¹ See generally, Watts, ‘The Legal Position in International Law of Heads of State, Heads of Government and Foreign Ministers’ (1994–III) R de C 242; Wickremasinghe, ‘Immunities Enjoyed by Officials of States and International Organizations’ in MD Evans, International Law (3rd edn, 2010); Akande and Shah, ‘Immunities of State Officials, International Crimes and Foreign Domestic Courts’ (2010) 21 EJIL 815; Van Alebeek, The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law (2008); Roberts (ed), Satow’s Diplomatic Practice (6th edn, 2009).

² Whilst a State may have no immunity in respect of an act relating to a commercial subject-matter, a State official may continue to enjoy immunity by performing such an act of the State in the service of the State.

³ At para 91. See the Index for references to this case throughout the book.

⁴ Watts,‘The Legal Position in International Law of Heads of State, Heads of Government and Foreign Ministers’, 23; Verhoeven, Preliminary Report (2001) 69 ADI 444; Cahier, Le Droit Diplomatique (1962); Watts, ‘Head of State’, MPEPIL (2012); Joanne Foakes, The Position of Heads of State and Senior Officials in International Law (2013).

⁵ Habré, Ct of Cassation, Senegal, 20 March 2001; 125 ILR 569; Castro case (Spain). Alfredo Stroessner (Paraguay), Idi Amin (Uganda), Baby ‘Doc’ Duvalier (Haiti), Bezel Bokassa (Central Africa), and Haile Mariam Mengistu (Ethiopia) all as former heads of State sought exile. See Foakes, ‘Immunity for International Crimes? Developments in the Law on Prosecuting Heads of State in Foreign Courts’, Chatham House Briefing Paper, November 2011 (IL BP 2011/2).

⁶ (1932) 16 AJIL 475–9.

⁷ YBILC (1991) II, pt 2, 1. See Ch 9 (privileges and immunities of head of State).

⁸ Resolution of the 13th Commission, Rapporteur, Professor J Verhoeven (2000–1) 69 ADI 742.

⁹ See the discussion in YBILC (1986) I, 4–20, particularly 10, 17; Pinochet (No 3) [2000] AC 151, [1999] 1 All ER 97, per Lord Hope at 146; Kendall v Kingdom of Saudi Arabia (1977) Digest of US Practice in Int Law, 1053 (SDNY 1965). In BCCI v Price Waterhouse [1997] 4 All ER 108 the English court in construing ss 14 and 21 of the SIA refused to treat the Ruler of the Abu Dhabi Emirate as a head of State of that Emirate because Abu Dhabi was not recognized as a State but only as a constituent territory of the United Arab Emirates.

¹⁰ O’Hair v Wotjyla (1979) Digest US Practice in IL, 897, Civ No 79–2463 (dismissing His Holiness Pope John Paul II from an action seeking an injunction to prevent a celebration of the mass in Washington by the Pope when on a visit to the US). See also in a suit brought against Cardinal Ratzinger’s participation in conspiracy to shield a Catholic seminarian from sexual molestation, the US Department of Justice’s brief which states ‘under customary international law and pursuant to this suggestion of immunity Pope Benedict XVI as the head of a foreign State is immune from the court’s jurisdiction in this case’ (2006) 100 AJIL 220.

¹¹ For a list of 68 States whose heads were also heads of governments, and of 80 in which the two offices were divided, see HL, Hansard, vol 388, cols 1405–6 (written answers, 14 February 1978).

¹² The Institut’s ‘Resolution on Immunities from Jurisdiction and Execution of Heads of States and of Governments in International Law’ (2000–01) 69 ADI 742.

¹³ Saltany v Reagan 886 F.2d 438 (DC Cir 1989); 80 ILR 19.

¹⁴ Arrest Warrant of 11 April 2000 (Democratic Republic of Congo/Belgium), Judgment Preliminary Objections, and Merits, ICJ Reports 2002, para 53; for US law see Tachiona et al v United States of America 386 F.3d 205 (2nd Cir 2004).

¹⁵ Kilroy v Windsor, Civil Action No C–78–291; 81 ILR 605, claim against Charles, Prince of Wales, relating to treatment of prisoners in Ireland.

¹⁶ See Apex Global v Fi Call Ltd & Ors [2013] EWHC 587 (Ch), a case concerning the half-brother of the King of Saudi Arabia and his son. Justice Vos observed that ‘an heir to the throne or a regent undertaking the offices of state on behalf of the sovereign or head of State might quite properly be regarded as a part of the household, even if he or she lived apart from the sovereign’ (para 107); and possibly ‘an in-house assistant or amanuensis carrying out the sovereign’s functions… in a full time capacity for him and on his behalf’(para 106).

¹⁷ In Case concerning Certain Criminal Proceedings in France (Republic of the Congo/France), ICJ Provisional Measures Order, 17 June 2003, Judge de Cara in his dissenting opinion referred to the case as involving ‘the Head of State and in Africa the Head of State embodies the nation itself’.

