This chapter considers the immunities of individuals, including the head of State, head of government, the Foreign Minister, officials when on special mission, and other personnel in the service of the State to whom immunity is accorded.1 Immunity based on the nature of the act is sometimes called ratione materiae as compared to ratione personae based on the status of the State that performs the act. But, given that, unlike the individual who may cease to serve, lapse of time is generally irrelevant to the State (who under the restrictive doctrine remains a State throughout), in order to avoid confusion these terms are confined to immunity enjoyed by State officials.2
As noted in Chapter 4, no State may exercise the criminal jurisdiction of its courts over another State. Instead, State responsibility is the method by which one State may seek reparation for the commission of internationally wrongful acts by another State. As a consequence, individual officials who performed the act for which reparation is sought have traditionally been immune from the jurisdiction of foreign courts. This classic rule is under pressure from efforts to remove immunity in cases of grave violations of human rights, most vividly represented by the growth of international criminal law and the establishment of international criminal courts and tribunals determined to end impunity for international crimes, regardless of the official status of the perpetrator.
While the Third Model’s emphasis on the distinction between procedure and substance has rendered it more difficult to set aside State immunity for human rights violations (see Chapter 2), the development of the law of immunity as it relates to individuals has been following a different trajectory, at least as regards immunity ratione materiae. The ICJ implicitly acknowledged this in the Jurisdictional Immunities Judgment:
In reaching that conclusion [that there is State immunity for grave violations of human rights], the Court must emphasize that it is addressing only the immunity of the State itself from the jurisdiction of the courts of other States; the question of whether, and if so to what extent, immunity might apply in criminal proceedings against an official of the State is not in issue in the present case.3
The developments covered in this chapter are also referred to in Chapters 4 and 10.
As Watts pointed out in his monograph on the subject, the category of head of State is likely at any one time, even taking account of those countries where change of regime is frequent, to encompass no more than some 500 individuals.4 Yet the notoriety and odium to which the position exposes the individual has given rise to challenge of the immunities which they enjoy under classical international law, particularly in respect of immunity from criminal proceedings for international crimes. There have been unsuccessful attempts to institute criminal proceedings against incumbent heads of State in national courts—President Kabila (Congo), Gaddafi (Libya), Habré (Senegal), and Castro (Cuba).5 More recently, proceedings have been brought at the International Criminal Court (ICC) against President Al-Bashir (Sudan), but the arrest warrant remains unenforced; ICC proceedings against Gaddafi were rendered moot by his death in 2012.
The immunity of a head of State divides into immunity in the public capacity or ‘as the State’ and personal immunity. Article 2(1)(b)(i) and (iv) of UNCSI includes heads of State within the definition of the State. By doing so it extends to such persons in the public capacity the immunities which the State itself enjoys under the Convention.
The evolution of the immunity of the State from the personal immunities of the monarch or other sovereign have been described in Chapter 10. In early proposals for legislation, such as the Institut de Droit International’s Resolution of 1891 and the Harvard Draft Convention,6 the immunity of heads of State was included in the treatment of States. Neither the ECSI nor the US FSIA makes any express reference to the head of State. The Canadian, Pakistan, Singapore, and South African Acts do make such reference; they define the State as including the head of State and extend to him acting as such in a public capacity the immunities of the State. The UK SIA (sections 14(1)(a) and 20(5)) and the Australian Foreign Sovereign Immunities Act (sections 3(3)(b) and 56(3)) make similar provision as regards the head of State ‘in his public capacity’. However, when he is acting otherwise, these enactments treat him in the same way as the head of a diplomatic mission, subject to ‘any necessary modifications’. The Special Rapporteur of the ILC in his work on the Jurisdictional Immunities of States and their Property initially proposed a draft on the same lines as the UK and Australian statutes. But when it provoked much criticism from the other members of the Commission, the ILC deleted the phrase from the definition of ‘State’, leaving it covered by the expression ‘various organs of government’. It also deleted the Draft Article 25, and instead Article 3(1)(b) of UNCSI contains the saving clause:7
UN Convention
Article 3(1)(b). The present articles are likewise without prejudice to privileges and immunities accorded under international law to Heads of State ratione personae.
ILC Commentary to Article 3
Paragraph 2
(6) Paragraph [1(b)] is designed to include an express reference to the immunities extended under existing international law to foreign sovereigns or other heads of State in their private capacities, ratione personae. Jurisdictional immunities of States in respect of sovereigns or other heads of State acting as State organs or State representatives are dealt with under article 2. Article 2, paragraph 1(b)(i) and (v) covers the various organs of the Government of a State and State representatives, including heads of State, irrespective of the systems of government. The reservation of article 3, paragraph 1(b), therefore refers exclusively to the private acts or personal immunities and privileges recognized and accorded in the practice of States, without any suggestion that their status should in any way be affected by the present articles. The existing customary law is left untouched.
In 2001 in Vancouver a Resolution drafted by a committee of the Institut de Droit International on immunities of heads of State and government, serving and retired, proposed a restrictive regime, confining immunities to the performance of official functions and official visits abroad. In the absence of any more authoritative source, the articles of this Resolution of the Institut may be used as a guide to the relevant rule and an aid to the discussion concerning the immunities of a head of State. But it is to be recognized that in some respects the 2001 Vancouver Resolution may not be in line with emerging State practice—for instance it provides that the functions of a former head of State protected by immunity do not include ‘participation in the commission of international crimes’.8
The functions of a head of State may be purely ceremonial, constitutional, or political, or they may combine all three. The disposition of powers within a State is very varied, depending on its own constitution, laws, and practices.9 The concept of head of State may be extended to religious or spiritual leaders or rulers of particular peoples; immunity has been conferred on the Pope ‘as head of the Vatican State’ rather than as head of the Catholic church.10
The ILC Commentary to Article 3 UNCSI provides:
(7) Similarly, the present articles do not prejudge the extent of immunities granted by States to heads of Government and ministers for foreign affairs. Those persons are, however, not expressly included in paragraph 2, since it would be difficult to prepare an exhaustive list, and any enumeration of such persons would moreover raise the issues of the basis and of the extent of the jurisdictional immunity exercised by such persons. A proposal was made at one stage to add, after ‘heads of State’ in paragraph 2, ‘heads of government and ministers for foreign affairs’, but was not accepted by the Commission.
A head of State may be separate or combined with a head of government;11 and the holder of both of these offices, by reason of the ceremonial or political functions which they exercise on behalf of the State, are treated as the State with entitlement to immunity. The Institut’s 2001 Vancouver Resolution equated the position of a head of government to that of a head of State.12 The term head of State can generally be read as including head of government throughout this chapter unless otherwise indicated.
The US courts, on the suggestion of immunity from the State Department, have accorded immunity in proceedings relating to the UK to both its head of State, the Queen, and its Prime Minister as head of government.13
Minister for Foreign Affairs
Under the VCLT, Article 7(2), the Minister for Foreign Affairs is considered to represent his or her State and to have authority to perform all acts relating to a treaty without production of full powers, and other international conventions in conferring immunities specifically mention the Minister for Foreign Affairs. The ICJ confirmed this special position in the Arrest Warrant Judgment, declaring that: ‘a Minister for Foreign Affairs, responsible for the conduct of his or her State’s relations with all other States, occupies a position such that, like the Head of State or the Head of Government, he or she is recognised under international law as representative of the State solely by virtue of his or her office. He or she does not have to present letters of credence’.14
The consequence of such status was, on the facts before the Court, to confer personal inviolability and immunity from criminal jurisdiction, with the Court stating that no distinction can be drawn between acts performed by a serving minister for foreign affairs in an ‘official’ capacity, and those claimed to have been performed in a ‘private capacity’ (see further below). For other ministers of central government, see below on ‘Categories of high-ranking officials’.
ILC Commentary to Article 3 states:
(7) The present draft articles do not prejudge the extent of immunities granted by States to foreign sovereigns or other heads of State, their families or household staff which may also, in practice, cover other members of their entourage.
Article 5 of the Institut’s 2001 Vancouver Resolution states with regard to serving Heads of State:
Neither family members nor members of the suite of the heads of State benefit from immunity before the authorities of a foreign State, unless afforded as a matter of comity. This is without prejudice to any immunities they may enjoy in another capacity, particularly as a member of a special mission, while accompanying a Head of State abroad.
The immediate family members of a serving head of State have sometimes been included within head of State status. Accordingly, a US court, on a submission of the State Department, ruled Charles, Prince of Wales, as immune as the son of the ruling monarch and as the heir apparent to the UK throne.15 The UK SIA, section 20(1), extends to those members of the family of a sovereign or other head of State forming part of his household,16 and to his private servants, the immunities enjoyed under the Vienna Convention on Diplomatic Relations 1961 (VCDR) by members of the family of the head of a diplomatic mission. Whether or not international law requires the extension of immunity to members of the family of a head of State, it would seem that on the occasion of an official visit a receiving State may at its discretion extend immunities to members of the family accompanying the head and even to his or her immediate retinue for the duration of the visit. Such extension, however, must be for the purpose of ensuring no disruption of the visit and should not, save for the period of the visit, deny to litigants their recourse to national proceedings.
