Immunity for International Crimes?

Developments in the Law on Prosecuting

Heads of State in Foreign Courts
Joanne Foakes
International Law Programme | November 2011 | IL BP 2011/02

Summary points
zz International courts do not have the capacity to prosecute all international crimes

committed anywhere in the world.

zz Attempts in domestic courts to prosecute high-level foreign state officials for
international crimes have generally ended in failure. But there have been some
convictions of more junior officials for torture and crimes against humanity.
zz State officials are generally entitled to continuing immunity from foreign court
proceedings for acts performed in their official capacity.
zz The practice of some courts and a substantial amount of commentary suggest
that immunity does not apply to criminal prosecution of former officials for
international crimes committed while they were in office, but the exact limits of
this exception to immunity are not clear. There remains a tension between the
requirements of justice and the need to conduct international relations smoothly
and effectively.
zz The International Law Commission of the UN is working on the subject but it is
uncertain whether it will help resolve the current uncertainties in a way that reflects
the delicate balance of interests in play.

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briefing paper

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Immunity for International Crimes?

Introduction

by victims, non-governmental organizations (NGOs),

The notion that individuals may be criminally respon-

human rights lawyers and others to bring former leaders

sible for certain acts that constitute international crimes

to account for international crimes2 committed while in

under international law, regardless of the law of their

office, and was seen as signalling an end to the impunity

own state, is now well recognized. Furthermore, over the

they formerly enjoyed. The decision spawned an extensive

last decade several leaders and former leaders have been

literature (mainly within Europe). Generally speaking,

charged and, in some cases, prosecuted and convicted,

the writers concerned, although often differing in their

by international courts for international crimes. Charles

view as to the underlying rationale for an exception to

Taylor, the former president of Liberia, is awaiting judg-

immunity, were certain that it is now well accepted that

ment before the Special Court for Sierra Leone for war

such an exception has emerged.3 More recently, however,

crimes and crimes against humanity committed during

the International Law Commission (ILC), which included

the conflict in Sierra Leone; Jean Kambanda, Rwandas

the topic Immunity of state officials from foreign criminal

former prime minister, was convicted of international

jurisdiction in its work programme in 2007, has struck a

crimes before the International Tribunal for Rwanda;

more cautious note.4

Serbias former president Slobodan Milosevic was prosecuted before the International Criminal Tribunal for the
Former Yugoslavia (ICTY) for war crimes and crimes

The International Law Commission

against humanity; President Omar al-Bashir of Sudan is

The ILC is composed of 34 international law experts

subject to an arrest warrant by the International Criminal

from numerous jurisdictions who sit in a personal

Court (ICC) for war crimes, crimes against humanity and

capacity and not as representatives of governments.

genocide; and most recently the ICC has issued an arrest

The purpose of the ILC is to promote the progressive

warrant for Libyas Muammar Gaddafi for crimes against

development of international law and its codifica-

humanity.

tion. A distinction is made between the former as

These international courts are purpose-built for the

meaning the preparation of draft conventions on

prosecution of such crimes that are, by their very nature,

subjects which have not yet been regulated by inter-

often committed by state officials in pursuance of state

national law or in regard to which the law has not

policy. Most immunities to which such officials are

been sufficiently developed in the practice of states

entitled under international law have been set aside in the

and codification, which consists of the more precise

statutes establishing the international courts concerned

formulation and systematization of rules of interna-

so that prosecutions may proceed unconstrained by such

tional law where there has already been extensive

obstacles. However, the position with regard to immuni-

state practice, precedent and doctrine. In practice,

ties before national courts is less clear.

the work of the ILC usually involves aspects of both

The judgment of the UK House of Lords in Pinochet

development and codification.

(No. 3)1 was hailed by many as a new dawn in the struggle

1 R v Bow Street Magistrates Court ex parte Pinochet (No. 3) [2000] AC 147.

2 The term international crimes is used here to refer to crimes recognized by international law itself, which impose criminal responsibility directly on individuals.
In most cases they are the subject of specific conventions that define the offence and create a framework of extra-territorial jurisdiction over those crimes for
states parties. Where such conventions have been widely ratified they may have contributed to a system of universal jurisdiction available to all states. Prime
examples are the so-called core crimes covered by the Rome Statute of the International Criminal Court, which include genocide, war crimes and crimes
against humanity together with torture and enforced disappearance as separately defined in the relevant UN conventions.
3 See e.g. Advisory Report on the Immunity of Foreign State Officials (No. 20, The Hague, May 2011) produced by the Advisory Committee on Issues of Public
International Law (Commissie van advies inzake volkenrechtelijke vraagstukken, CAVV) at the request of the Netherlands Minister for Foreign Affairs.
4 It appointed Roman Kolodkin as Special Rapporteur and asked the secretariat to prepare a memorandum on the topic. Since then the Special Rapporteur has
published a preliminary report and two further reports, with the topic being debated in plenary session in May 2011.