¹⁸ Judgment in Case C-364/10, Hungary v Slovakia, 16 October 2012. Slovakia refused to allow the President of Hungary to enter Slovak territory to participate in a ceremony on 21 August, a sensitive date in Slovakian history. The ECJ observed that under international law the head of State enjoys a particular status in international relations that entails privileges and immunities. The status has a specific character capable of distinguishing the person from all other EU citizens with the result that that person’s access to the territory of another Member State is not subject to the same conditions, namely freedom of movement, applicable to other citizens. EU law thus did not oblige Slovakia to guarantee access to its territory to the President of Hungary.

¹⁹ The ICJ rejected an assertion by Yugoslavia that Mr Izetbegovic, the President of the Republic of Bosnia-Herzegovina, had no authority to institute proceedings in the Bosnia Genocide case: ICJ Reports 1996, Preliminary Objections, para 44.

²⁰ Nuclear Tests case (Australia/France, New Zealand/France), ICJ Reports 1974, para 49.

²¹ Case Concerning the Application of the Genocide Convention, Preliminary Objections, ICJ Reports 1996, 4 at 31, para 44.

²² The Foreign Minister’s special position was expressly recognized by the PCIJ in the Legal Status of Greenland case, PCIJ (1933) Ser A/B No 53 at 71 in connection with the Ihlen declaration.

²³ Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Rwanda), ICJ Reports 2006, para 46.

²⁴ Similarly, representatives accredited by States to an international conference or to an international organization or one of its organs have powers limited to adopting the text of a treaty in that conference organization or organ.

²⁵ ‘Any act declaring invalid, terminating or withdrawing from or suspending the operation of a treaty … shall be carried out through an instrument communicated by the other party. If the instrument is not signed by the head of State or Head of government or Minister for Foreign Affairs the representative of the State communicating it may be called upon to produce full powers.’ Rosenne, Developments in the Law of Treaties 1945–1986 (1989), 130, 303.

²⁶ The 1969 Convention on Special Missions provides that (a) a head of State of a sending State who leads ‘a special mission shall enjoy the privileges and immunities accorded by international law’ whereas other persons of high rank enjoy ‘in addition to what is granted by the present Convention’ the facilities, privileges, and immunities accorded by international law. As Watts says, this could imply either that the position of a head of State on a special mission is governed by international law, or that his protection under international law is so comprehensive that no additional facilities, immunities, etc are required to be conferred by the Convention: Watts, ‘Head of State’, 39. It is to be noted that the ILC when preparing the Draft Convention proposed the same formula in respect of ‘additional privileges and immunities as provided for other officials’. The 1969 Convention distinguishes the head of State from the head of government and Minister for Foreign Affairs who are placed in category (b) along with other persons of high rank. In the 1972 Convention, the head of State, head of government, and Minister for Foreign Affairs, however, are all placed in the same category, and are distinguished from a second category of ‘any representative or official … entitled pursuant to international law to special protection’. The Commentary explains the separate treatment of the head of State ‘on account of the exceptional position which under international law attaches to such a status’.

²⁷ The Tinoco Concessions, GB/Costa Rica Arbitration (1923) 1 RIAA 369. Whether international law requires the appointment of a head of State is an open question. Provided alternative arrangements have been made to represent the State in external affairs, the office would not seem essential; only if its absence resulted in incapacity to conduct relations with other States would it affect the independence or responsibility of the State.

²⁸ For an account of the Haiti events, see Roth, Government Legitimacy in International Law (1999), 364–93.

²⁹ The non-disclosure of the Zimbabwe election results for a new head of State in 2008 provoked political dissent rather than objection based on international law. In the absence of recognition of a new head of State and government, and disregarding erga omnes obligations of third States, there would seem to be no international person to be held in breach of international law. When incumbent President Laurent Gbagbo refused to concede defeat in the 2010 elections in Côte d’Ivoire, the Security Council passed Resolution 1975 (2011) calling for him to step down.

³⁰ ‘It is in principle a matter for each State to decide for itself its constitutional structure, and as a part of it the kind of head of State it will have, and the powers and functions attaching to the office’: Watts, ‘Head of State’, 21.

³¹ R v Bow Street Metropolitan Stipendiary, ex parte Pinochet Ugarte (Amnesty International Intervening) (No 3) [2000] 1 AC 147; [1999] 2 WLR 827; [1999] 2 All ER 97 at 146; 119 ILR 135.

³² The UK changed its policy in 1980 so as not to confer express recognition on governments as opposed to States.

³³ Ex King Farouk v Christian Dior, Paris Ct of Appeal, 11 April 1957, JDI (1957) 716; 24 ILR 228.

³⁴ Denza, Diplomatic Law (3rd edn, 2008), 8 supports this view.

³⁵ Samantar v Yousuf 130 Sup Ct 2282 at 2289 and 2291 confirmed that the FSIA did not codify the common law with respect to the immunity of individual government officials. See also First American Corpn v Sheikh Zayed bin Sultan Al-Nahyan 948 F.Supp.1107, 1119 (DDC 1996), 121 ILR 577; Alicog v Kingdom of Saudi Arabia 860 F.Supp.379, 382 (SD Texas 1994) aff’d 79 F.3d 1145 (5th Cir 1996); USA v Noriega 746 F.Supp.1506 (1990 Fla), 99 ILR 161.