The recognition of a head of State as the prime representative of his State in international law provides the justification for affording the holder of that office immunities before the national courts of other States.17 Although many heads of State historically enjoyed criminal and civil immunity under their own national laws, and some still do, this exemption derives from the constitutional structure of a particular State, and has no relevance for the immunities enjoyed before the courts of another State. As with State immunity, it is the independence of the State and the protection of the ability of its prime representative to carry out his international functions which prevents one State from exercising jurisdiction over the head of another independent State without the latter’s consent. This is a matter of international law not merely comity, granted by reason of his status rather than the performance of official functions. Questions of personal inviolability and immunities of a head of State most often arise when the individual office-holder is present in the territory of the forum State. The occasion of an official visit peculiarly celebrates the representation of a State in the person of the visiting head, but, a State which does not recognize another State or its head is under no obligation to consent to such a visit. In addition, the ECJ held in 2012 that a State may refuse access to its territory by a foreign head of State, thereby limiting his freedom of movement; the same limitation could not be imposed on ordinary EU citizens.18
The head of State enjoys in international law the capacity to represent and act for the State.19 In the Nuclear Tests cases, the ICJ construed statements made at a Press Conference by the President of France that ‘this round of atmospheric tests would be the last’ as constituting a unilateral declaration binding the French Republic.20 Moreover, as the Court pointed out in the Bosnia Genocide case,21 the 1969 VCLT recognizes that heads of State, heads of government, and Foreign Ministers can without showing authority make or terminate a treaty on behalf of the State. Article 7(2) of the Vienna Convention provides:
In virtue of these functions and without having to produce full powers, the following are considered as representing their State
a) Heads of State, Heads of Government and Ministers for Foreign Affairs for the purpose of performing all acts relating to a treaty.22
This paragraph imputing full powers (extended by the ICJ in Congo v Rwanda to include ‘the performance on behalf of the State, of unilateral acts having the force of international commitments’),23 is to be contrasted with subparagraphs (b) and (c) of Article 7, where limited powers are imputed to heads of missions for the purposes of adopting the text of a treaty between the accrediting State and the State to which they are accredited.24 VCLT, Article 67(2), also provides that notice given by a head of State terminates a treaty on behalf of a State.25
Further support for the primacy of the position of the head of State as representing the State is to be found in treaty practice, such as the distinction between the privileges and immunities enjoyed by a head of State from that of diplomatic agents or other high ranking officials (1969 Convention on Special Missions and the 1972 Convention on Internationally Protected Persons).26
Both international law and the internal law of States are relevant to the determination of the immunities of a head of State. International law recognizes the office as an attribute of Statehood, and consequently as an office entitled to the respect of other States. It is a precondition for the recognition of a head of State that the entity that the representative comes from meets the international legal criteria for Statehood.
International law generally treats as the head of State the individual so identified by the government in effective control of the territory of the State, and makes no separate enquiry as to the legitimacy of that individual’s position.27 However, recent developments indicate that international law may set some minimum requirements of good governance, in relation to both the appointment and the performance of the duties of a head of State. An appointment in accordance with the clearly expressed vote of the population where elections have been held may be one such requirement; non-participation in the commission of international crimes may be another. Thus the Security Council held the removal of the elected President of Haiti, Aristide, by a military coup to be a threat to international peace and security, and a UN force led by the US assisted in his restoration to power.28 Nonetheless, this precedent, along with the forcible removal of General Noriega from Panama, should be treated with caution, since it may more readily be explained by a desire to promote US security interests than by any general acceptance by States of the right of international law to require the appointment of a head of State to conform with international standards.29 The extent to which international law sets minimum requirements for the performance of a head of State remains controversial (see Immunity below). UNCSI provides no procedure for the recognition of States or heads of State.
In the process of identification of the head of State, both the internal law of the State appointing the head and of the State according him immunity may be relevant. International law leaves the identification of the office, the individual holder, his powers and functions, as with all internal organization of a State, as matters to be determined by the internal law of the State of which he or she is head.30 In Pinochet (No 3), Lord Hope did not consider that customary international law would confine the functions of a head of State to the ‘lowest common denominator’ but ‘the functions of the Head of State are those which his own State enables or requires him to perform in the exercise of government’.31
The respect accorded to such head of State by other States depends first on the recognition as a State of the entity which he heads; and secondly on the recognition or effective control of the government of that State. Thus the law of other States relating to recognition of States and governments may be relevant where a claim of immunity is made in proceedings before one of their national courts. The State granting immunity to the head of another State enjoys the freedom to confer or refuse diplomatic relations with any other State. It may do this either because it does not consider that the claimant State and its head satisfy the necessary criteria set by international law, or for political reasons. In general, a national court accords head of State status only to those persons so recognized by the government of the forum State, and where that government operates no policy of express recognition of governments, to the person(s) at the head of the government with whom the forum State has established ‘normal government to government’ dealings. For the position in the UK, see Chapter 7.32
Until very recent times a rule of absolute immunity for serving heads of State from civil and criminal proceedings in national courts has generally been observed in practice by all major jurisdictions.33 But there have been differences as to whether these immunities are special to the holder or merely aspects of State or diplomatic immunity. Historically, there was a tendency to equate the head of State with the position of the State of which he is head. As the head of State acts in a public capacity with effect on other jurisdictions, it seemed appropriate to accord the same privileges and immunities on the acts of a head of State as were accorded to the State itself. This approach is adopted by UNCSI by including the head of State in its definition of the State in Article 2(2). In doing so it has followed the practice of the Canadian, Pakistan, Singapore, and South African statutes which define the State as including the head of State and extend to him acting as such in a public capacity the immunities of the State. The UK SIA (sections 14(1)(a) and 20(5)) and the Australian Foreign Sovereign Immunities Act (sections 3(3)(b) and 56(3)) make similar provision as regards the head of State ‘in his public capacity’. However, when he is acting otherwise these enactments treat him in the same way as the head of a diplomatic mission, subject to ‘any necessary modifications’. Australia extends the privileges of the head of State in his public capacity to the head of State of a political subdivision in his public capacity (Australian FSIA, section 3(4)(b)).
UNCSI expressly excludes the immunities ratione personae of the head of State from its provisions and in this way differs from UK and US practice. The UK approach in the SIA is to treat the head of State when acting in a personal capacity in a similar manner to other high ranking officials of the State engaged in foreign relations, and to accord the same treatment as that which the head of a diplomatic mission receives.34 This approach has some advantages in that the immunities afforded to diplomats under the VCDR are reasonably well known; but it has disadvantages, as the Pinochet case showed, because the status of a head of State and the protection required differs from that of a diplomat, who may be required to reside for long periods in the forum State. It would therefore seem that a better approach is to treat the head of State and the head of government as unique, and to place these office-holders in a separate legal regime relating to their privileges and immunities. This is the approach which has been adopted by the US courts (more by omission than by deliberate policy of the FSIA). The position of a foreign head of State in US courts is governed by customary rules of international law,35 which are generally recognized and applied pursuant to suggestions of immunity from the State Department (see Chapter 8).
All three approaches (UNCSI, US, and UK) have to deal with certain common issues: first, whether the presence of the head of State within the territory of the forum State is a precondition of entitlement to immunities, or at least to a higher intensity of protection by the forum State; secondly, whether immunity from jurisdiction is subject to any exceptions; and thirdly, whether the immunity continues or is lost when the head of State vacates office.
These articles of the 2001 Vancouver Resolution of the Institut de droit international provide a useful reminder of the scope of any rule relating to the personal inviolability of serving and former heads of State, but cannot necessarily be accepted as reflecting accurately State practice:
Part I Serving Heads of State Article 1
When in the territory of a foreign State, the person of the head of State is inviolable. While there, he or she may not be placed under any form of arrest or detention. The Head of State shall be treated by the authorities with due respect and all reasonable steps shall be taken to prevent any infringement of his or her person, liberty or dignity.
