In these recent days, violent fights and bloody attempts to tame down rebellions in Northern Africa have become the breaking news of all the newspapers. The Western Powers seem more and more leaning towards an intervention in these countries in order to prevent wicked and violent reactions from the contested regimes: an intervention in Libya, where the contestations are sweeping around the country and the Gadhafi power seems less inclined to give in, has been envisaged by both the US and the EU. However, several concerns about the legality of this international intrusion have been evoked recently.
As Lord Millett in Holland v. Lampen-Wolfe puts it “State immunity . . . is a creature of customary international law and derives from the equality of sovereign states”: this doctrine, nowadays wholly accepted as an international custom norm, finds it roots from the Roman maxim “par in parem non habet imperium” which means that the principles of equality, independence and dignity of states prevents one state from judging over the other.
However, this immunity can be considered in two different ways: immunity over the acts of a state, considered as a community, or immunity over the acts of a personality exercising sovereign powers. In both cases, it is important to remember that, as Hazel Fox QC states[1], “State immunity is a procedural rule going to the jurisdiction of a national court. … it merely diverts any breach of it to a different method of settlement”. This means that a distinction concerning the immunity from jurisdiction, which is a procedural rule, has to be made from impunity in respect of any crimes, which is a matter of substantial law.In this paper, I will focus on the issue of the immunity from jurisdiction of both a national court or an international tribunal of persons exercising sovereign powers and concerning core international crimes. Indeed, while the immunity doctrine dealing with state’s acts immunities in general or mere civil matters follows the doctrine of relative immunity, which is now enshrined in both the 1972 European Convention on State Immunity and the 2004 UN Convention on Jurisdiction and Immunity of States and their Property, the Immunity of High ranking officials from international core crimes is still under debate and needs to be analyzed in more depth.
As a logical consequence of what I’ve already said, state immunities extends to the high ranking officials of that state, for “the foreign states’ right to immunity cannot be circumvented by suing its servants or agents”[2]. Furthermore, this immunity can be broken down into two different aspects:
- The immunity ratione personae, which prevents a person from being sued in a national or international tribunal because of the mere fact of exercising a sovereign function of a state. This complete immunity aims at preventing any external interference from hindering the performance of his/her duties and usually covers both civil and criminal acts.
- The immunity ratione materiae, on the other hand, covers the acts of an high ranking official with the exception of acts of “private capacity”. The justification is that, in merely complying with the state’s will, the person cannot be held liable for these acts. This type of immunity of course extends beyond the end of the official’s mandate.
Moreover, the doctrine of state immunity shouldn’t be confused with those of “act of state” or “non-justiciability” which can be found in the UK and US domestic jurisprudence. According to the former, a national court will not question a legislative or any other act of a foreign state with effects in that state’s territory, while the latter one deals with the restraint of those courts from adjudicating upon the transactions of foreign states.
All in all, the main question which I would like to tackle in this paper is to what extent state immunity can be opposed in a judgment concerning core international crimes. I will try to give an answer by dealing first of all with national courts and the restrictions which are imposed on their jurisdiction and secondly with the different international tribunal, which, for the first time, have extensive jurisdiction over international core crimes.