³⁶ The Schooner Exchange v McFadden 11 US 116 (1812), (7 Cranch) (1812) 116.

³⁷ Wei Ye v Jiang Zemin 383 F.3d 620 (3rd Cir 2004) in which practitioners of Falung Gong sued the President of China, at the time of the commencement of proceedings, and the Falung Gong Control Office for alleged genocide and torture. The court deferred to the State Department’s suggestion that service of process on a head of State was often viewed by foreign governments as an affront to the dignity of both leader and the State; the visiting President of China was held immune and service on the Falung Gong Control Office through service on the President declared invalid.

³⁸ Djibouti v France, para 174.

³⁹ Canadian YBIL (1981) 325, Memorandum of the Legal Bureau of the Canadian Minister of Foreign Affairs, 31 January 1981. Swiss practice allows heads of States against whom charges of international crimes are pending in national tribunals freely to attend conferences in Switzerland, eg President Clinton and the Syrian president Hafaz-el Assad in 2000, and meetings at the annual Davos colloquium. Henzelin, ‘L’immunite’ pénale des chefs d’État en matière financière’ (20020 RSDIE 179 at 187.

⁴⁰ Mighell v Sultan of Johore [1894] 1 QB 149 (breach of promise of marriage); Harb v King Fahd Abdul Aziz [2005] 2 FLR 1108 (claim for maintenance as wife); Mumtaz v Ershad, NY Supreme Court unpublished Digest of US Practice 1989/89, 314–19; Aziz v Aziz and Sultan of Brunei [2007] EWCA Civ 712 (11 July 2007); JAM v Public Prosecutor, Netherlands Sup Ct, 21 January 1969, (1970) YBIL 222–73 (a scurrilous attack on a foreign head of State in the local press was held to violate the obligation to respect his dignity). Denza describes the removal of the banners of the Free Tibet campaign by the police on the occasion of a State visit to London by the Chinese president Jiang Zemin; the resulting proceedings in the English court for judicial review were settled.

⁴¹ Djibouti v France, para 175.

⁴² Djibouti v France, para 171–3. Nonetheless, the fact that the summons was faxed directly to the President (rather than being transmitted by the Minister for Foreign Affairs) and set an extremely short deadline meant that the French Judge who issued the summons had ‘failed to act in accordance with the courtesies due to a foreign Head of State’ and an apology was due.

⁴³ Aziz v Aziz and Sultan of Brunei [2007] EWCA Civ 712 (11 July 2007), per Sedley LJ at para 132. See further Ch 7 on UK law procedure.

⁴⁴ Judgment in Case C-364/10, Hungary v Slovakia, 16 October 2012.

⁴⁵ Aziz v Aziz and Sultan of Brunei, per Sedley LJ at paras 131–2.

⁴⁶ Ex King Farouk v Christian Dior, French Ct of Appeal, 11 April 1957; JDI (1957) 716; 24 ILR (1957) 228; Mobutu Ses Seko v Société Logrine, Clunet, 1995, 641, note Mahiou; Mobutu and Zaire v Société Logrine, 31 May 1994, French Ct of Appeal, 113 ILR 481.

⁴⁷ Swiss Fed Dept for Foreign Affairs in a statement declared that the head of State ‘bénéficie d’une immunité de juridiction penal absolue’, Ann Suisse de DI (1984) 183.

⁴⁸ Héritiers de L’Empéreur Maximilien de Mexique v Lemaître, French Ct of Appeal, 15 March 1972, Clunet I (1974) 32; Dalloz II (1873) 24, 15, 4, 1872[AQ: ok?]; Mellerio v Isabelle de Bourbon, French Ct of Appeal, 3 June 1872, Clunet I (1974) 33; Dalloz II (1872).

⁴⁹ AW v J(H) F v L (Head of State), Austria Supreme Ct, 15 February 2001.

⁵⁰ Nobili v Charles I of Austria, Ct of Cassation, Rome, 11 March 1921; JDI 48 (1921) 626; 1 ILR 136: ‘The present proceedings do not relate to acts done by the Emperor of Austria as head of his own State. The engagements in question have their origin in contracts and acts of a private nature which arose in Italy.’ Cf Elmiilik v Bey di Tunii, Clunet 15 (1888) 289.

⁵¹ See observations of the UK to the European Court of Human Rights in Association SOS Attentats and Anr v France, App No 76642/01/04.

⁵² See also Sayce v Ameer Ruler of Bahawalpur [1952] 2 QB 390, CA.

⁵³ De Haber v Queen of Portugal [1851] 17 QB 171 at 206–7.

⁵⁴ The Porto Alexandre [1920] 30 at 36–7.

⁵⁵ As regards such a ‘necessary modification’, see Apex Global v Fi Call Ltd & Ors [2013] EWHC 587 (Ch) per Vos J para.146, ‘section 20(1) of the SIA and article 31.1(c) of schedule 1 to the DPA must be construed, in the case of a sovereign or other head of State and members of his family forming part of his household and his private servants, as excluding immunity in the case of any action undertaken anywhere relating to any professional or commercial activity exercised by him outside his official functions’.