Part II Former Heads of State Article 13
A former head of state enjoys no inviolability in the territory of a foreign State
Marshall CJ was the first to provide a coherent explanation of the operation of head of State immunity: in The Schooner Exchange36 he identified ‘exemption of the person of the sovereign from arrest or detention within a foreign territory’ as necessary ‘to impart full security’ to the foreign sovereign who is ‘not understood as intending to subject himself to a jurisdiction incompatible with his dignity, and the dignity of his nation’. The extent of the immunity to be afforded a head of State depends on the scope of a State’s obligation to treat other States and their leaders with respect and to take steps to prevent any attack on their dignity. There is no doubt that a State is obliged to take steps to prevent physical attacks on, or physical interference with, a foreign head of State when present in another State’s territory and equally to prevent acts in that territory preparatory to or directed at some form of physical attack against a head of State who is in his or her own country or in a third State. Consequently, the head of State, when outside the home State, is entitled to personal inviolability and freedom from arrest or detention equal or greater than that enjoyed by a diplomat. The status of a serving head of State, unlike that of the diplomat, is not dependent on exchange of credentials; the obligation to treat him with due respect and to prevent any attack on his person, freedom, or dignity arises on notice of his presence within the territory. Service of process on a head of State would seem to constitute a clear infringement of such inviolability.37
In the Djibouti v France Judgment, the ICJ applied the customary rule regarding diplomats, reflected in Article 29 of the VCDR, to the head of State.38 Indeed, the Canadian Minister of Foreign Affairs has observed that ‘even greater respect is owed to the visiting sovereign or head of State, since his own diplomatic envoys in the host State are clearly inferior to him’.39
Apart from physical attacks or interference, State practice is less certain as to the extent of the respect to be afforded to a head of State, with protection, where afforded, more attributable to courtesy or comity than obligation under international law.40 In the Djibouti v France case, the ICJ required proof of State responsibility for negative press reports.41 In the same case the ICJ found that a witness summons addressed to the President of Djibouti when he was present in France for an official visit was not a violation of his personal inviolability because it was ‘merely an invitation to testify which the Head of State could freely accept or decline’.42
When the sovereign is not in the forum State, observance of respect may be less demanding; the English court, in dismissing an application by a ruling head of State to redact and anonymize all reference to himself and to intimacies of his married life in proceedings between a former wife and a fortune-teller, adjusted the balance more favourably to the private litigant: ‘… the obligations of courtesy and comity which states undertake towards one another do not determine the obligations of their citizens … there is no supervening right in a foreign sovereign to complete protection irrespective of the interests of justice; but the courts will do all that can be done consonantly with the interests of justice to protect any third party, a foreign sovereign included, from the fallout of other people’s litigation’.43 The status of a head of State may even lead to restriction of his rights as compared to ordinary citizens. The ECJ held that Slovakia was justified in limiting the freedom of movement of the Hungarian head of State by refusing access to its territory to attend a ceremony that was being held on a controversial date in Slovakian history.44
The concept of dignity of a foreign head of State is elusive and with regard to publication of offensive material, a head of State ‘is entitled to expect no less protection from possible embarrassment than any other third party to litigation, but equally no more … There is no supervening right in a foreign sovereign to enjoy complete protection irrespective of the interests of justice’.45
By including the head of State when acting in a public capacity within the definition of the State (Article 2(1)(b)(i) and (iv)), UNCSI follows State practice so as to confer on a serving head of State acting in a public capacity the same immunity in respect of civil proceedings as the State enjoys.
Although in principle all jurisdictions recognize that a head of State is identified with the State so as to enjoy immunity for public acts performed in its name, the scope of this immunity has been variously interpreted. Claims brought against a head of State for acts done in his public capacity are claims against the State, and practice generally treats the State as the true defendant. But by reason of the physical person of a head of State some further degree of specificity is required and State practice reveals a degree of variation. Courts in France,46 Italy, and Switzerland47 have drawn a distinction between public and private acts, but have applied it chiefly as a limitation of immunity in respect of persons who had ceased to be heads of State. Thus a French court held immune from suit Emperor Maximilian who when in office was sued in respect of unpaid purchases of furniture, but a French court treated as not immune Isabella, the former Queen of Spain, in respect of a claim for jewellery purchased for her own use.48 If she could show the jewels were acquired ‘en sa qualité de personne souveraine et au compte du Trésor espagnol’, the State would then alone be liable. The Austrian Supreme court held a serving head of State to be immune from a paternity suit.49
In Italy, where a restrictive approach to State immunity was adopted from the outset, the Rome Court of Cassation allowed proceedings to continue against the Emperor of Austria brought against him prior to becoming sovereign and in respect of a private act.50
The UK and countries within the Commonwealth, perhaps by reason of their recognizing a hereditary monarch at its head, apply a stricter rule of immunity than the above-mentioned civil law countries are prepared to accord to their elected presidents.51 In the UK a wide immunity from civil jurisdiction was accorded a head of State in office making no distinction between acts in a public or private capacity. In Mighell v Sultan of Johore, the Sultan was held immune from a claim for breach of promise of marriage made while living in England under the assumed name of Albert Baker.52 The law may well in part have been influenced by the position of the English monarch who, until the enactment of the Crown Proceedings Act 1947, was immune from civil proceedings in the English court and also by the presence of many semi-independent rulers within the British Empire, in the management of whose affairs the courts deferred to the executive. Thus the English court, relying on the Duke of Brunswick case, stated in 1851: ‘An action cannot be maintained in an English court against a foreign potentate for anything done or omitted to be done by him in his public capacity as representative of the nation of which he is head’.53 Scrutton LJ, citing the case of Mighell v Sultan of Johore, stated: ‘I think it has been well settled first of all as to the sovereign that there are no limits to the immunity which he enjoys. His private character is equally free as his public character’.54
A statutory regime replaced the common law in 1978 dividing the immunities conferred into two categories. In its section 20, the UK SIA provides that a sovereign or other head of State, members of his family forming part of his household, and his private servants shall enjoy ‘subject to any necessary modifications’55 the same immunities as are enjoyed by the head of a diplomatic mission, his family and private servants under the VCDR. Restrictions as to residence, nationality, and immigration are expressly stated not to apply and, except as to value added tax and duties of custom and excise, exemption from taxation or immunity from taxation proceedings are not affected. In Harb v King Fahd Abdul Aziz a claim by an alleged wife of an incumbent head of State for maintenance was claimed to relate to his private life and not to be immune. The provisions of SIA, section 20 do not apply to the sovereign or head of State when acting in a public capacity which falls within the protection of Part I relating to the immunity of the State (section 20(5)); by section 14(1)(a) the sovereign or other head of State in his public capacity is included in the statutory definition of a State.
Until 1952 US courts adhered to the theory of absolute immunity, and applied the common law according absolute immunity to the head of State, just as it did to the State. Today US law recognizes that the position of a foreign head of State was ‘not affected by the passage of the FSIA’ and is governed by customary rules of international law which are recognized and applied in the US pursuant to suggestion of immunity from the State Department (see Chapters 8 and 10). Thus, under US law, recognized serving heads of State are probably immune from civil proceedings in respect of all acts whether of a public or private nature.56
In the light of this varied practice and in the absence of any specificity in UNCSI spelling out the manner in which State immunity is to be applied to heads of State, it would seem likely that the law and State practice in the forum State where the civil proceedings are instituted against a serving head of State will determine its precise scope. It would seem likely that all countries would bar the institution or prosecution of civil proceedings while a serving head of State is present in another State in a public capacity.
One scheme based on civil law practice is to be found in Professor Verhoeven’s proposals to the Institut de droit international which, with some amendments, were adopted in the 2001 Vancouver Resolution. This scheme affords a greater degree of immunity to the head of State in his public capacity while visiting another State than when he is at home but places no total bar on the institution of civil proceedings.
The 2001 Vancouver Resolution of the Institut de droit international (Ist Part I: Heads of State Article 3) reads:
In civil and administrative matters, the Head of State does not enjoy any immunity from jurisdiction before the courts of the foreign State, unless that suit relates to acts performed in the exercise of his official functions. Even in such case, the Head of State shall enjoy no immunity in respect of a counterclaim. Nonetheless, nothing shall be done by way of court proceedings with regard to the Head of State while he or she is in the territory of that State, in the exercise of official functions.
Article 4(1) deals with immunity from execution:
Property belonging personally to a head of State and located in the territory of a foreign State may not be subject to any measure of execution except to give effect to a final judgment, rendered against such head of State. In any event no measure of execution may be taken against such property when the head of state is present in the territory of the foreign State in the exercise of official functions.57
The 2001 Vancouver Resolution provides in Part II: Former Heads of State, Article 13(3)
Nor does [a former Head of State] enjoy immunity from jurisdiction in civil or administrative proceedings, except in respect of acts which are performed in the exercise of official functions and relate to the exercise thereof…
This formulation follows Article 39(2) of the VCDR which preserves the immunity of a diplomatic agent after he leaves office solely in respect of acts performed in the course of official functions. In the US, immunity may be extended to former heads of State on the suggestion of the State Department but they are likely to be held to enjoy no immunity in respect of acts of a private nature performed while in office; the tendency of US courts is to construe acts of theft, fraud, and corrupt practices as performed in a private capacity.58 The better view is that there is no immunity for acts performed in a personal capacity; whether immunity continues in respect of civil proceedings arising in respect of international crimes committed on State orders and in the course of official functions is a question closely linked with limitations on immunity of a former head of State from criminal proceedings for such crimes (discussed below).
