Immunity from prosecution is a doctrine of international law that allows an accused to avoid prosecution for criminal offences. Immunities are of two types. The first is functional immunity, or immunity ratione materiae. This is an immunity granted to people who perform certain functions of state. The second is personal immunity, or immunity ratione personae. This is an immunity granted to certain officials because of the office they hold, rather than in relation to the act they have committed.

Functional immunity

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 unlimited in time. This type of immunity is based on respect for sovereign equality. Customary international law Unwritten law applied to the behaviour of nations. ...

Recent developments in international law show that this type of immunity, whilst it may be available as a defence to prosecution for local or domestic crimes or civil liability, is not a defence to an international crime. (International crimes include crimes against humanity, war crimes, and genocide). This has developed in the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia, particularly in the Karadzic, Milosevic, and Furundzija cases. This was also the agreed position as between the parties in their pleadings in the Arrest Warrant Case of the International Court of Justice, (Congo v Belgium) (2002) ICJ Rep. This article is in need of attention. ... In the context of war, a war crime is a punishable offense under International Law, for violations of the laws of war by any person or persons, military or civilian. ... Look up Genocide in Wiktionary, the free dictionary. ... The International Court of Justice (known colloquially as the World Court or ICJ; French: ) is the primary judicial organ of the United Nations. ...

The reasons commonly given for why this immunity is not available as a defence to international crimes is straight forward: (1) that is genocide, war crimes and crimes against humanity are not acts of state. Criminal acts of the type in question are committed by human actors, not states; and (2) we cannot allow the jus cogens nature of international crimes, i.e. the fact that they are non-derogable norms, to be eroded by immunities. A peremptory norm (also called jus cogens, Latin for compelling law) is a fundamental principle of international law considered to have acceptance among the international community of states as a whole. ...

Personal immunity

This type of immunity arises from customary international law and confers immunity on people holding a particular office. 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. Customary international law Unwritten law applied to the behaviour of nations. ... Fidel Alejandro Castro Ruz (born on August 13, 1926) is the current President of Cuba but on indefinite medical hiatus. ... Jiāng Zémín (Traditional Chinese: 江澤民, Simplified Chinese: 江泽民, Hanyu Pinyin: Jiāng Zémín, Wade-Giles: Chiang Tse-min, Cantonese (Jyutping): gong1 zaak6 man4) (born August 17, 1926) was the core of the third generation of Communist Party of China leaders, serving as General Secretary of the Communist...

However, the moment accused leaves office, they are liable to be prosecuted for crimes committed whilst in office (subject to jurisdictional requirements and local law): Pinochet. Hence personal immunity it is the opposite of functional immunity - it is an immunity for all acts, but for a limited time, as opposed to immunity for some acts but for an unlimited time.

This type of immunity is not for the official’s personal benefit but is based on the need for states to function effectively and hence not be deprived of their most important officials: Arrest Warrant Case.

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 immunity to resist the charges against him, even though he was an incumbent Head of State at the time of his indictment. However, this reasoning was based on the construction of the court's constituent statute, that dealt with the matter of indicting state officials. In any case, Taylor had ceased to be an incumbent Head of State by the time of the court's decision so the arresting authorities would have been free to issue a fresh warrant had the initial warrant been overturned. Nevertheless, this decision may signal a changing direction in international law on this issue. The Special Court for Sierra Leone is an independent judicial body set up to try those who bear greatest responsibility for the war crimes and crimes against humanity committed in Sierra Leone after 30 November 1996 during the Sierra Leone Civil War. ... For other persons named Charles Taylor, see Charles Taylor (disambiguation). ...

Cases of overlap

What happens when a person enjoying a personal immunity commits a criminal act that is also covered by functional immunity? When that person leaves office, the personal immunity, as usual, is removed. However, the immunity attaching to acts of state continues. This is what happened in the Pinochet case before the House of Lords. Senator Pinochet was only able to be extradited to face charges that were not caught by the functional immunity (and also met the separate tests for extradition under English law).

See also

• Command responsibility
• International law

Peace Palace in The Hague Command responsibility, sometimes referred to as the Yamashita standard, or the Medina standard is the doctrine of hierarchical accountability in cases of war crimes. ... International law (also called public international law to distinguish from private international law, i. ...

References

Cases:

• In Re Pinochet (1999) 93 AJIL 690
• R v Bow Street Magistrates, ex parte Pinochet (Nos 1 & 3), [2000] 1 AC 147
• Arrest Warrant of 11 April 2000 Case (Democratic Republic of the Congo v Belgium), ICJ Rep, 2002

Commentary:

• Akande, “International Law Immunities and the International Criminal Court”, (2004) 98 AJIL 407
• Cassese, International Criminal Law (OUP, Oxford 2003), Chapter 14
• Cassese, “When May Senior State Officials be Tried for International Crimes? Some Comments on the Congo v. Belgium Case”, (2002) 13 EJIL 853
• Fox, The Law of State Immunity, (OUP, Oxford 2003), Chapter 12
• Warbrick, “Immunity and International Crimes in English Law”, (2004) 53 ICLQ 769