior officials in the country are hindered for the exercises carried out
by them in the international functions, if they are arrested then detained
while carrying out those activities in the foreign state. Due to this reason,
this type of immunity, by different authors is rated as prohibiting because it
gives growth to the criminal activities on the international level.3 According to the research article
presented by Crook the absolute nature of the immunity in the context of
ratione personae means that it prohibits exercising the criminal jurisdiction
not only on the official capacity but in the private acts.4

Therefore, the
arguments presented above can be concluded by saying that immunity targets to
stop the criminal activities that are carried out on the official level, lying
under the international criminal activities. Additionally, some of the authors
say that rationale for the immunity can be explained by saying that it is the
act that is either conducted by the head of state in the office or before the
entry to the office.5 However, the book of Smith argues
that what the most important is not the alleged activity that was carried out,
but whether the steps taken in the foreign state were legal or not according to
international laws.6
This argument is supported by Hazel also who argues that attempt made for
arresting and prosecuting the officials is purely related to violation of
immunity.7

The attempts made for
the prosecution of the officials is rated as the immunity violation whilst the
invitations by the foreign state for testifying or providing the information
voluntarily do not act. Therefore, the attempts made for arresting or
prosecuting these head of the states or officials will be the immunity
violation. However, some of the authors argue that this type of immunity at
least form some of the part only remains in action when the person remains in
the office.8 For example, in the Arrest Warrant case, the Foreign Ministers were
held for the immunity ratione personae by the ICJ. Moreover, they were further
held due to the absolute nature present in the immunity.

Immunities and International crimes:

Since the
international crimes are dependent on the changing nature of personalities,
therefore, the variety of crimes is also increasing. Due to the changing nature
of the criminal activities, it has become difficult for the law creators to
create the laws that will run in all the countries and are able to address all
the crimes.9
Fuelled by many decisions, and dealing with the issues gives rise to changing
the international laws time to time, however, the position for the personal
immunities is reasonably clear.

When the head of state
belonging to the government official and holding the personal immunity is
present in the office, will be immune from the foreign national court’s
jurisdiction even when he allegedly committed the international crime.10
The above mentioned rule was recently accepted and implied by the International
Court of Justice (ICJ), and by the House of Lords and Belgian Court of
Cassation. Although some articles have tried to rationalize the presented rule,
the arguments don’t go in same direction. Simbeye has argued that when
competing values are noted, it is appropriate that competing values should be
attached with the immunity of the high state officials on the one hand and with
the accountability on the other.11

When prosecuting a
head of state, some other articles have also presented their arguments. Some
authors were found arguing that limited exception should be presented in the
rule. However, in the view of decisions made by the court, the dissenting
opinions do not reflect the customer international law. According to the
research article presented by Klabbers says that ICJ is the responsible party
for changing and holding the authority of functional immunities, however, the
rules made by them are questionable, and needs consideration.12
Therefore, it is important to understand the reasons behind the arguments that
are presented by various scholars.

The research of Du
Plessis says that silence of ICJ on a narrow exception to the rule concerning
international crimes has made the decision of national and international courts
ambiguous.13 Therefore, to solve this problem,
ICJ needs to solve the factors that are impacting on the validity and
reliability of international law. Additionally, the laws developed on the
global scale are heavily criticized by many scholars. One of the article says
that the decision leaves the door open for the additional requirements and the
possibilities for classifying the international crimes under the private acts.3

The rules covering the
international criminal activities must be revised for making them more
effective, since many scholars have criticized them for not following the rules
appropriately. Although, the solutions to many problems in context of
international crimes are present in the international crimes law, the big area
in the law still remains ambiguous, and difficult to understand.14
The solutions to various circumstances have been rated as the poor by some
scholars. This section of the literature review will present the critical
review of the poor infrastructure in the International crimes law, based on the
articles in the context.

The international
crimes are not committed by the criminals are not according to the presented
laws, therefore, it becomes difficult for the law enforcing agencies to decide
the punishment, since the immunities are not explained carefully.13 However, the article presented by Tladi states
that international laws have ignored the fact that most of the international
crimes are most probably following the exercise of the state’s apparatus,
thereby unintentionally, they are acting as the public one.15

Critical review of article 27 of the Rome statute:

The article 27 of the international
law presents a clear statement that whatever the capacity of the head of the
state is, the criminal law will be applied with full authority to the respected
personnel. Therefore, the international law is same for all the people in the world,
and does not provide any privilege to the states head.11 Although article 27 has tried to remove the
ICC jurisdiction from the international law, the articles argue that it has
failed on various occasions.

The first issue that
arise from the article 27 is the lack of applicability in the world. According
to the book written by Bottigliero the first issue that
arises from the article 27 is that the State Parties nationals are bounded by
this article, however, the position of nonState parties is less certain.16
The above argument is supported by the study of Tladi too who argues that non-State
parties can be subjected to the court jurisdictions by many ways.15 The Article
12 of the Rome Statute was also found stating that Court can exercise the jurisdiction
over such nationals no matter those nationals are present in which country.

Furthermore, if the criminals have
committed the crime on the other non-state party’s territory, the court has
full power, and it can practise the jurisdiction by taking the help of acquiescence.
The research article presented by Murphy says that Security Council which is
following Chapter VII presented in UN charter can also refer to the ICC
prosecutor, because in that it appears that crimes committed on international
level can be solved by following the guidelines.17
The above statement is considered as controversial in some articles, because the
non-state parties argue that international law presented prohibits the
imposition of the treaty obligations on the third states.5 Additionally,
the article presented by Allen also says that this statute strip off the non-State
Parties nationals from the international immunities before even the court goes
further into investigation.18
The articles 12 and 13(b) when studied were also found arguing with the statement.

Now the application of the Article 27 to
the non-State parties will be examined. The two points are needed to be noted. First,
the position of the individuals with the court is needed to be examined; however,
this document is not concerned with the immunities, which are still enjoyed by
the individuals in the foreign state. Additionally, in the previous statements
it was found that international law currently being operated is inapplicable to
the cases that involve international crimes. Therefore, it can be said that article
27 is only relevant to the non-state national parties since it aims to remove
the personal immunities.

Application of Article 27 to Non-State Party Nationals:

The principle related
to the pacta tertiis nec nocent nec
prosunt is indicated in the Article 34 of the Vienna Convention presented for
Law of Treaties, which is also considered fundamental technique in the treaty
law. When the article is observed first, the statement presented by Talmon looks
valid, who says that court can legitimately practice the jurisdiction over the
non-State parties, and however, the practice is limited to perform some actions
only.19
The statement was also found in the research article of Murphy who was found saying
that Rome Statute, which is the multilateral treaty, is able to abrogate the
international law treaty

jurisdiction over non­State  Party nationals
in  certain circumstances,  one  would  not expect
the  Rome  Statute, a multilateral treaty, to be able to
abrogate  the international law immunities accruing to officials of States
not party to the Statute. Non­States Parties have done nothing
to waive their immunities. However, as with many legal
matters, delving more deeply reveals a number of underlying issues.

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