In the Arrest Warrant Judgment the ICJ observed that a head of State enjoys ‘full immunity from criminal jurisdiction and inviolability’ which protects him or her ‘against any act of authority of another State which would hinder him or her in the performance of his or her duties’.59 In applying this principle in the Djibouti v France case in the context of witness summons issued against the President of Djibouti, the ICJ held that ‘the determining factor in assessing whether or not there has been an attack on the immunity of the Head of State lies in the subjection of the latter to a constraining act of authority’.60
The 2001 Vancouver Resolution (Part I: Heads of State Article 2) provides:
In criminal matters the Head of State shall enjoy immunity from jurisdiction before the courts of a foreign State for any crime he or she may have committed, regardless of its gravity.
A serving head of State enjoys the same absolute immunity from criminal proceedings as the State he represents, in respect of both acts performed in the course of official functions and private acts.61
This absolute rule of immunity is widely admitted and supported by State practice.62 The French Court of Cassation applied the rule to a serving head of State when it overruled a lower court and held Colonel Gaddafi as head of the Libyan Arab Jamahariya immune in respect of alleged complicity in acts of terrorism leading to murder and the destruction on 19 September 1999 of a civilian aircraft over the desert. The court stated: ‘la coutume internationale s’oppose à ce que les chefs d’États en exercice puissent, en l’absence de dispositions internationales contraires s’imposant aux parties concernées, faire l’objet de poursuites devant les juridictions pénales d’un État étranger’.63 This is consistent with decisions in the Netherlands,64 the US,65 the UK,66 Belgium,67 and Spain.68 Two national cases that could be interpreted as removing immunity ratione personae are explicable on grounds other than an exception to immunity.69
On vacating office a head of State loses his personal immunity but continues to enjoy a functional immunity, immunity ratione materiae. It is generally accepted that such functional immunity does not bar proceedings in respect of private acts committed while in office.70 As for official acts, there is some State practice on setting aside immunity for acts constituting international crimes, though the scope of the immunity in such circumstances is still uncertain.
Exception to immunity from criminal proceedings for acts constituting prosecutable international crimes
In considering whether and to what extent an exception exists to the immunity of former heads of State from proceedings in national courts two conflicting approaches exist. The first denies any exception to immunity in proceedings brought before a national court other than for acts performed in a private capacity. The second postulates an exception to such immunity to accommodate developments in general international law, in particular the now established rule that official status is no defence to the commission of an international crime. But this admits some uncertainty as to the scope of that exception—uncertainties as to the category of violation of international law which removes immunity, and as to its application solely to criminal but not civil proceedings relating to that category of acts.
The leading case taking the second approach remains the Pinochet (No 3) Judgment of the House of Lords. In that case Spain requested the English authorities to arrest the former head of State of Chile who was receiving medical treatment in England with a view to his extradition for international crimes. Pinochet as a head of State, as the Lords all recognized, enjoyed absolute immunity ratione personae for all his acts, whether in respect of his public acts or personal affairs and in respect of civil proceedings or criminal prosecution in another State’s court so long as he held office.
But the question in Pinochet turned on the position of the Chilean head of State after he had left office and here the Lords accepted that such a former head of State, along with other State officials, continues solely to enjoy immunity ratione materiae in relation to acts performed as part of his official function.71 Further, they accepted that such immunity ratione materiae covers acts of serious injury or murder and is available whether the acts in question are illegal, or unconstitutional or otherwise unauthorized under the internal law of the State, since the whole purpose of State immunity is to prevent the legality of such acts from being adjudicated upon by the municipal courts of a foreign State.72
The issue then for determination in the Pinochet case was whether the crimes for which extradition was sought were covered by such immunity ratione materiae or came within an exception to that immunity by reason of being acts the prohibition of which had acquired the status under international law of jus cogens. Lords Browne-Wilkinson, Hope, Hutton, Saville, Millett, and Phillips, with Lord Goff alone dissenting, held that, having regard to the 1984 UN Torture Convention, Pinochet enjoyed no immunity in respect of acts of torture and conspiracy to torture alleged to have been committed after the 1984 Convention had been ratified by Spain, Chile, and the UK. They construed the 1984 Convention as establishing ‘a fully constituted international crime’ making plain that:
a Head of State is included in the term ‘public officials or other person acting in an official capacity’ defined by Article 1 as the persons liable for the commission of the international crime of torture; and that this definition of the offence of torture and the obligation in the Convention to extradite or prosecute offenders is inconsistent with the retention of an immunity for a former Head of State for such a crime.73
They concluded that in respect of a clearly established international crime for which prosecution was accepted as obligatory by both forum and home State, an individual office-holder participating in its commission is, when out of office, personally subject to municipal law. They thereby created a parallel personal criminal liability in municipal law of the individual offender. In a sense, just as the restrictive doctrine has privatized commercial transactions of States to make them subject to municipal law, so the Lords’ decision has privatized commission of international crimes to make them prosecutable in municipal law against the individuals who commit them.
The precise grounds for discarding the immunity ratione materiae which Pinochet enjoyed as a former head of state by reason of the SIA, section 20(1) were variously stated: Lords Browne-Wilkinson, Saville, and Millett held immunity to be inconsistent with the Torture Convention; Lord Hope expressed it as ‘an exception to immunity ratione materiae’; and Lords Hutton and Phillips were of the view that the alleged acts of torture were ‘not the official functions of a head of state’. As discussed below, the Pinochet Judgment has not led to the development of a general exception to immunity ratione materiae for grave human rights violations. The disparate reasoning in the Judgment has no doubt limited its influence.
The outcome of Pinochet (No 3) depended on drawing a distinction between a head of State in office and one who had vacated office.
The response of the ICJ in the 2002 Arrest Warrant Judgment was to support the other conflicting first point of view. In paragraph 61 the Court stated:
Accordingly, the immunities enjoyed under international law by an incumbent or former Minister for Foreign Affairs do not represent a bar to criminal prosecution in certain circumstances.
First, such persons enjoy no criminal immunity under international law in their own countries, and may thus be tried by those countries’ courts in accordance with the relevant rules of domestic law.
Secondly, they will cease to enjoy immunity from foreign jurisdiction if the State which they represent or have represented decides to waive that immunity.
Thirdly, after a person ceases to hold the office of Minister for Foreign Affairs, he or she will no longer enjoy all of the immunities accorded by international law in other States. Provided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity.
Fourthly, an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda, established pursuant to Security Council resolutions under Chapter VII of the UN Charter, and the future International Criminal Court created by the 1998 Rome Convention.
The latter’s Statute expressly provides, in Article 27, paragraph 2, that ‘[i]mmunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person’.74
By this decision the ICJ treated the position of former and serving Ministers for Foreign Affairs—and by analogy former and serving heads of State—as identical, realizing that to allow a distinction based on change of status would undermine the whole functional justification of immunity ratione materiae as performance of an act of the State.
There are strong arguments in favour of this first classical viewpoint reaffirmed by the ICJ: first, the immunities are those of the State not of the individual head and the change in status between an incumbent and former head of State should consequently be irrelevant. This immunity for official acts is the immunity of the State and it exists throughout, not being in any way dependent on whether a particular official is in office or not.
Secondly, to separate the immunity enjoyed by the incumbent from the serving head of State is practically unworkable since the prospect of prosecution on retirement would deter the incumbent while in office from carrying out his functions efficiently, discourage him from ever resigning, and encourage the grant of national amnesties. Thirdly, the functional immunity ratione materiae enjoyed by the head of State who vacates office is also enjoyed by all officials who perform functions on the State’s behalf and serves to protect them when in office they act on the State’s behalf.75 If such functional immunity is to be lost by a former head of State it ought also to be lost by all other officials, exposing the whole of the internal administration of one State to review by the courts of another State and thereby constituting an intervention in the internal affairs of another State. Given that the origin of the grant of immunity after vacating office was designed to protect the retiring diplomat from acts committed within the territorial jurisdiction of the receiving State such protection would seem all the more justifiable in respect of acts committed within the territory and hence the jurisdiction of the defendant State. Finally, and probably most significantly, to allow such an exception to immunity would impede international communication and good relations between States, the importance of which was stressed in the Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal in the Arrest Warrant case.