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Immunity for International Crimes?

Questions regarding the immunities of foreign leaders

This is a snapshot of some of the proceedings brought

and other high officials arise more frequently now than

in recent years against former heads of state and other offi-

they once did because of the development of universal

cials in foreign domestic courts. In some cases, proceedings

jurisdiction for international crimes. What then has been

have concerned crimes committed outside the forum state

the position before national courts in the years following

without any traditional jurisdictional link to that state, with

the Pinochet judgment? A number of attempts have been

proceedings brought on the basis of laws establishing extra-

made in the United Kingdom to prosecute serving and

territorial jurisdiction in relation to those crimes. The facts

former foreign heads of state and other high-level officials

in these cases were often very different and the outcomes

for international crimes. Similar attempts have occurred

variable. Not all the cases involved high-level officials,

in other (mostly European) jurisdictions and, despite very

although where functional immunity6 is concerned the same

limited success, such cases continue to be brought. In

principles apply. This snapshot does, nevertheless, serve to

February 2011 it was widely reported that former US presi-

illustrate the increasing frequency with which such cases are

dent George W. Bush had cancelled a visit to Switzerland

being brought in some jurisdictions and the corresponding

following moves by human rights activists to submit a

need to chart a clear course through what may seem a rather

complaint against him to Swiss prosecutors for allegedly

confusing and, on the face of it, inconsistent jumble of

ordering the torture of terrorist suspects. In March, in

actions by national courts and prosecuting authorities.

London, during a visit by the former president of the Soviet

In reality, whether a prosecution proceeds against a

Union Mikhail Gorbachev, an ex parte application for his

high-ranking foreign state representative will depend on

arrest was made for alleged torture. The court dismissed

many factors, political and legal, not least the particular

the application on the grounds that he was entitled to

features of the prosecuting states laws on jurisdiction

immunity as a member of a special mission and that the

and procedures. In some of the cases mentioned above,

elements of the alleged offence had not been made out. In

the issue of the defendants immunity was raised and

2009, an Italian court convicted the US Central Intelligence

considered by the national court concerned. In others,

Agencys Milan station chief and 23 other officials of crimes

it appears to have been ignored or overlooked, and this

in connection with the extraordinary rendition of a terrorist

factor may be of some significance given the approach

suspect to Egypt. Spanish courts have issued indictments

taken by the International Court of Justice (ICJ) in the

against a number of former South American heads of state

case concerning Certain Questions of Mutual Judicial

for genocide, torture and related crimes, although so far

Assistance in Criminal Matters (Djibouti v France).7 In it

only a relatively junior official has been convicted of crimes

the ICJ suggested that, in the case of functional immunity,

against humanity. In France, a Mauritanian general and a

it is for the officials home state to notify the state seeking

Tunisian official have been convicted in absentia for acts of

to exercise jurisdiction and that the latter is not obliged to

torture carried out abroad. More recently, European arrest

raise or consider the matter of its own accord.8

warrants were issued in respect of a number of Rwandan

This paper discusses the extent to which prosecutions

government officials, leading to the arrest of the Rwandan

may be possible in national courts and, in particular,

chief of protocol in Germany and her extradition to France.

examines whether the existence of immunities still consti-

Meanwhile the complex saga regarding the proposed pros-

tutes a significant obstacle in that respect. It deals with

ecution and trial of the former president of Chad, Hissne

the position of foreign leaders and former leaders before

Habr, rumbles on.

the courts of other states and not with their position

5 See Louise Arimatsu, Universal Jurisdiction for International Crimes: Africas Hope for Justice, Chatham House Briefing Paper, IL BP2010/01, April 2010.
6 This is defined below.
7 Certain Questions of Mutual Judicial Assistance in Criminal Matters (Djibouti v France), Judgment, ICJ Reports 2008, p. 177 at paras 19497.
8 Contrast the position in the United Kingdom under the State Immunity Act 1978: where a foreign state itself is being sued, this requires the courts to respect
any immunity it may have of their own motion.

