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Immunity Of State Officials From Foreign Criminal Jurisdiction

George W. Bush said:
War crimes will be prosecuted. War criminals will be punished. And it will be no defense to say, 'I was just following orders'.

We live in a world of nuclear weapons, armed conflicts, extremist groups, and war crimes. In such a world, accountability cannot be overshadowed by immunity, and immunity cannot be mistaken for impunity.

The numerous wars over the past century called for trials of those responsible for them, and those who committed war-related crimes. Following World War II, the International Military Tribunal (IMT) was set up in Nuremberg, Germany, to prosecute and punish the major war criminals of the European Axis. Consequently, the Nuremberg Charter was signed which, among other things, provided that the IMT had the authority to punish those who committed Crimes Against Peace, War Crimes, and Crimes Against Humanity.
  The Nuremberg Tribunal also established that the immunity conferred to State officials under certain circumstances does not apply to acts which are considered as criminal by international law.

To deliberate upon the validity and extent of the immunity of State officials from foreign criminal courts, it is imperative to understand when these immunities can be enjoyed by State officials and why it is sometimes desirable. Immunities granted to State officials can be categorized into:
  1. Immunity ratione mateirae (immunity enjoyed by any State official when performing official acts), and
  2. Immunity ratione personae (immunity which only holders of high office enjoy for any acts).
While the former is related to the functions of the official, the latter is attached to the position of the official. Both of the above mentioned immunities find their validity in the measure of ensuring effective performance of such officials in carrying out the functions on behalf of their sovereign States, which itself finds its basis in the principle of par in parem non habet imperium (equals have no sovereignty over each other), meaning that one sovereign state cannot exercise jurisdiction over another sovereign state.

The extent to which these immunities apply, and whether they should apply to such extent, needs to be analyzed by referring to how the questions regarding immunity have been approached and decided on by Courts in certain circumstances involving State officials.

The nature of immunity ratione personae is absolute, meaning that there is prohibition on exercise of criminal jurisdiction for acts done by such officials not only in their official capacity but also in their personal capacity. However, it is noteworthy that such type of immunity exists only as long as the individual holds the office.

When talking about the absolute nature of the immunity enjoyed by State officials, one has to refer to the Arrest Warrant case (Democratic Republic of the Congo v. Belgium) of 2002, in which the Court opined that under customary international law, the immunities granted to Ministers for Foreign Affairs are not for their personal benefit, but to ensure that the performance of their duties is not hindered by any act of another State.

Thus, a Minister of Foreign Affairs enjoys full immunity from criminal jurisdiction and inviolability. Additionally the Court also stated that it was unable to deduce that under customary international law, there exists any exception to the rule of immunity to Ministers of Foreign Affairs where they are suspected of having committed war crimes or crimes against humanity.

But in January 2021, the Federal Court of Justice, which is the highest criminal court in Germany, held that State officials, at least to the extent that they hold subordinate positions, do not enjoy functional immunity under customary international law in foreign criminal proceedings for war crimes or certain other crimes that are of concern to the international community as a whole.

The Court relied on the Nuremberg Principles, codified by the International Law Commission, which laid down that functional immunity cannot be used as a defense in cases of crimes against peace, war crimes, or crimes against humanity, which constitute crime under international law.

Another important case in this regard is The Prosecutor v. Tihomir Blaskic. In this case, the International Criminal Tribunal for the former Yugoslavia (ICTY) charged Blaskic, who was the Commander of the Croatian forces in Central Bosnia, with war crimes and crimes against humanity that he was responsible for in Bosnia, and sentenced him to 9 years in prison.

Looking at the above cases, it is clear that the seemingly absolute nature of immunity granted to State officials from foreign criminal jurisdiction, is in fact, not absolute. Accountability comes with the actions taken by a person.

Any individual, regardless of their position should not, by reason of moral, justice and conscience, be given immunity if they commit international crimes. The powers they enjoy by the virtue of their position should be reasonably limited so that those in power measure the consequences of their actions before they take irreversible decisions.

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