The alternative approach which postulates an exception to immunity to accommodate developments in general international law counters the third argument above. By applying the Pinochet decision, the immunity ratione materiae of a former head of State is restricted to official acts other than the commission of certain international crimes, and this limitation brings his treatment in line with that accorded to lower ranking officials. There is State practice where military officers and State officials of lesser rank are made subject to criminal proceedings for the commission of genocide, war crimes, and crimes against humanity by national courts of other States regardless of any functional immunity (see below). Acts of genocide, war crimes contrary to the Hague or Geneva Conventions, and a single act of State torture under the 1984 UN Convention on Torture are all now recognized as such international crimes (ICC Statute, Article 5).76
Further arguments to support the alternative approach turn on the obiter dicta nature of the ICJ’s statement in Arrest Warrant and the decision’s restriction to the case of a Minister for Foreign Affairs. More broadly the first approach requires a rejection of official status as a defence to the commission of an international crime, and acceptance of a treaty obligation by the forum State to prosecute anyone present in its territory accused of international crime. The jus cogens nature of the prohibition of international crimes, the protection of fundamental human rights violated by the commission of such crimes, and the standing of the individual victim are all grounds relied on for a modification of the existing rule.77
The conflict remains unresolved.
Various routes to resolve the conflict have been advanced. One set out in the Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal is to claim, as does Bianchi, that ‘serious international crimes cannot be regarded as official acts because they are neither normal State functions nor functions that a State alone (in contrast to the individual) can perform’; this places emphasis on ‘an increasing realization that State-related motives are not the proper test for determining what constitutes public State acts’.78
In effect the Joint Separate Opinion suggests, in line with certain municipal court decisions, that an order by a head of State to commit genocide or an international crime should be construed by international law as a private act and hence one that does not attract immunity. An immediate common-sense reaction is to reject such a construction as a legal fiction. State crimes factually are distinguished from private acts by reason of the apparatus of the State being made available for the commission of the international crime—the prison, the equipment, and the personnel.79 Legally to treat an act motivated for a State purpose as not an act of State would seem to introduce some doctrine of ultra vires into the legal personality of the State—a concept surely at variance with the sovereignty from which the concept derives and the rules of State responsibility by which attribution of an act to the State is determined by the law of that State (ILC Articles on State Responsibility, Article 4(2)). Municipal law equally in the past in theory found it difficult to accept that a creature of the law—a corporation—could commit civil delicts and crimes but practical considerations overrode such theoretical difficulties to provide first for tortious vicarious responsibility and more recently for criminal liability of corporations.80 The contention that a crime is the sole type of function which a State cannot commit alone is also surely unsupported by State practice. Under the restrictive doctrine it is possible for a municipal court to hold a State liable for a commercial fraud which requires proof of deliberate intent to defraud; here as with a crime the official provides the intent using State means to effect the fraud.
It may, however, be possible to construe the meaning of the Joint Separate Opinion’s suggestion more restrictively as referring to the conferment of immunity rather than attribution of the commission of serious international crimes to a former head of State. Lord Hoffmann indicated such a distinction when in explaining the Court of Appeal decision in Jones he spoke of ‘whether torturing people could be an exercise of the functions of a head of State, which is a very different question from whether it could be an official act for the purpose of common law immunity ratione personae’.81 On this construction immunity may be separated from the concept of attribution.82
But returning to the immediate question at hand, the immunity from criminal proceedings of a former Head of State, the current position may be stated as follows:
The personal immunity of the head of State while in office bars all criminal proceedings in national courts including prosecution for international crimes. The functional immunity enjoyed by other officials whatever their rank when they perform a State function bars criminal proceedings for such acts save where they relate to the commission of international crimes, such proceedings being confined to such crimes for which by treaty States are under obligation to make penal offences and prosecute in their national systems. At the present time the removal of immunity relates solely to criminal proceedings leaving in place immunity in respect of civil proceedings. This last limitation has the advantage that whilst, due to the absence of criminal liability of the State, there is no risk of criminal prosecution of the State itself,83 the retention of immunity for civil proceedings ensures that a civil claim against an official for damages cannot result in a similar civil claim against the State for reparation. Finally, as indicated by the ICJ, whilst prosecution of a former head of State by another State’s national court may be barred by functional immunity, the overriding of immunity in the ICC Statute and its conferment of jurisdiction on the ICC over international crimes as specified in the Statute means that immunity constitutes no bar to prosecution of a serving or former head of State before the ICC.84
Should change take place and the second approach prevail, Article 13 of the Institut de Droit International’s 2001 Resolution, provides a possible formulation:
[A former Head of State does not] enjoy immunity from jurisdiction, in criminal, civil or administrative proceedings, except in respect of acts which are performed in the exercise of official functions and relate to the exercise thereof. Nevertheless, he or she may be prosecuted and tried when the acts alleged constitute a crime under international law, or when they are performed exclusively to satisfy a personal interest, or when they constitute a misappropriation of the State’s assets and resources.85
As the ICJ pointed out in the Arrest Warrant Judgment, a serving or former Minister for Foreign Affairs (and, by analogy, a serving or former head of State) ‘may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction’.86 The ICJ gave the examples of the ICTY, the ICTR, and the then-future ICC. In fact, only the ICC expressly provides that immunities may be set aside in Article 27(2) of its Statute:
[i]mmunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.
Article 27(2) is the first express denial of immunity in the constitutive instrument of an international court, but even then it must be read with Article 98, which preserves immunity in certain situations.
The Statutes of the ICTY and ICTR, as well as the Charter of the Nuremberg Tribunal, only provide that the official capacity of the defendant is not a defence before these judicial bodies—the official position of a person ‘shall not relieve such person of criminal responsibility nor mitigate punishment’.87 This is not the same as removing immunity: immunity is a bar to jurisdiction rather than responsibility,88 and the provisions are silent as to jurisdiction.89 In any event, a tribunal properly constituted in international law, that is established with the consent of the relevant States, should require no further consent to create a jurisdiction over those States and their nationals, and consequently no question of immunity or waiver on their behalf should arise. In addition, if the substantive law of the international tribunal excludes any defence based on the status of head of State, it would seem implicitly to treat that status as of no relevance as a bar to its jurisdiction. It was the view of the Commission which advised the Versailles peace conference that there was no legal obstacle to the prosecution of the former Kaiser (although it should be noted that the two US members of the Commission dissented). Its report distinguished an international tribunal established with the consent of States from a national court.90 The question of immunity did not arise with regard to the Nuremberg Tribunal or the ICTY or ICTR. With respect to the former, the consent of Germany by unconditional surrender dispensed with the need for such a plea; with respect to the international criminal tribunals, their establishment by decision of the Security Council under Chapter VII of the UN Charter, which binds all members, dispensed with the need for consent of any participating State.91
Charles Taylor, President of Liberia at the time of his indictment, relied on the Arrest Warrant Judgment to argue that immunity ratione personae shielded him from proceedings before the Special Court for Sierra Leone (which has a Statute that echoes the wording of the ICTY and ICTR on the defence of official capacity). The Appeals Chamber of the SCSL rejected Taylor’s argument, citing the international nature of the Special Court and referring to the distinction between national and international courts expressed in the ICJ’s Judgment.92
The position of the ICC is more complex, due to its basis of jurisdiction and the relationship between Articles 27 and 98 of its Statute. Because the jurisdiction of the ICC under its Statute is treaty-based and not directly linked to the UN system, it enjoys no superior authority over other international conventions. Further, the principle of complementarity by which the Court operates preserves a presumption in favour of prosecution in national courts. It is therefore necessary to impose a treaty obligation on contracting States Parties of cooperation ‘in accordance with the procedure of their national laws’ (Article 98), including the arrest and transfer of suspects to the ICC. In this regard, following a ruling of the French Constitutional Court, France amended its constitution to enable France to ‘recognise the jurisdiction of the ICC in the conditions set out in the treaty signed 18 July 1998’ although it did so without changing the position under Article 68 of the Constitution which gives the French President procedural immunity from criminal prosecution in the French courts during his term of office.93
Much has been written on the construction of Article 98(1) of the ICC Statute with views differing as to the continued force of immunities enjoyed by heads of State and diplomatic agents.94 Article 98(1) of the ICC Statute provides: ‘The court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the court can first obtain the cooperation of that third State for the waiver of the immunity’.95 The view of the UK government is that the broad effect of Articles 27 and 98 is that neither before the ICC nor in respect of a ratifying State Party is a plea of immunity effective to bar prosecution for war crimes or crimes against humanity. Article 27(1) prevents either the international court or a State Party to the Statute from giving effect to any immunity available by reason either of international or national law.96 As Lord Avebury on behalf of the UK government explained:
… in accepting Article 27, a State party to the ICC Statute has already agreed that the immunity of its representatives, including its head of State, may be waived before the International Criminal Court and that their status is not a barrier to their arrest and surrender to the court (HL, Hansard vol. 622, col. 11 (12 February 2001)).
Consequently, where a head of State present in another State is subject to a request for surrender, the State of that head of State if it has ratified the ICC Statute would probably be deemed by that consent and acceptance of Article 27 to have waived any immunity to which its head of State might be entitled.
