The Question of the immunity of state officials
The development of substantive norms of international human rights and international criminal law has not been matched by the development of mechanisms and procedures for their enforcement. The primary methods of judicial enforcement envisaged by international law are the domestic courts of the state where the human rights violation or international crime occurred and the courts of the state responsible for that violation. To this end, international law imposes obligations on states to prosecute those who have committed international crimes within their territory. Likewise human rights law includes a right to a remedy or to reparation provided by the state that has violated the substantive human right. However, these methods of enforcement of human rights and international criminal law often fail. Domestic law may not incorporate the relevant international human rights norm. International crimes are often committed by state agents as part of state policy, and so governments do not routinely prosecute their own officials engaged in such action (though, as has happened in Latin America, changes of government may bring a change of policy and prosecutions for past official conduct).
The development of international human rights law and international criminal law has triggered the question whether states and their officials can still shield themselves from foreign jurisdiction by invoking international immunity rules when human rights issues are involved. The Pinochet case was the first case that put this issue in the limelight of international attention. Since then, the question has been put to several domestic and international courts, and has engaged the minds of scholars and politicians around the world.
Immunity Ratione Personae
International law confers on certain state officials immunities that attach to the office or status of the official. These immunities, which are conferred only as long as the official remains in office, are usually described as ‘personal immunity’ or ‘immunity ratione personae’. It has long been clear that under customary international law the Head of State and diplomats accredited to a foreign state possess such immunities from the jurisdiction of foreign states. In addition, treaties confer similar immunities on diplomats, representatives of states to international organizations, and other officials on special mission in foreign states.
The Key Issues:
- The scope of immunity and the exceptions to immunity
- Need to seek a balance between the need to protect immunity and preventing it for more serious crimes
- Therefore need to decide the extent of crimes that immunity protects a state official
- The approach that states take on the subject of immunity differs significantly
- Ways to improve the International Law Commission that has attempted to deal with the problem.
- Would it be advisable to focus on the act rather than the person?
- In recent years, the Pinochet cases, the Arrest Warrant case and the Djibouti v. France case have drawn particular interest to this area of the law, as well as to the need to address any uncertainty relating to the immunity rules applicable particularly in respect of those in leadership positions who may be responsible for serious crimes
What has already been done:
- Meeting of the Sixth Committee (Legal) reporting on the International Law Commission that includes the question of the immunity of state officials. (see link)
- The Pinochet Case (1998) – the first case that addressed the issue.
- Extract from BBC article:
“It is easy to forget that round one went to General Pinochet. In October 1998, the Lord Chief Justice, Lord Bingham, ruled that he was “entitled to immunity as a former sovereign from the criminal and civil process of the English courts”. In his view, and that of the two judges sitting with him in the High Court, “a former head of state is clearly entitled to immunity in relation to criminal acts performed in the course of exercising public functions”.”
- State Immunity acts globally:
- UK State Immunities Act 1978 – The British courts have specific guidelines to follow in regard to immunities to state officials
- Other Commonwealth countries, such as Canada, Australia, South Africa, Pakistan, and Singapore have adopted a similar approach based on the model of the State Immunities Act.
- USA: Foreign Sovereign Immunities Act 1976
- 2004 UN Convention on the Jurisdictional Immunities of States and Their Properties 2004
Pinochet case: http://www.ejil.org/pdfs/10/2/581.pdf
General Assembly: http://www.refworld.org/pdfid/48abd597d.pdf
The Question of Western Sahara
The Western Sahara is a disputed territory claimed both by the Kingdom of Morocco and the Polisario Front (self-proclaimed the Sahrawi Arab Democratic Republic). So, for now, it is only necessary to briefly outline the context. In 1975 Morocco invaded Western Sahara to prevent Spain — the colonial power since 1885 — from organizing a UN-mandated referendum on independence. Since then, the Western Saharan independence movement, the Polisario Front (founded in 1973), has challenged Morocco’s attempt to annex the territory by force. The first fifteen years of the conflict witnessed a low-intensity guerrilla war between Western backed Moroccan forces and the Algerian supported guerrillas of Polisario. Since a ceasefire was declared in 1991, a UN mission in Western Sahara has been on the ground, charged with the task of organizing a referendum on independence. Nearly seventeen years later – to make a long story short – Morocco still refuses to allow such a vote.
The Key Issues:
- The Western Sahara conflict is often described as a case of competing sovereignties. In 2007, for example, the UN Secretary-General made this ‘observation’, which was subsequently removed from the record:
- ‘If the negotiations [in Manhasset] are to lead to a positive outcome, both parties must recognize that the question of sovereignty is, and always has been, the main stumbling block in this dispute, and that it is in this highly sensitive area that a solution will need to be found’.
- The problem of refugees suffering in the Sahara desert in refugee camps. Concern for the long term consequences for Saharans. Failure to protect the Saharan people.
- Other countries, specifically Morocco, using the Western Sahara for their own economic and political interests.
What already has been done:
- In order to resolve the sovereignty issue, the UN has attempted to hold a referendum through the mission United Nations Mission for the Referendum in Western Sahara (MINURSO), and is holding direct talks between the Kingdom of Morocco and the Polisario Front. The UN recognizes neither Moroccan nor SADR sovereignty over Western Sahara.
- States supporting Moroccan claims of Western Sahara include:
- States supporting SADR claims to Western Sahara include:
- South Africa
- The UN does not recognize Moroccan claims, as the Western Sahara remains in its List of Non-Self-Governing Territories since 1963. The Security Council had argued for direct negotiations between Morocco and the Polisario Front. It had approved more than 100 resolutions supporting the right of Self-determination of the Sahrawi people.
Already made UN resolutions commentary: http://www.jstor.org/stable/40282507?seq=1#page_scan_tab_contents