⁵⁶ Lafontant v Aristide 844 F.Supp.128, 132–3 (EDNY 1994); 103 ILR 581; Jungquist v Shaikh Sultan 940 F.Supp (DC 1996); 113 ILR 522: claimant injured in boating accident due to negligence of ruler’s son; court held it had jurisdiction to determine claim against son but the ruler was immune in respect of undertaking by son to pay for medical treatment in exchange for claimant’s silence.

⁵⁷ Immunity would probably bar a claim in respect of nuisance or other damage caused by use of immovable property in another State’s territory owned by a foreign head of State which is used for the head’s private purposes, although the VCDR, Art 31(1)(a) in respect of a diplomat and the UK SIA, s 6 in respect of the State itself would recognize an exception for such a claim.

⁵⁸ Jimenez v Aristeguieta 311 Fed Rep 2nd Ser 547 (1962) (Ct of Apps 5th Cir); 33 ILR 353.

⁵⁹ Arrest Warrant, para 54.

⁶⁰ Djibouti v France, para 170 (since there was no measure of constraint, the summonses did not infringe the immunity nor dignity of the head of State).

⁶¹ The UK Attorney-General stated that Saddam Hussein was immune form criminal proceedings in the UK while a serving head of State in Iraq, HL Deb, 27 January 2003, vol 643 cols 910–12, cited in (2003) 74 BYIL 670.

⁶² See authorities cited in Cassese, ‘The Belgian Court of Cassation v the International Court of Justice: The Sharon and Others Case’ (2003) 1 JCIJ 437 at 440. The Amsterdam Court of Appeal confirmed that ‘the prosecution of Pinochet by the Dutch Public Prosecutions Department would encounter so many legal and practical problems that the Public Prosecutor was perfectly within his rights to decide not to prosecute’, Chili Komitee Nederland v Public Prosecutor Netherland, Appeal Ct, Amsterdam, 4 January 1995; (1997) 28 Netherlands YBIL 363.

⁶³ Arrêt no 1414, 13 March 2001, Cass Crim No 1414, 1 at 2; Zappala argues that, while rejecting terrorism as a crime of sufficient gravity to remove immunity, the French Court implicitly acknowledged that there were some international crimes for which no functional immunity ratione materiae could be accorded. The author includes among these crimes: crimes against humanity, genocide, torture, and war crimes. In support of his argument he relies on the court’s statement: ‘en l’état du droit international, le crime dénonce, quel qu’en soit la gravité, ne releve pas des exceptions au principe de l’immunité de juridiction des chefs d’États étrangers en exercice’: Cass Crim No 1414, 1 at 3. Zappala (2001) 12 EJIL 595; Habré, Senegal, Court of Appeal of Dakar, 4 July 2000; Ct of Cassation, Dakar, 20 March 2001; 125 ILR 569; Mugabe Application for extradition warrant for Robert Mugabe, 14 January 2004 Bow Street, reported Warbrick, ‘Immunity and International Crimes’ (2004) 53 ICLQ 769. See also Re Honecker, FRG, Federal Supreme Court, 14 December 1984; 80 ILR 365.

⁶⁴ The Hague City Party and Ors v Netherlands and Ors, Interlocutory proceedings, KG 05/432; ILDC 849 (NL 2005).

⁶⁵ Wei Ye v Jiang Zemin 383 F.3d 620 (3rd Cir 2004); Tachiona v United States 386 F.3d 205 (2nd Cir 2004); Habyarimana v Kagame (10th Cir 2012) (decisions usually based on suggestions of immunity from the State Department).

⁶⁶ Re General Shaul Mofaz; Re Bo Xilai; UK Bow Street Magistrates’ Court, Re Mugabe (First instance) unreported decision (14 January 2004). In Pinochet (No 3), several Law Lords emphasized that Pinochet would have benefited from immunity if he had been the incumbent head of State at the time of the proceedings.

⁶⁷ Re Sharon and Yaron Final Appeal No p 02 1139 F/1 (Belgium Ct of Cassation 12 February 2003).

⁶⁸ Castro Case No 1999/2723 (Order) (Spain Audiencia Nacional 4 March 1999), cited in Antonio Cassese, International Criminal Law (2003), 272, n 20; Auto del Juzgado Central de Instruccion No 4 (Spain Audiencia Nacional) (6 February 2008), 151–7.

⁶⁹ United States v Noriega 117 F.3d 1206 (11th Cir 1997) (the United States did not recognize Noriega as the head of State so his immunity ratione personae did not arise); Special Prosecutor v Col Hailemariam and Ors ILDC 555 (Ethiopia 1995) (the prosecution was in the country of the accused person’s nationality so immunity did not arise).

⁷⁰ Jimenez v Aristeguieta; US v Noriega 746 F.Supp.1506 (Fla 1990); 99 ILR 143 (financial crimes committed by a former chief executive for his own benefit and drug offences committed by Noriega when head of Panama were construed as private acts for which no immunity survives).

⁷¹ Per Lord Browne-Wilkinson [1999] 2 All ER 97 at 111–13.