However, whether a request for surrender directed not to his State but to a third State, which is not a party to the Statute, may be defeated by a plea of immunity is less clear. Dicta in the ICJ’s decision in the Arrest Warrant case conflicts with decisions in national courts relating to former heads of State such as Pinochet (No 3) and the Chilean Supreme Court’s decision to extradite Fujimori, the former President of Peru.97 Whilst immunity of an incumbent or former Minister for Foreign Affairs would be no bar where proceedings were brought in the courts of their own countries or waived by the State which they represent, the ICJ declared the immunity of a former Minister for Foreign Affairs to continue in respect of the commission of an international crime stating:
… after a person ceases to hold office of a Minister for Foreign Affairs, he or she will no longer enjoy all immunities accorded by international law in other States. Provided it has jurisdiction under international law a court of another State may try a former Minister for Foreign Affairs in respect of acts committed prior or subsequent to his or her period of office as well as in respect of acts committed during that period of office in a private capacity.98
As discussed above, this obiter dictum of the ICJ is difficult to justify and contradicts the established State practice with respect to military officers and other State officials charged with international crimes. However, the ICJ also recognized that an incumbent or former Minister for Foreign Affairs might be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction, and specifically mentioned the ICC in that context. In doing so the court did not distinguish whether such criminal proceedings were to relate to an incumbent or former minister of a contracting State or to those of non-contracting States. In consequence it is arguable ‘at least in proceedings before international tribunals that ratione materiae immunities are removed across the board without any distinction between contracting and non-contracting parties’.99
This question has arisen before the ICC in the context of an arrest warrant for the incumbent President of the Sudan, Omar Al-Bashir.100 The Pre-Trial Chamber held that customary international law creates an exception to Head of State immunity when international courts seek a Head of State’s arrest for the commission of international crimes.101 The fact that the situation in Darfur was referred to the ICC by the Security Council pursuant to a Chapter VII resolution is significant.102 According to Articles 25 and 103 of the UN Charter, Member States are obliged to carry out Security Council decisions even if they conflict with any ‘other international agreement’.103 The removal of immunity in this case is thus a function of Charter law operating in a specific situation (even though the Pre-Trial Chamber did not use this argument in its decisions).
As stated above, it is beyond doubt that immunity ratione personae applies to heads of State under customary international law; this is also the assumption regarding heads of government. Certain treaties have extended this immunity to certain diplomatic staff.104 Until the Arrest Warrant Judgment, it was unclear whether Ministers for Foreign Affairs were entitled to the same immunity ratione personae as heads of State.105 The ICJ’s Judgment applied the immunity enjoyed by the heads of State to the Minister for Foreign Affairs.106 As the Joint Separate Opinion pointed out, this entitled Ministers for Foreign Affairs to immunities during private travels, which was ‘far less clear’ from customary international law.107 The ICJ cited the need to ensure the Minister’s effective performance of functions on behalf of the State.108
Ministers of central government other than the head of State, of government and the Minister for Foreign Affairs when performing official functions enjoy immunities as individuals acting as representatives of the State (see Chapter 10 on representatives of the State).109 The extent to which they enjoy additional immunities by reason of their membership of central government is not clear. In discussions in 2001 at the Vancouver meeting of the Institut de Droit International objection was made to giving Foreign Ministers special treatment, as many other Ministers, particularly the Finance Minister, represented the State to an equal or greater extent in international relations. Akande and Shah take the opposite view, arguing that immunity ratione personae should be limited to the head of State and head of government and should not even be applied to the Foreign Minister, let alone other ministers:
While removing immunity for the Head of State and Head of Government goes to the root of the principle of equality of states, removing immunity for other senior officials on private visits does not have the same dramatic impact … extending such a broad immunity ratione personae to other ministers, as the ICJ did in Arrest Warrant, is erroneous and unjustified.110
The tendency in practice has, however, been to expand the categories of high-ranking officials benefiting from immunity ratione personae. The ICJ in Congo v Rwanda after noting that heads of State and of government and Ministers for Foreign Affairs are deemed to represent the State stated that:
with increasing frequency in modern times other persons representing a State in specific fields may be authorized by that State to bind it by their statements in respect of matters falling within their purview. This may be true, for example, of holders of technical ministerial portfolios exercising powers in their field of competence in the area of foreign relations, and even of certain officials.111
The ICJ indicated that in the case before it statements made in the capacity of a Minister of Justice of Rwanda in respect of the protection of human rights which were within the purview of a Minister of Justice might bind that State. In Djibouti v France, France rejected Djibouti’s contention that the Procureur de la République and Head of National Security of Djibouti enjoyed immunity ratione personae, pointing out ‘the essentially internal nature of their functions’.112 The ICJ agreed that ‘there are no grounds in international law upon which it could be said that the officials concerned were entitled to personal immunities’, relying on the fact that they were not diplomats nor covered by the Convention on Special Missions.113 The Court required that a foreign State claiming its officials benefited from immunity ratione materiae had to show the officials were its organs, agencies or instrumentalities.114
Since the Arrest Warrant Judgment, a Swiss court has suggested a Minister of Atomic Energy benefits from immunity ratione personae.115 In two cases in English courts the issue of an arrest warrant has been refused by reason of the immunity enjoyed a serving Minister of Defence of Israel, and in the second the Chinese Minister of Commerce including International Trade. The English courts emphasized the necessity for the Ministers to travel as part of their role.116 In another case, the English High Court held that a mid-ranking official (Head of the Executive Office of Mongolian National Security Council) was not entitled to immunity ratione personae by virtue of his government post.117
Capacity to travel on its own seems an inappropriate basis for extending the categories of officials benefiting from immunity ratione personae. In the English cases involving the Israeli Minister of Defence and the Chinese Minister of Commerce including International Trade, the Ministers were engaged in the conduct of aspects of the foreign relations of their States so the immunity granted to them may be in accordance with international law. The Swiss case involving the Russian Minister of Atomic Energy is more marginal, and was only an obiter dictum. The matter awaits authoritative decision. Akande and Shah’s view that only the head of State or government should benefit from immunity ratione personae is too narrow and fails to take into account that other high-ranking officials similarly need to travel to represent their State at the highest levels. It is suggested for a State official, other than the troika, to enjoy immunity ratione personae depends on a three-stage analysis: (i) the exercise of the official’s powers abroad; (ii) immunity as indispensable for carrying out such functions; and (iii) the authorization of the official to represent the State as to its position in foreign relations, including responsibility for matters which occur outside the State’s territory. That authorization may be given on a case-by-case basis or in a general manner (such as in the Constitution).
The head of government and Minister for Foreign Affairs and potentially other high-ranking officials enjoy immunity ratione personae while in office. The ICJ recognized the absolute character of such an immunity as regards a serving Minster for Foreign Affairs stating that from its examination of State practice it had ‘been unable to deduce from this practice that there exists under customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs, where they are suggested of having committed war crimes or crimes against humanity’.118 The discussion above on the immunity of serving heads of State thus applies equally to these high-ranking officials, including the potential removal of their immunity before international courts.
When a high-ranking official vacates office he, like the head of State, loses his immunity ratione personae but continues to enjoy immunity ratione materiae. This is the case whether he leaves government entirely or is demoted to a lower-ranking post. In the Joint Separate Opinion in the Arrest Warrant case, it was observed that when Mr Yerodia stepped down from Minister for Foreign Affairs and became Minister for Education, the illegal consequences attaching to the international arrest warrant ceased.119
The discussion above on the immunity of former heads of State is generally applicable to the immunity of former State officials, in that immunity ratione materiae does not bar proceedings in respect of private acts committed while in office. As for official acts constituting international crimes, there is more extensive practice on setting aside immunity for former high-ranking officials as compared to former heads of State.120 For example, the Federal Criminal Court of Switzerland held in 2012 that the former Minister of Defence of Algeria could not claim immunity ratione materiae for war crimes because it would be paradoxical if ‘conduct contrary to fundamental values of the international legal order can be protected by rules of the same legal order’.121
Three separate heads of immunity may arise when a State official visits another State: immunity ratione personae of the head of State and high-ranking officials (discussed above); immunity ratione materiae of State officials (discussed below); and immunity of visitors on special missions.122 The law regarding this third head consists of the Convention on Special Missions and rules of customary international law that are both wider and narrower than the Convention. UNCSI, Article 3(1) provides that it ‘is without prejudice to the privileges and immunities enjoyed by a State under international law in relation to the exercise of the functions of (a) its … special missions …; and (b) persons connected with them’. The ILC Commentary to that Article explains that ‘the extent of privileges and immunities enjoyed by a State in relation to the exercise of the functions of the [persons on special mission] is determined by the provisions of the international conventions …, where applicable, or by general international law’.