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Immunity for International Crimes?

before their own domestic courts, which is not a matter

have developed to enable officials to carry out their public

of international law. The paper considers whether there

business free from interference by the exercise of jurisdic-

are recommendations to be made for the work of the ILC

tion by another state, and thereby to secure the effective and

and whether the latter will be able to help to point the

peaceful conduct of international relations. Over time this

way ahead to a resolution of what is often perceived as the

has been further elaborated into a theory of functional neces-

competing interests of justice and international relations.

sity by which the immunities are justified as necessary in

Types of immunity

order for the official to perform his or her functions.10

There are, however, some significant historical differences

Under international law there are two broad types of immu-

between the two immunities. Personal immunity, which is

nity. The first is immunity ratione personae, also known as

restricted to a limited category of high state officials, is also

personal immunity. This is an extensive immunity that can

linked in its origin with notions as to the inherent dignity

be wide enough to cover both public and private acts, and

and majesty of sovereigns and their close identification with

includes inviolability and immunity from criminal jurisdic-

the state itself, both as organs of the state and as their repre-

tion. It is derived from the office of the individual concerned

sentatives in external relations. This representative theory

and, according to the ICJ, is enjoyed by heads of state, heads

is founded on the premise that the office-holder concerned

of government, foreign ministers and, possibly, a limited

personifies the state itself. By contrast, functional immu-

category of other very high-ranking state representatives.

nity, which may apply to all serving and former officials of

Although broad in its substantive application, this type of

whatever rank, rests on the more practical rationale that an

immunity is limited both temporally and as to the category

individual official should not be held responsible for acts that

of office-holders to whom it may apply. Once the individual

are, in reality, those of the state. It also prevents the circum-

has left office, he or she ceases to be entitled to such immu-

vention of the immunity of the state through proceedings

nity. The second is immunity ratione materiae, also known

brought against the official who acted on behalf of that state.11

as functional immunity. This covers the official acts of all

state officials and is determined by reference to the nature

Personal immunity

of the acts in question rather than the particular office of the

The decision by the ICJ in the Yerodia/Arrest Warrant

official who performed them. As such, a former state official,

case held that serving heads of state, heads of government

including a former head of state or head of government, can

and foreign ministers enjoy a broad personal immunity

claim the benefit of such immunity even after leaving office.

from the jurisdiction of foreign domestic courts, including

A number of theories have been advanced in support of the

immunity from prosecution for international crimes.12

grant of such immunities. Both types are based on notions as

Following this judgment, a number of national courts

to the independence and equality of states and the resulting

have dismissed cases alleging the commission of inter-

view that no state should claim jurisdiction over another.

national crimes by incumbent heads of state and heads

Both belong to the state, not the individual, and can be waived

of government on the ground that immunity ratione

by the state should it choose to do so. Broadly speaking, both

personae bars proceedings.13

9 Domestic courts are often not in a position to take any effective action for political reasons and/or because prosecution is barred by extensive immunities
conferred by local laws.
10 The ILC has noted that this is a theory that appears to be gaining ground in modern times. See International Law Commission, Report covering its 10th
Session, 1958, pp. 1617.
11 See e.g. Zoernsch v Waldock [1964] 1 WLR 675, 692 (CA per Diplock LJ): A foreign sovereign government, apart from personal sovereigns, can only act through
agents, and the immunity to which it is entitled in respect of its acts would be illusory unless it extended also to its agents in respect of acts done by them on its behalf.
12 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment, ICJ Reports 2002, p. 3; 128 ILR 1. The ICJ made it clear that such
immunity subsists even where it is alleged that an international crime has been committed. It subsequently reaffirmed its judgment as regards heads of state
in Certain Questions of Mutual Judicial Assistance in Criminal Matters (Djibouti v France).
13 See e.g. Re Sharon & Yaron, 42 ILM (2003) 596 (Belgium, Cour de Cassation); Mugabe (2004) 53 International and Comparative Law Quarterly (ICLQ) 769 (UK
Judgment of Senior District Judge, Bow St, 14 January 2004); and Kagame, Auto del Juzgado Central Instruccion No. 4 (Spain, Audiencia Nacional 2008).