⁷² Such acts would seem today still to be a matter primarily for the State where they were committed. Thus a State official would enjoy immunity from criminal prosecution by the court of another State in respect of a death of an individual whilst under official interrogation in his home State even though the home State itself would be under obligation pursuant to the right to life under ECHR, Art 2 to conduct an official effective investigation by reason of its failure to protect life. Dominicé, ‘Quelques observations sur l’immunité de jurisdiction pénale de l’ancien chef d’Etat’ (1999) RGDIP 304–5.

⁷³ Per Lord Browne-Wilkinson [1999] 2 All ER 97 at 112–14.

⁷⁴ Arrest Warrant of 11 April 2000 (Democratic Republic of Congo/Belgium), Judgment Preliminary Objections and Merits, ICJ Reports 2002, (2002).

⁷⁵ Gaeta, ‘Ratione materiae immunities of former heads of State and international crimes; The Hissène Habré case’, 186.

⁷⁶ See the Resolution of the 13th Committee of the Institut de Droit International Art 13, which provides that a former head of State shall enjoy immunity for acts committed in the course of official duties but shall be subject to prosecution for acts which constitute personal participation in an international crime (2000–1) 69 ADI 742.

⁷⁷ Cassese, International Criminal Law, 853.

⁷⁸ Arrest Warrant of 11 April 2000 (Democratic Republic of Congo/Belgium), Judgment Preliminary Objections and Merits; 14 February 2002; ICJ Reports 2002; 41 ILM 536 (2002).

⁷⁹ Akande, ‘The Application of International Law Immunities in Prosecutions of International Crimes’ in Harrington, Milde, and Vernon (eds), Bringing Power to Justice? The Prospects of the International Criminal Court (2006), 47.

⁸⁰ See Ch 4 on immunity from criminal jurisdiction.

⁸¹ Jones v Minister of the Interior of the Kingdom of Saudi Arabia and Anr (Secretary of State for Constitutional Affairs and Others Intervening) Mitchell and Ors v Al-Dali [2006] UKHL 26; [2006] 2 WLR 1424 at para 87.

⁸² See 2009 Naples Resolution of the Institut de droit international, Art III(3) on the separation of immunity ratione personae from attribution.

⁸³ See Ch 4.

⁸⁴ This may also apply to other international courts, depending on the terms of their constitutive instruments.

⁸⁵ See also Fox, ‘The Institut’s Resolution on Immunities from Jurisdiction and Execution of Heads of States and of Governments in International Law’ (2002) 51 ICLQ 119; (2000–1) 69 ADI 742.

⁸⁶ Arrest Warrant, para 61.

⁸⁷ Charter of the International Military Tribunal at Nuremberg, Art 7; ICTY Statute, Art 7(2); ICTR Statute, Art 6(2). See also Art 7 of the ILC, ‘1996 Draft Code of Crimes against Peace and Security of Mankind’ YBILC 1996 II. Since the Allies decided not to prosecute the Japanese emperor after the Second World War, Art 6 of the Charter of the Tokyo Tribunal does not explicitly provide that a person’s position as head of State may not be relied upon in exempting individual responsibility: Dapo Akande, ‘International Law Immunities and the International Criminal Court’ (2004) 98 AJIL 407, 417 n 68.

⁸⁸ Arrest Warrant Judgment, para 61.

⁸⁹ The Statute of the Special Tribunal for Lebanon (STL) is silent as to official capacity altogether and the Tribunal will thus have to decide this issue in accordance with customary international law. Schabas, ‘The Special Tribunal for Lebanon: Is a “Tribunal of an International Character” Equivalent to an “International Criminal Court”?’ (2008) 21 LJIL 513, 526.

⁹⁰ They proposed ‘the establishment of a high tribunal composed of judges drawn from many nations, and included the possibility of the trial before that tribunal of a former head of State with the consent of the State itself secured by the articles in the Treaty of Peace. If the immunity of a sovereign is claimed to extend beyond the limits above stated, it would involve laying down the principle that the greatest outrages against the laws and customs of war and the laws of humanity, if proved against him, could in no circumstances be punished. Such a conclusion would shock the conscience of mankind’. The US members of the Commission dissented on the ground that a judicial tribunal was not a proper forum for the trial of offences of a moral nature; and to the ‘unprecedented proposal’ to put on trial before an international criminal tribunal the heads of States not only for having directly ordered illegal acts of war but also from having abstained from preventing such acts. This would be contrary to the doctrine of immunity of sovereigns from trial and punishment by a foreign jurisdiction as laid down by Chief Justice Marshall in The Schooner Exchange. See Garner, ‘Punishment of Offenders Against the Laws and Customs of War’ (1920) 14 AJIL 70 at 90–3.

⁹¹ It is a disputed question whether mandatory decisions of the Council also prevail over customary international law; the Council’s decisions have had regard to humanitarian and human rights requirements: Gowland Debbas, ‘Security Council Enforcement and Issues of State Responsibility’ (1994) 43 ICLQ 55 at 91–4.