The Convention on Special Missions was adopted by the UN General Assembly in 1969 and entered into force in 1985. As of January 2013, it had 38 parties. The UK signed in 1970, but has not ratified the Convention.123 The US is not a signatory. Michael Wood points out that although the Convention has influenced customary rules, ‘it should not be assumed that all or even most of its provisions are now reflected in customary law, given the circumstances of its adoption and the lack of support among States’.124 He nonetheless points out that certain basic principles in the Convention—including the requirement of consent and the inviolability and immunity from criminal jurisdiction of persons on special missions—do now reflect customary international law.125
The ICJ has referred to the Convention in two cases, but only in passing. It provided ‘useful guidance’ on the immunities of high-ranking officials in the Arrest Warrant Judgment and was deemed inapplicable in Djibouti v France because neither State was a party to it.126
The Convention on Special Missions defines a ‘special mission’ as a ‘temporary mission, representing the State, which is sent by one State to another State with the consent of the latter for the purpose of dealing with it on specific questions or of performing in relation to it a specific task’ (Article 1(a)). The consent is ‘previously obtained through the diplomatic or another agreed or mutually acceptable channel’ (Article 2). The functions of the special missions are determined by mutual consent (Article 3). Most importantly, the persons on special missions are inviolable, not liable to any form of arrest or detention, and the receiving State is to take appropriate steps to prevent any attack on their persons, freedom or dignity (Article 29); they are immune from the criminal jurisdiction of the receiving State (Article 31).
The difference between the Convention and customary international law is succinctly stated by Crawford: the Convention confers a ‘higher scale of privileges and immunities upon a narrower range of missions than the extant customary law’.127 As Wood explains, the customary rules have developed by analogy with permanent diplomatic missions, which have similar functional needs, while taking into account the temporary duration of the special mission.128
Under the customary rules, only certain visitors who are on high-level missions are likely to be accepted as being entitled to immunity ratione personae. They need not be government officials and may include cross-party or ad hoc representatives.129 In practice, the broad range of visitors is limited by the requirement that the receiving State consent to the visit as one attracting immunity; the State recognizes the ‘special nature of the mission and the status of inviolability and immunity which participation in that Special Mission confers on the visitors’.130 What this consent means in practice is less clear. It requires more than the issuance of a diplomatic or official visa, but the term ‘special mission’ need not be used. National courts will usually accept the word of the Executive on whether consent has been given.131
In customary international law the immunities to which a person on special missions is entitled is determined by the principle of functional necessity, which would appear to be narrower than the immunities specified in the Convention and essentially confined to immunity from criminal jurisdiction and inviolability of the person.132
In the Khurts Bat case (discussed in more detail below in the context of the territorial exception to immunity ratione materiae), the English High Court found that he was not a member of a special mission sent by Mongolia to the UK. A letter to the District Court from the Director of Protocol and Vice-Marshal of the Diplomatic Corps proved conclusively that the FCO did not consent to the visit as a special mission: ‘no invitation was issued, no meeting was arranged, no subjects of business were agreed or prepared’.133 In 2011, the Director of Public Prosecutions declined to consent to a private prosecutor for the issue of an arrest warrant for Ms Tzipi Livni, the Israeli opposition leader who was alleged to have committed war crimes when she was Foreign Minister of Israel.134 The FCO certified, at the request of the DPP, that Ms Livni was in the UK on a special mission.135
Following the Khurts Bat case,136 the UK Government informed Parliament on 4 March 2013 of ‘a new pilot process by which the Government will be informed of inward visits which may qualify for special mission immunity status.’ In doing so it explained that
A special mission is a temporary mission, representing a State, which is sent by one State to another with the consent of the latter, in order to carry out official engagements on behalf of the sending State.
…
In the case of Khurts Bat v. the Federal Court of Germany [2011] EWHC 2029 (Admin) the High Court … made clear that not everyone representing a State on a visit of mutual interest is entitled to the immunities afforded to members of a special mission but only where a visit is consented to by as a special mission. In the case of inward missions to the United Kingdom, the Court affirmed that it is a matter for Her Majesty’s Government to decide whether to recognise a mission as a special mission.137
In a Note of the same date to diplomatic missions and international organizations in London, the Foreign and Commonwealth Office (FCO) drew attention to this new procedure ‘of which missions may wish to avail themselves, in order to clarify where the United Kingdom consents to an official visit as a special mission’. The Note stated that
The FCO is mindful of the obligations incumbent upon the United Kingdom under customary international law in respect of special missions. Under customary international law, a special mission is a temporary mission, representing a State, which is sent by one State to another State with the consent of the latter, in order to carry out official business. In this context, ‘official business’ will normally involve official contacts with the authorities of the United Kingdom, such as a meeting [with] officials of Her Majesty’s Government, or attendance at a ceremonial occasion, for example a Royal Wedding.138
Useful practice in this field is also found in the Netherlands. The Dutch Advisory Committee on Issues of Public International Law (CAVV) issued an advisory report (No 20) in May 2011 on the immunity of foreign State officials.139 The Dutch government agreed with the main conclusions and recommendations in a first response of 19 October 2011.140 In a letter of 26 April 2012,141 the government agreed with the CAVV that
under customary international law members of official missions enjoy immunity. This applies both to members of foreign official missions visiting the Netherlands and to members of Dutch official missions visiting other countries. Members of official missions can be regarded as ‘temporary diplomats’.
The letter lists four conditions that must be met:
a. The official mission must be temporary in nature (generally ‘a relatively short time, ranging from part of a day to a period of several weeks’).
b. The mission must be ‘from one state to another’. But ‘this does not mean that all the members of an official mission must be government officials. They may include, for example, parliamentarians or representatives of the business community’.
c. ‘An official mission must be a mission to the government of the receiving state.’
d. ‘The receiving state must have consented to receive the mission in question.’
The US practice on special missions (which are called ‘special diplomatic missions’) is similar to that of the UK and The Netherlands. It supports the existence of a customary rule that special mission immunity depends on the consent and recognition by the US Executive of the official visit as such.142 The US Restatement of 1987 provides
High officials of a foreign state and their staffs on an official visit … including those attending international conferences as official representatives of their country, enjoy immunities like those of diplomatic agents when the effect of exercising jurisdiction against the official would be to violate the immunity of the foreign state. Many such officials would enjoy immunity equivalent in all instances to that enjoyed by diplomatic agents under the Convention on Special Missions …143
The US State Department has submitted ‘suggestions of immunity’ regarding persons visiting the US, including Prince Charles and the Chinese Minister of Commerce.144 Its view has been followed by the courts.
Immunity ratione materiae, also known as functional immunity, attaches to a person who acts on behalf of a State in relation to conduct performed in their official capacity.145 This immunity extends beyond the period in which they were exercising their functions. Former officials can invoke this immunity with respect to their official acts performed while in office.146 As discussed above, former heads of State and other high-ranking officials who benefit from immunity ratione personae while in their post can claim immunity ratione materiae once they leave office.
It is generally accepted that immunity ratione materiae applies to State officials, regardless of their position in the State hierarchy.147 The ICTY Blaskic decision emphasized that it was the prerogative of each State to determine its internal structure and to designate the individuals who acted as its organs and agents.148
There is differing practice on whether the immunity of State officials should be treated as another type of immunity separate from State immunity. English law accords immunity to individuals who act as agents for a foreign State149 and English courts have construed the SIA to include individuals in its definition of ‘a foreign or Commonwealth State other than the UK’ section 14(1). Along similar lines, UNCSI Article 2(1)(b)(IV) provides that ‘“State” means … representatives of the State acting in that capacity’. In contrast, and after a period during which the circuit courts were split, the US position is that the FSIA does not apply to suits against foreign officials. The US Supreme Court observed in Samantar v Yousuf ‘the terms Congress chose simply do not evidence the intent to include individual officials within the meaning of “agency or instrumentality”’.150 The Court also found no basis for ‘reading “foreign state” to include foreign officials’.151 ‘Even reading the [FSIA] in light of Congress’ purpose of codifying state sovereign immunity, … we do not think that the Act codified the common law with respect to the immunity of individual officials.’152 (See further Chapter 10 (The Definition of the Foreign State), Chapter 7 (English Law), and Chapter 8 (US Law)).
The extent to which the decision in Pinochet (No 3) served to effect a reduction in the scope of the immunity ratione materiae of State officials remains uncertain.153 Much academic writing strongly supports a human rights exception to immunity ratione materiae. The 2009 Naples Resolution of the Institut de Droit International provides for an exception to immunity ratione materiae (as contrasted to personal immunity) for international crimes:
Immunity of persons who act on behalf of a State
1. No immunity from jurisdiction other than personal immunity in accordance with international law applies with regard to international crimes.
2. When the position or mission of any person enjoying personal immunity has come to an end, such personal immunity ceases.