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Immunity for International Crimes?

Heads of state

is no doubt that foreign ministers have been treated as a

The personal immunity of incumbent heads of state had

special case in the literature.21 It is notable that, on the rare

been widely recognized prior to the ICJ ruling.14 In the

occasions where such ministers have faced proceedings in

Pinochet case, the UK House of Lords reaffirmed the abso-

foreign courts, the latter have generally found a reason to

lute inviolability and immunity from criminal jurisdiction

dismiss them, albeit on minimally reasoned grounds of

of a foreign serving head of state and recognized that an

diplomatic immunity or special missions immunity.22

15

extensive personal immunity for such persons had been

reflected in earlier decisions of a significant number of

Other high officials entitled to personal immunity?

national courts in both civil and criminal proceedings.

The judgment of the ICJ left open the question as to what

16

other categories of high-ranking state representative may

Heads of government and foreign ministers

benefit from a similar wide-ranging personal immunity. The

The position of heads of government and foreign minis-

court made it clear that, for the purposes of the case, it was

ters was less well developed and this aspect of the ICJ

only considering the immunity from criminal jurisdiction

ruling has attracted some criticism. Traditionally the two

and inviolability of an incumbent minister for foreign affairs.

offices have been linked in international law with that

However, the language used in paragraph 51 of the judgment,

of head of state. There appears to have been a general

with its reference to certain holders of high-ranking office

acceptance that a head of government enjoys immunities

in a state, such as the head of state, head of government and

similar to a head of state and the little state practice that

minister for foreign affairs, suggested that there may be other

exists supports that conclusion.

holders of high office who also enjoy such immunities.23

17

18

19

The position of foreign ministers was less well defined

The ICJ stated that such immunity is not for the personal

and the absence of any clear decisions by national courts

benefit of the individual concerned and that the rationale

based upon a foreign ministers personal immunity has

for it was that foreign ministers needed such immunity

prompted some commentators to argue that there is simply

in order effectively to fulfil their functions, which include

no support in state practice for the ICJs application of such

frequent travel on diplomatic missions on behalf of their

immunity to foreign ministers. On the other hand, there

state. The court placed considerable emphasis on the fact

20

14 See Sir Arthur Watts, The Legal Position in International Law of Heads of State, Heads of Governments and Foreign Ministers, Recueil des Cours, Vol. 247 (1994-III).
15 See Section 20 UK State Immunity Act 1978.
16 See also ILC, Immunity of State Officials from Foreign Criminal Jurisdiction: Memorandum by the Secretariat UN Doc A/CN.4/596, 2008, pp. 6263.
17 Article 7.2 of the Vienna Convention on the Law of Treaties recognizes that all three are in virtue of their functions and without having to produce full powers
considered as representing their state ... for the purposes of performing all acts relating to a treaty. Article 21(2) of the 1969 Convention on Special Missions
refers to both heads of government and foreign ministers and suggests that both, like heads of state, are entitled to privileges and immunities under
international law in addition to those conferred by the convention itself. See also Watts, Legal Position.
18 See Lady Hazel Fox, Privileges and immunities of the head of a foreign state and ministers, in Ivor Roberts (ed.), Satows Diplomatic Practice (Oxford
University Press, 6th edn, 2009) 12.17, p. 184; and Institut de Droit International, Resolution on Immunities from Jurisdiction and Execution of Heads of State
and of Government in International Law, 26 August 2001.
19 In Saltany and others v Reagan and others (1988) 80 ILR 19, affirmed (1989) 87 ILR 679, for example, a civil case, a number of Libyan nationals brought a
complaint in a US court against the United States and numerous additional defendants, including Ronald Reagan, Margaret Thatcher and the United Kingdom.
They alleged that the defendants were involved in the commission of war crimes resulting in deaths and injuries to the plaintiffs. The court dismissed the
complaint against the head of government, Margaret Thatcher, accepting the State Departments suggestion that she was immune from the jurisdiction as
the sitting head of government of a friendly foreign state.
20 See Dapo Akande and Sangeeta Shah, Immunities of State Officials, International Crimes, and Foreign Domestic Courts, 2010 EJIL 21(4), pp. 81552.
21 See Arimatsu, Universal Jurisdiction for International Crimes.
22 See Chong Boon Kim v Kim Yong Shik and David Kim, Circuit Court (First Circuit, State of Hawaii 1963) (1964) American Journal of International Law (AJIL) 58,
p. 186, where a US court dismissed proceedings brought against the Korean foreign minister who was on an official visit to the United States. See also Ali
Ali Reza v Grimpel (1961) 47 ILR 275 where a French court in dismissing a claim to immunity by a minister of state of Saudi Arabia did so in terms which,
although obiter, suggested that had he been foreign minister he would have been entitled to immunity.
23 It appears that opinions within the ILC vary on this point with some members arguing that such personal immunity should be restricted to the so called troika
of head of state, head of government and foreign minister. See International Law Commission, Provisional Summary Record of 3115th Meeting UN Doc A/
CN.4/SR.3115 (21 September 2011).