⁹² Prosecutor v Charles Ghankay Taylor (Decision on Immunity from Jurisdiction) SCSL-2003-01-I, A Ch (31 May 2004) paras 50–3. The SCSL did not address the question of whether a treaty-based court (as opposed to a court established pursuant to Ch VII of the UN Charter) may remove immunity ratione personae of third states’ officials: Micaela Frulli, ‘The Question of Charles Taylor’s Immunity: Still in Search of a Balanced Application of Personal Immunities?’ (2004) 2 JICJ 1118.

⁹³ Council of Europe Report on Constitutional Issues Raised by the Ratification of the ICC, adopted by the Commission at its 45th Plenary meeting, Venice, 15–16 December 2001 and national legislation annexed thereto.

⁹⁴ See the debate between Paola Gaeta and Dapo Akande: Gaeta, ‘Does President Al Bashir Enjoy Immunity from Arrest?’ (2009) 7 JICJ 315; Akande, ‘The Legal Nature of Security Council Referrals to the ICC and its Implications on Al Bashir’s Immunities’ (2009) 7 JICJ 333.

⁹⁵ Article 98(2) provides a similar restriction where the court’s request would require the requested State, by the surrender of a person present in its territory from a sending State, to ‘act inconsistently with its obligations under international agreements’, unless the Court can first obtain the co-operation of the sending State for the giving of consent to the surrender of such person.

⁹⁶ As, for instance, in English law the bar against criminal proceedings against the monarch in her private capacity. See the International Criminal Court Act 2001, Cryer, (2002) 51 ICLQ 733.

⁹⁷ Chile, Sup Ct, 21 September 2007, the Guardian, 22 September 2007.

⁹⁸ Arrest Warrant, para 61.

⁹⁹ Gaeta, ‘Ratione Materiae Immunities of Former Heads of State and International Crimes; The Hissène Habré case’ (2003) 1 JICJ 186 at 194; Cassese, ‘The Belgian Court of Cassation v the International Court of Justice: The Sharon and Others Case’, 452.

¹⁰⁰ P Webb, International Judicial Integration and Fragmentation (2013), Ch 3. Prosecutor v Omar Al Bashir (Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir) ICC-02/05-01/09, P-T Ch I (4 March 2009), paras 41–5. Prosecutor v Omar Hassan Ahmad Al Bashir (Decision Pursuant to Art 87(7) of the Rome Statute) ICC-02/05-01/09, P-T Ch I (12 December 2011), para 43.

¹⁰¹ Prosecutor v Omar Hassan Ahmad Al Bashir (Decision Pursuant to Article 87(7) of the Rome Statute) ICC-02/05-01/09, P-T Ch I (12 December 2011), para 43.

¹⁰² UNSC Res 1593 (31 March 2005) UN Doc S/Res/1593.

¹⁰³ Akande observes that the majority view among writers in that obligations under the Charter should be regarded as taking priority over customary international law given the nature of the Charter as a ‘constitutional’ document: Akande, ‘Security Council Referrals’, 348.

¹⁰⁴ VCDR, Arts 29, 31; Convention on Special Missions, Art 31(1); 1975 Vienna Convention on the Representation of States in Their Relations with International Organizations of a Universal Character (adopted 14 March 1975, not yet in force), Art 30.

¹⁰⁵ The Institut de droit international, ‘2001 Vancouver Resolution’ made no mention of Ministers for Foreign Affairs (Art 2). Article 3(2) cf American Law Institute, Restatement (Second) of Foreign Relations Law of the United States (1962), 200–2, which states heads of government and Ministers for Foreign Affairs enjoy the same immunity as heads of State.

¹⁰⁶ See generally, Webb, International Judicial Integration and Fragmentation (2013), Ch 3.

¹⁰⁷ Arrest Warrant Judgment, para 84 (Joint Separate Opinion).

¹⁰⁸ Arrest Warrant Judgment, para 53. See also the Institut de droit international, ‘2001 Vancouver Resolution’ preamble; ILC, ‘Draft Articles on Jurisdictional Immunities of States and their Property, with commentaries’ II YILC 1991 (1991) para 19.

¹⁰⁹ The Institut’s Resolution on Immunities of Heads of State and of Heads of Government, in extending its provisions to a head of government, provides that this provision is without prejudice to immunities to which other members of the government may be entitled on account of their office (Art 15(2)).

¹¹⁰ Akande and Shah, ‘Immunities of State Officials, International Crimes and Foreign Domestic Courts’, 825.

¹¹¹ Armed Activities on the Territory of the Congo (Democratic Republic of the Congo/Rwanda), ICJ Jurisdiction and Admissibility of the Claim, ICJ Reports 2006, para 47.

¹¹² ICJ Reports 2008, paras 185–6.

¹¹³ ICJ Reports 2008, para 194. The Court did not address the immunity ratione personae argument in detail because Djibouti reformulated its claims (para 187).

¹¹⁴ Djibouti v France Judgment, para 196.

¹¹⁵ Evgeny Adamov v Federal Office of Justice, Switzerland Federal Tribunal, First Public Law Chamber, No 1A.288/2005, Judgment of 22 December 2005, para 3.4.2. (in obiter dictum).