3. The above provisions are without prejudice to:
(a) the responsibility under international law of a person referred to in the preceding paragraphs;
(b) the attribution to a State of the act of any such person constituting an international crime.
However, State practice indicates a more hesitant response. Some prosecutions in other countries have followed the decision in Pinochet but they have been few in number and have tended to be in relation to officials of relatively junior rank.154 Whilst the ruling of the ICJ in the Arrest Warrant supports an absolute rule for high-ranking officials enjoying personal immunity when they are in office, its ruling has been questioned in so far as it omits international crimes in its listing of the acts not covered by immunity ratione materiae of a State official when out of office for which the court of another State may exercise jurisdiction.155 The Joint Separate Opinion of Judges Kooijmans, Higgins, and Buergenthal in this ICJ case identified one possible way to restrict the application of immunity to international crimes by denying them recognition as ‘official acts’ because they are neither normal State functions nor functions that a State alone (in contrast to an individual) can perform.156 But this view has been questioned; practically the gravity of international crimes arises by reason of State participation and resources in their commission and the illegal character of the act provides no exemption of a State from its responsibility in international law.157
Since 2007 the ILC has been considering the topic of ‘Immunity of State officials from foreign criminal jurisdiction’. The first Special Rapporteur, Mr Roman A Kolodkin, submitted three reports in 2008–11,158 which generally took a conservative view of any exception to immunity for international crimes and failed to achieve consensus within the ILC. The new Special Rapporteur, Ms Concepción Escobar Hernández, has said that since consensus had not been reached on this (and other) issues, ‘it would be useful for the Commission to consider the controversial issues from a fresh perspective’.159 Certain ILC members have suggested the Special Rapporteur consider the reasoning of the ICJ in Jurisdictional Immunities even though the Court said it was addressing only State immunity.160
Two main justifications for an exception to the general immunity ratione materiae are (i) the peremptory nature of grave international crimes resulting from the jus cogens nature of the law that prohibits them; and (ii) the universal jurisdiction which requires all States to enact as offences in their national penal codes such international crimes and to prosecute any individual who commits such a crime. Both justifications have been challenged.161 So far as the jus cogens nature of the offences this category of international crimes remains ill-defined and open-ended (eg forced disappearance, illegal rendition).162 Further, the substantive nature of the jus cogens rule is contrasted with and remains unchallenged by the procedural nature of immunity. As the ICJ said in Jurisdictional Immunities, ‘[t]he two sets of rules address different matters’.163
However, in rebuttal, the ILC’s 2005 Report on the Fragmentation of International Law states plainly that ‘[a] rule of international law may be superior to other rules on account of the importance of its content as well as the universal acceptance of its superiority. This is the case of peremptory norms of international law’. Moreover, the absence of remedy for such heinous offences, the perpetration of which frequently depends on the cooperation of State officials, is seen as equating to impunity where neither the wrongdoer’s State nor that of the nationality of the victim exercises jurisdiction.
Both these grounds found little favour with the ICJ in its 2012 ruling. Although the Court in its judgment in the Jurisdictional Immunities expressly excluded consideration of the position of the State official (para 91), its rejection of jus cogens violations or the absence of an alternative effective remedy as justification for the Italian courts’ disregard of the procedural bar of State immunity may well discourage States from instituting criminal proceedings in their national courts against former perpetrators of international crimes on State orders.
There is, however, one significant factor in criminal proceedings that may justify such an exception. The requirement of a mens rea, a guilty mind, for conviction of an international crime on the part of the individual who commits the act provides justification for removal of immunity in criminal prosecution in a national court where that individual is a State official, particularly, as without the possibility of criminal prosecution in national courts, in the majority of cases the international law principle of no immunity for the commission of international crimes becomes a dead letter lacking enforcement.
As regards the argument based on an obligation to exercise universal jurisdiction for international crimes, the position at present would seem that customary international law imposes no general obligation to exercise such jurisdiction. Only those States Party to the ICC Statute are under obligation to prosecute the international crimes defined therein and then only where the acts are committed on their territory or by one of their nationals. Otherwise, a State’s obligation is limited to and derives from the entry into specific international conventions undertaking to enact as offences in its penal codes specific international crimes and to exercise universal jurisdiction in respect of them. This has been confirmed by the ICJ in the 2012 Belgium v Senegal case, accepted jurisdiction at the instance of a State Party to the 1984 UN Torture Convention to adjudicate the extent of the Convention’s obligation to prosecute but rejected any such jurisdiction based on customary international law.164
It can, therefore, probably be accepted that at the present time whilst the condemnation of the commission of grave international crimes as jus cogens offences is widely endorsed and the desire to end impunity is expressed by many States, the jurisdiction to prosecute international crimes in national courts continues to be uncertain. It is dependent on other factors such as the jurisdictional connection of the act, or the individual offender or the victim with the prosecuting State and that State’s obligations to exercise extraterritorial jurisdiction where the alleged crime has been committed outside its territory.165 Akande and Shah propose a variation on the universal jurisdiction justification for setting aside immunity ratione materiae: they argue that
where extra-territorial jurisdiction exists in respect of an international crime and the rule providing for jurisdiction expressly contemplates prosecution of the crimes committed in an official capacity, immunity ratione materiae cannot logically co-exist with such a conferment of jurisdiction.166
They apply this approach to torture, enforced disappearance, and war crimes in an international armed conflict—all crimes with a basis in treaty law. They admit that the arguments relating to war crimes in a non-international armed conflict, crimes against humanity and genocide are not as strong, but they find them consistent with the policy goals underlying universal jurisdiction.167
As for the relevance of the rank of the official, general statements such as the Institut de Droit International Resolutions of the 2001 Vancouver and 2009 Naples sessions on the removal of immunity ratione materiae make no distinction as to the rank of the official in respect of the prosecution of international crimes. However, practically and politically, the likelihood of prosecution of former officials of senior rank who recently have enjoyed personal immunity continues to be remote.
There is, as noted in Chapter 4, a line of cases where State practice allows the territorial jurisdiction of the forum State to preempt the State immunity of the foreign State and allows prosecution despite the commission of the offending acts in the course of official functions where they are committed within the forum State’s territory without its consent.168
A recent ruling of an English court supports this territorial exception. The court held that the immunity ratione materiae of a senior security officer, Khurts Bat, of the Mongolian government provided no bar to the execution of a European arrest warrant requested by the federal German court in respect of the abduction and serious bodily injury of another Mongolian national committed by Bat in France and Germany.169 Having rejected pleas that he was of sufficiently high rank within the Mongolian government to enjoy personal immunity or that he was on a special mission in the UK, the Administrative Court considered whether Bat ‘as an official acting on behalf of the Government of Mongolia is entitled to immunity from criminal prosecution in Germany ratione materiae, that is, entitled to immunity by virtue of his actions on behalf of that State as opposed to his status, i.e., ratione personae’. Relying on the view of ILC Special Rapporteur Kolodkin supported by reasoning of Franey that recent State practice as established in the Rainbow Warrior case and two Mossad agents in Cyprus is to be preferred to earlier case law,170 Moses LJ with Foskett J agreeing, applied the suggested territorial exception and held that no immunity ratione materiae was enjoyed by a State official who entered the territory of a foreign State without the consent of that State and without its knowledge and committed acts against the order and security of the foreign State contrary to its law (‘breaches of sovereignty’).171
Since the State is the prime beneficiary of State immunity, it is not surprising that the officials who develop and implement its policies also seek its protection. The unique position of the head of State as the key representative of the State has justified a level of protection equal if not greater to that of the diplomat and he enjoys immunity during the period of office for acts performed at home and abroad, public and private in nature. This immunity ratione personae has also been extended to the head of government and Minister for Foreign Affairs (and possibly other Ministers who travel as part of their portfolio) as well as, on a more limited basis, to officials on special mission. As the model of State immunity has shifted from Absolute to Restrictive, there has also been pressure to set aside immunity for private acts for officials.
However, the alignment between State immunity and the immunity of State officials appears to be shifting. The Third (Procedural) Model of State immunity—represented by the ICJ’s rejection in the Jurisdictional Immunities Judgment of an expansion of the Restrictive Model to include acts in violation of jus cogens norms—reverts, in respect of State immunity, to its absolute nature in respect of acts committed during armed conflict. But the ICJ expressly confined its ruling to the State,172 leaving the law on the immunity of State officials in respect of the commission of the same acts to develop independently. Signs of a different approach, grounded in a desire to end impunity for international crimes, are emerging with respect to the immunity of former high-ranking officials and lower-ranking officials (former or serving) accused of human rights violations, both before national and international courts. There also indications of a further ‘split’ developing—between high ranking and ordinary State officials—with the high ranking officials, particularly the troika of head of State, head of government, and Foreign Minister, retaining immunity when out of office for acts committed while in office in violation of jus cogens.