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Immunity for International Crimes?

that a foreign minister has full powers to act on behalf of

immunity based largely upon the fact that a particular office

a state, observing that this is a position similar to that of

is charged with international functions is that, in modern

a head of state or head of government in that he or she

times, such functions have been extended to a much wider

is recognized under international law as representative of

range of officials than before. Many government ministers,

the state solely by virtue of his or her office. It went on to

both senior and junior, and even officials exercise such

note that a foreign minister is frequently required to travel

functions and are required to travel in order to do so. It is

internationally and must be in a position freely to do so

now common for ministers other than those designated as

whenever the need should arise and must be capable at any

responsible for foreign affairs to represent their state interna-

time of communicating with representatives of other states.

tionally.25 It seems clear, however, that the ICJ had in mind

holders of office of a similar rank and political significance
to those of the three high officials mentioned in its judg-

The difficulty with applying an

immunity based largely upon
the fact that a particular office
is charged with international
functions is that, in modern
times, such functions have been
extended to a much wider range
of officials than before

ment. In practice, such immunity is therefore likely to be

confined to senior ministers at cabinet level (including,
presumably, a vice-president or deputy prime minister)
who frequently represent their state internationally and
where arrest or detention could reasonably be construed as a
serious interference with the government of the foreign state
concerned.26 This is consistent with the view of the ILCs
Special Rapporteur, who has stated that such immunity is
confined to a narrow circle of high-ranking state officials.27
In the United Kingdom there is no specific legal
provision conferring immunity on heads of government,
foreign ministers or other senior officials, and the matter
is governed by customary international law.28 The English

There is, as yet, little guidance in state practice or in

courts (albeit at magistrates level only) have accorded

the jurisprudence of the ICJ itself as to which other offices

personal immunity to defence ministers (Re Mofaz29 and

of state may be covered.24 The difficulty with applying an

Re Ehud Barak30) and to a minister of commerce and

24 In its judgment of 4 June 2008 in the Case Concerning Certain Questions of Mutual Judicial Assistance in Criminal Matters (Djibouti v France), the ICJ did not
suggest that the Djiboutian head of national security or its Procureur de la Rpublique would enjoy personal immunity as high-ranking officers of state. France
had stated earlier that, in its view, they did not, given the essentially internal nature of their functions. See Certain Questions of Mutual Judicial Assistance in
Criminal Matters (Djibouti v France), pp. 24142, para 186.
25 See Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Rwanda), Judgment, ICJ Reports 2006, p. 6, where
the court noted that in modern international relations ministers, other than the head of state, head of government and foreign minister, may represent their
state internationally in specific fields and may bind it by their statements on those matters. It stated that the possibility cannot be ruled out in principle that a
Minister of Justice may, under certain circumstances, bind the state he or she represents by his or her statements.
26 There is also a question as to whether in a monarchy, the heir apparent, who occupies a specific constitutional role and may at times deputize for the head of state in the
discharge of the latters international functions, should also be regarded as benefiting from personal immunity. See Kilroy v Windsor, Civil Action No. C-78-291 (1978) 81
ILR 605, which was decided on the basis of special-missions immunity. There is, therefore, no clear authority on the point. See Watts, Legal Position, pp. 7581.
27 Roman Kolodkin, Second Report on Immunity of State Officials from Foreign Criminal Jurisdiction, UN Doc A/CN.4/631, 10 June 2010, para 94(i).
28 For contrast with the position on heads of state see fn 15. In the United Kingdom, customary international law forms part of the common law. In the Pinochet
case, the House of Lords, although deciding the case on the basis of section 20 of the State Immunity Act 1978, accepted the principle that UK law would
give effect to immunities under customary international law in the absence of a statutory requirement not to do so.
29 Re Mofaz, 12 February 2004, England, Bow St Magistrates Court, 128 ILR 709 where it was stated that The function of various Ministers will vary
enormously depending upon their sphere of responsibility. I would think it very unlikely that ministerial appointments such as Home Secretary, Employment
Minister, Environment Minister, Culture, Media and Sports Minister would automatically acquire a label of state immunity. However, I do believe that the
Defence Minister may be a different matter.
30 Unreported but see E. Franey, Immunity, Individuals and International Law (Lambert Academic Publishing, 2011), pp. 14647.