¹¹⁶ re Mofaz, 12 February 2004; re Bo Xilai, 8 November 2005, England Bow Street Magistrates’ Court; 128 ILR 709 and 713. Warbrick, ‘Immunity and International Crimes’ (2004) 53 ICLQ 769.

¹¹⁷ Khurts Bat v The Investigating Judge of the German Federal Court [2011] EWHC 2029 (Admin); (2012) 147 ILR 633, paras 55–62 (Moses LJ).

¹¹⁸ Arrest Warrant, para 58.

¹¹⁹ Arrest Warrant, para 89, Joint Separate Opinion.

¹²⁰ See below on immunity ratione materiae and international crimes.

¹²¹ A contre Ministère Public de la Confédération, B, C (2012) B.2011.140 (Federal Criminal Court of Switzerland) para 5.4.3, para 5.3.5. Pinochet (No 3) was cited. Algeria did not invoke immunity on his behalf. For an evaluation of national litigation that concludes most cases relied upon to demonstrate a human rights exception to immunity actually says nothing about immunity, see Wuerth, ‘Pinochet’s Legacy Reassessed’ (2012) 106 AJIL 731.

¹²² Wood, ‘The Immunity of Official Visitors’, in von Bogdandy and Wolfrum (eds), (2012) 16 Max Planck Yearbook of United Nations Law 35, 38.

¹²³ A sticking point was what the UK saw as the broader scope of the term ‘special mission’ in the Convention. It preferred the term to be construed as being dependent on the consent of the government to the mission being treated as a special mission: Wood, ‘The Immunity of Official Visitors’, 84ff.

¹²⁴ Wood, ‘The Immunity of Official Visitors’, 51. See, in general, Kalb, ‘Immunities, Special Missions’ (2012) MPEPIL and Wickremasinghe, ‘Immunities Enjoyed by Officials of States and International Organizations’ in Evans (ed), International Law (2010), 390.

¹²⁵ Wood, ‘The Immunity of Official Visitors’, 60.

¹²⁶ Arrest Warrant, para 52; Djibouti v France, para 194 (Djibouti raised special mission immunity in its Memorial, but later dropped the argument).

¹²⁷ Brownlie’s International Law (2012), 414.

¹²⁸ Wood, ‘The Immunity of Official Visitors’, 65.

¹²⁹ Wood, ‘The Immunity of Official Visitors’, 68.

¹³⁰ Khurts Bat, paras 27 and 29 (Moses LJ).

¹³¹ In the UK an FCO certificate would be issued. Wood, ‘The Immunity of Official Visitors’, 70–1. The consent may not necessarily be given in advance: Tabatabai case in German Federal Supreme Court (Criminal Chamber), BGHSt 32 (1984).

¹³² Wood, ‘The Immunity of Official Visitors’, 72–3.

¹³³ Quoted in Wood, ‘The Immunity of Official Visitors’, 92 n 176.

¹³⁴ The DPP acted under s 1(4A)(1) of the Magistrates’ Courts Act 1980 (c 43) inserted by s 153 of the Police Reform and Social Responsibility Act 2011 (c 13). Section 153, which came into force on 15 September 2011, passed the power to issue universal jurisdiction warrants to the DPP from individual magistrates following an incident in 2009 when a warrant was issued for Ms Livni by Westminster Magistrates’ Court, leading to protests by Israeli Prime Minister Benjamin Netanyahu.

¹³⁵ Wood, ‘The Immunity of Official Visitors’, 93.

¹³⁶ Khurts Bat v The Investigating Judge of the German Federal Court [2011] EWHC 2029 (Admin), (2012) 147 ILR 633.

¹³⁷ Written Ministerial Statement (William Hague), House of Commons, 4 March 2013.

¹³⁸ Diplomatic missions may seek in advance clarification of whether or not the UK consents to a particular visit as a special mission. They are invited to provide: the visitor’s full name and title; the visitor’s role, or function; full details of any accompanying delegation; the duration of the visit; and the reason for the visit, including an explanation of any official element.

¹³⁹ Wood, ‘The Immunity of Official Visitors’, 16 Max Planck Yearbook of United Nations Law 35 (2012), n 144.

¹⁴⁰ Letter of 19 October 2011; House of Representatives, 2011–12 session, 33000 V, no 9.

¹⁴¹ Letter of 26 April 2012 from the Minister of Foreign Affairs and the State Secretary for Security and Justice to the Senate and the House of Representatives on the immunity of members of foreign official missions.

¹⁴² Wood, ‘The Immunity of Official Visitors’, 97.

¹⁴³ Restatement (Third) of Foreign Relations Law of the United States, 1987, vol 1, para. 464 cmt i.

¹⁴⁴ Kilroy v Charles Windsor, Prince of Wales, Civ No C-78-291 (ND Ohio 1978); Li Weixum v Bo Xilai DCC Civ No 04-0649 (RJL).

¹⁴⁵ Prosecutor v Blaskic (Judgment on the Request of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997) IT-95-14-A, A Ch (29 October 1997) para 38 (hereinafter Blaskic Appeals Decision).

