what does it mean to be head of state

Norman Patrick Brown'southward immunity from prosecution guild in exchange for his testimony in Leonard Peltier's criminal trial

Amnesty from prosecution is a doctrine of international law that allows an accused to avert prosecution for criminal offences. Immunities are of two types. The commencement is functional immunity, or immunity ratione materiae. This is an immunity granted to people who perform certain functions of country. The 2nd is personal immunity, or amnesty ratione personae. This is an amnesty granted to sure officials considering of the office they hold, rather than in relation to the deed they take committed.

Functional immunity [edit]

Functional immunity arises from customary international police and treaty law and confers immunities on those performing acts of state (usually a foreign official). Any person who, in performing an human action of state, commits a criminal offence is allowed from prosecution. That is then even after the person ceases to perform acts of state. Thus, it is a type of immunity limited in the acts to which it attaches (acts of country) only ends just if the country itself ceases to exist. The immunity, though practical to the acts of individuals, is an attribute of a state, and it is based on the common respect of states for sovereign equality and state nobility. States thus have a pregnant interest in upholding the principle in international affairs: if a state's officials are to be tried at all for anything, information technology will be at home.

Land offices usually recognised every bit automatically attracting the immunity are the head of state or the head of authorities, senior chiffonier members, ambassadors and the strange and defence ministers.^[a] Many countries take embodied the immunities in domestic police force.^[b]

States regularly assert that every official interim in an official capacity is immune from prosecution past foreign regime (for non-international crimes) under the doctrine of ratione materiae.^[c] Such officers are immune from prosecution for everything they do during their time in office. For example, an English court held that a warrant could not be issued for the arrest of Robert Mugabe on charges of international crimes on the ground that he was serving as head of country at the time that the proceedings were brought.^{[ii] [three]} Other examples are the attempts to prosecute Fidel Castro in Spain and Jiang Zemin in the US.

Still, once the defendant leave their offices, they are immediately liable to be prosecuted for crimes committed earlier or after their term in part, or for crimes committed in a personal capacity whilst in office (bailiwick to jurisdictional requirements and local police force).

It may be the case that functional immunity is itself being eroded. Recent developments in international police advise that ratione materiae may remain available as a defence force to prosecution for local or domestic crimes or civil liability, simply it is non a defence to an international criminal offence. (International crimes include crimes against humanity, war crimes, and genocide.)

The indictment in 1998 in Spain (and subsequent arrest in the Great britain) of Chile's Pinochet was a landmark determination by European judges and the Great britain'due south Firm of Lords, which ready bated functional besides as local immunities,^[d] by ruling that the crimes Pinochet was accused of cruel within the scope of the United Nations Convention against Torture, being international crimes so heinous that they are:

• bailiwick to universal jurisdiction (i.e. he could validly be indicted in Kingdom of spain, held in custody in the UK on foot of an international arrest warrant so extradited to Spain for trial, for acts that were committed mainly in Chile on the nationals of several countries);
• absolutely prohibited (there can be no exceptions whatsoever to the prohibitions); and
• responsibleness cannot be derogated (no excuses whatsoever or amnesty under any circumstances).

The principle of depriving immunity for international crimes was developed further in the jurisprudence of the International Criminal Tribunal for the One-time Yugoslavia, peculiarly in the Karadzic, Milosevic, and Furundzija cases (but care should be taken when considering ICTY jurisprudence due to its ad-hoc nature). This was as well the agreed position as between the parties in their pleadings in the International Courtroom of Justice instance concerning the arrest warrant of 11 Apr 2000 (Democratic republic of the congo v. Belgium).

In 2004 the Appeals Chamber of the Special Court for Sierra Leone held that indicted Liberian president Charles Taylor could not invoke his head of state immunity to resist the charges against him, even though he was an incumbent head of state at the fourth dimension of his indictment. However, this reasoning was based on the construction of the court's constituent statute, that dealt with the affair of indicting state officials. In whatsoever instance, Taylor had ceased to exist an incumbent head of state past the fourth dimension of the court's decision so the arresting regime would take been free to issue a fresh warrant had the initial warrant been overturned. Even so, this decision may signal a changing direction in international law on this effect.^{[ original research? ]}

It is worth noting that the decisions of the Spanish and United kingdom of great britain and northern ireland courts in relation to Pinochet were based direct on existing domestic police force, which had been enacted to embody the obligations of the treaty. Although a state party to the treaty, Chile itself had not enacted such laws, which ascertain the specified international crimes as crimes falling inside the domestic criminal code and making them subject to universal jurisdiction, and thus Chile could only prosecute on the basis of its existing criminal lawmaking – murder, abduction, assault etc., just non genocide or torture.

The reasons commonly given for why this immunity is non available as a defense to international crimes is direct forrard:

1. that genocide, war crimes and crimes against humanity are not acts of country. Criminal acts of the blazon in question are committed by man actors, not states; and
2. we cannot allow the jus cogens nature of international crimes, i.e. the fact that they are non-derogable norms, to exist eroded by immunities.

However, the last judgment of the ICJ regarding amnesty may take thrown the beingness of such a dominion limiting functional immunities into dubiety. Come across in this respect the criticism of the ICJ's approach past Wouters, Cassese and Wirth among others, though some such as Bassiouni claim that the ICJ affirmed the beingness of the rule.