¹⁴⁶ See Hans Kelsen, Principles of International Law (ed RW Tucker) (2nd edn, 1966). 358.

¹⁴⁷ See eg Blaskic Appeals Decision, para 38; Pinochet (No 3) [594] (Lord Browne-Wilkinson), [606] (Lord Goff), [644] (Lord Millet), [657] (Lord Phillips); Evgeny Adamov v Federal Office of Justice, para 3.4.2.

¹⁴⁸ Blaskic Appeals Decision, para 38. It is unclear whether the Tribunal distinguished attribution of responsibility to the State under international law and the conferment of immunity on the individual. Recognizing this problem, members of the ILC have suggested that instead of attempting to establish a list of officials for the purposes of immunity ratione materiae, attention should be given to the act itself: ILC, Report on the work of its sixty-fourth session (7 May to 1 June and 2 July to 3 August 2012) A/67/10 (2012), para 119.

¹⁴⁹ Twycross v Dreyfus (1877) 5 Ch D 605.

¹⁵⁰ Samantar v Yousuf 130 Sup Ct 2278 (2010) at 2287.

¹⁵¹ Samantar v Yousuf 130 Sup Ct 2278 (2010) at 2288.

¹⁵² Samantar v Yousuf 130 Sup Ct 2278 (2010) at 2289.

¹⁵³ ILC Immunity of State Officials from foreign criminal jurisdiction: memorandum by the Secretariat 31 March 2008 A’CN.4/596, paras 190-207. See also Wuerth (2012) 106 AJIL 731.

¹⁵⁴ See the prosecutions referred to in Foakes, ‘Immunity for International Crimes: Developments in the law of prosecuting Heads of State in foreign courts’ Chatham House, Briefing paper, November 2011, fnn 54–6.

¹⁵⁵ Paragraph 61 of the judgment 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’.

¹⁵⁶ Joint Separate Opinion, para 85. In addition to Congreso del Partido (1978) QB 500 per Goff LJ 528 and (1983) AC 244 per Lord Wilberforce at 268, respectively, and ex parte Pinochet, the separate opinion cited in support Andrea Bianchi, ‘Denying State Immunity to Violators of Human Rights’ (1994) 46 Austrian J of Public and Int Law 227–8 and the judgment of the Court of Appeal of Amsterdam in the Bouterse case (Gerechtsh of Amsterdam, 20 November 2000, para 4.2).

¹⁵⁷ Verhoeven, Provisional Report in ADI 69 (2000–01), 514; authorities cited in ILC Memo, 129, fn 541.

¹⁵⁸ Preliminary report on immunity of State officials from foreign criminal jurisdiction (Doc A/CN.4/601, 29 May 2008); Second report on immunity of State officials from foreign criminal jurisdiction (Doc A/CN.4/631, 10 June 2010); Third report on immunity of State officials from foreign criminal jurisdiction (Doc A/CN.4/646, 24 May 2011). The UN Secretariat also produced a useful Memorandum on Immunity of State officials from foreign criminal jurisdiction (Doc A/CN.4/594, 31 March 2008).

¹⁵⁹ ILC, Report on the work of its 64th session (7 May to 1 June and 2 July to 3 August 2012) A/67/10 (2012) para 88.

¹⁶⁰ ILC, Report on the work of its 64th session (7 May to 1 June and 2 July to 3 August 2012) A/67/10 (2012) paras 123–31.

¹⁶¹ See, especially, Second Report on Immunity of State officials from foreign criminal jurisdiction, 10 June 2010, A CN.4/ 631, paras 56 et seq.

¹⁶² ILC Report 58th Session 2006, Ch XIII, Fragmentation of International Law, 420, paras 32–3.

¹⁶³ At para 93.

¹⁶⁴ Obligation to Prosecute or Extradite (Belgium v Senegal) ICJ Reports 2012, paras 5 and 122 (i) and (ii). Judge Abraham Separate Opinion. The absence of authoritative guidance as to the customary international law has resulted in the UNGA Resolution 66/103 of 2011 setting up a Working Group of the Sixth Committee to undertake a thorough discussion of the scope and application of universal jurisdiction.

¹⁶⁵ See Princeton Principles on Universal Jurisdiction.

¹⁶⁶ Akande and Shah, ‘Immunities of State Officials, International Crimes, and Foreign Domestic Courts’ (2011) 21 EJIL 815, 843. They apply this approach to torture, enforced disappearance and war crimes in an international armed conflict. 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 (at 846) cf Wuerth.

¹⁶⁷ Akande and Shah, ‘Immunities of State Officials, International Crimes, and Foreign Domestic Courts’, 846.

¹⁶⁸ For example, in time of peace acts of espionage, sabotage, kidnapping committed by a State official in the territory of another State, without consent, violate international law and entitle the territorial victim State to prosecute the individual spies.

¹⁶⁹ Khurts Bat v The Investigating Judge of the German Federal Court and Others [2011] EWHC 2029 (Admin).

¹⁷⁰ Franey, Immunity, Individuals and International Law (2011).

¹⁷¹ Khurts Bat, paras 90–101.

¹⁷² Jurisdictional Immunities, para 91.