Regarding claims based on the thought that a senior state official committing International crimes can never be said to be acting officially, every bit Wouters notes: "This argument, however, is not waterproof since information technology ignores the sad reality that in nigh cases those crimes are precisely committed by or with the support of high-ranking officials equally office of a state's policy, and thus tin can fall within the scope of official acts." Bookish stance on the affair is divided and indeed but the future development of International Customary law, perhaps accelerated by states exercising universal jurisdiction over retired senior land officials, volition be able to confirm whether land sovereignty has at present yielded partially to internationally held man rights values.

In November 2007, French prosecutors refused to press charges against former Usa Secretary of Defense Donald Rumsfeld for torture and other alleged crimes committed during the course of the US invasion of Iraq, on the grounds that heads of country, heads of government and foreign ministers all enjoyed official immunity under customary international police, and they further claimed that the immunity exists later on the official has left office.^[5] Even so, other jurists concord that heads of country and land officials still can be prosecuted by foreign courts after the end of their terms of office.^{[6] [7]}

Personal immunity [edit]

Personal immunity arises from customary international law and confers amnesty on people holding a particular office from the civil, criminal, and administrative jurisdiction. Information technology is extended to diplomatic agents and their families posted abroad and is also valid for their transfer to or from that post, only for the country to which they are posted. Nether personal amnesty, individual residence, papers, correspondence, and property of an official enjoying personal immunities are inviolable.

According to Cassese (2005), personal immunities are extended to cover personal activities of an official, including immunity from abort and detention (but the host state may declare the person persona non grata), immunity from criminal jurisdiction, amnesty from the ceremonious and administrative jurisdiction of the host country. No immunities hold for private immoveable property unless information technology is held on behalf of the sending state for the purposes of the mission, issues of succession, professional person or commercial action exercised outside of official functions, or the official has voluntarily submitted to the proceedings. Personal immunities cease with the cessation of the mail.

Information technology is not for the official's personal benefit only is based on the need for states to function effectively and thus not be deprived of their most important officials.

Cases of overlap [edit]

When a person leaves office who is nether a personal immunity and has committed a criminal deed covered also by functional amnesty, the personal amnesty is removed, as usual.

That is what happened in the Augusto Pinochet instance before the House of Lords. Senator Pinochet was able to exist extradited to face just charges non under functional immunity and coming together the split up tests for extradition, nether English law.

Footnotes [edit]

1. ^ See the Abort Warrant of 11 Apr 2000 case and R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet)
2. ^ For example, the U.k.'s Diplomatic Privileges Act 1964 and State Immunity Human activity 1978
3. ^ Every bit of April 2016, a electric current prominent instance of use of the defence is in the case taken by Italy against India under the Law of the Bounding main^[1] seeking to prevent the Indian regime from prosecuting two Italian marines in connectedness with an incident which took place outside India's territorial waters but within its EEZ that resulted in the death of two Indian fishermen.
4. ^ States may find ways effectually domestic immunity if they want to. In Republic of chile, the junta had passed an amnesty law during Pinochet'south term in office. On his return to Chile in 2000 (he was released from the U.k. on health grounds), he was indicted there as co-author of the crimes of aggravated abduction and of beginning-degree murder. After unsuccessful appeals which reached the Supreme Court, his asserted functional immunity under the immunity police force of 1978, either as head of country or as a parliamentarian, was lifted and the indictment proceeded. Soon after his return from the UK, the Constitution of Republic of chile was amended to include an immunity clause (and alimony) for the newly-created category of "ex-presidents", on condition they resigned their position as senator-for-life. Pinochet was granted amnesty on the initial charges on the grounds of diminished mental capacity, a ruling that was overturned in 2004 when evidence to the contrary (a television receiver interview with a Miami station) was presented to the courtroom, and he was placed under house arrest pending trial. Pinochet never faced trial in court for his alleged crimes considering of various health conditions. However, after 2004, his immunity was challenged and removed in well-nigh indictments against him. At the time of his death, nether house arrest, in 2006, in addition to the existing indictments, for fiscal crimes equally well as crimes of violence, he was facing at least 177 criminal complaints^[4] concerning allegations of human rights offenses.

Come across also [edit]

• Amnesty police force
• Command responsibleness
• Diplomatic amnesty
• Extradition
• International law
• Jurisdiction
• State amnesty

References [edit]

1. ^ Italy versus India, PCA example no. 2015-28
2. ^ Mugabe, reported at (2004) 53 ICLQ 789
3. ^ "Mugabe abort bid fails". The Guardian.
4. ^ "Pinochet charged with kidnapping". BBC News. December ane, 2000.
5. ^ "French prosecutors throw out Rumsfeld torture instance". Reuters. November 23, 2007.
6. ^ Pedretti, Ramona (2015). "Immunity of Heads of Land and State Officials for International Crimes". Developments in International Law. Brill Nijhoff. 69. ISBN9789004287761. ISSN 0924-5332.
7. ^ Akande, Dapo; Shah, Sangeeta (2010). "Immunities of state officials, international crimes, and strange domestic courts". European Journal of International Constabulary. 21 (4): 815–852. doi:10.1093/ejil/chq080.

Cases

• In Re Pinochet (1999) 93 AJIL 690
• R 5 Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet (Nos 1 & three), [2000] 1 Air-conditioning 147
• Arrest Warrant of eleven Apr 2000 case (Democratic republic of the congo v Belgium), ICJ Rep, 2002

Commentary

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

External links [edit]

• "French prosecutors throw out Rumsfeld torture case". Reuters.com. November 23, 2007.

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Source: https://en.wikipedia.org/wiki/Immunity_from_prosecution_(international_law)

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