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Immunity for International Crimes?

international trade (Re Bo Xilai31). Recently, however,

previous head of state who may still lay claim to that title.33

the Divisional Court held that the secretary of the execu-

Alternatively he or she may refuse to relinquish office when

tive office of the National Security Council of Mongolia

another has been elected or appointed to that office, as in

fell clearly outside the circle of high officials entitled to

Cte dIvoire. In United States v Noriega, General Manuel

such immunity,

describing him as an administrator

Noriega, the de facto ruler of Panama, was arrested in

far removed from the narrow circle of those who hold

Panama by US forces, and brought to trial in the United

the high-ranking office to be equated with the state they

States on various criminal charges. He claimed immunity as

personify and with those identified by the ICJ.

head of state but this was rejected by the court on the ground

32

that Noriega has never been recognized as Panamas head

Recognition of individual as relevant office-holder

of state either under the Panamanian constitution or by the

Where personal immunity is accorded, it is a necessary

United States.34 Circumstances where a leader has deliber-

prerequisite for the forum state to accept the individual

ately refrained from formally assuming the office of head of

concerned as the head of a recognized state, the head of

state or head of government, or has renounced such office

government of that state, its foreign minister or the holder of

(even formally conferring it on others) while retaining

some other high office of state to which personal immunity

power, may also be problematic.35

should be accorded. There is no internationally prescribed

There is a further consideration relating to the position

procedure for satisfying a domestic court on this matter and,

of so-called presidents or prime ministers elect. These are

in practice, courts tend to rely heavily upon the opinion of

persons who have been designated or elected as successor

the government. It is a matter for each state to decide for

to the incumbent head of state or head of government

itself its constitutional structure and, in particular, the kind

but have yet formally to assume office. The question of

of head of state it will have and the various powers and func-

what treatment such persons may be entitled to under

tions attaching to that office and to the office of its head of

international law is not without practical significance as

government and foreign minister. In practice, the forms and

the transition period concerned may last several months,

titles of such offices can be as varied as the means by which

during which the designated successor may undertake a

individuals ascend to and depart from such office. Such

round of visits to other states. Matters may become even

matters do not usually raise issues of international law and

more difficult if the incumbent head of state or govern-

are essentially matters of domestic concern for each state.

ment refuses to accept his or her successor and seeks to

Problems can arise, however, where there is uncertainty

remain in power. Again there is no clear authority on

as to the existence of the state concerned or in a situation

the point although in practice it would appear that such

where a leader has seized power and removed from office a

officials, designate or elect, are usually afforded the same

31 Re Bo Xilai 8 November 2005 Bow Street Magistrates Court, 129 ILR 713. The court also recognized that the minister was entitled to immunity as a member
of a special mission.
32 Khurts Bat v Investigating Judge of the German Federal Court and others [2011] EWHC 2029 (Admin).
33 See Lafontant v Aristide 844 F Supp. 128, 132-3 (EDNY 1994); 103 ILR 581 where civil proceedings were brought against the exiled president of Haiti in
the United States. The court held he was entitled to immunity as he was still recognized by the US government as head of state.
34 See United States v. Noriega, 121 ILR 591. The Panamanian constitution provided for an executive branch composed of a president and ministers of state,
neither of which applied to Noriega who was officially designated Commandante of the armed forces. More importantly, the US government had never
accorded Noriega head-of-state status and had continued to recognize another individual as legitimate leader.
35 The former Libyan leader Muammar Gaddafi adopted the title Guide of the Revolution in 1979, conferring all the formal functions of head of state and
government on the secretary general of the General Peoples Congress and a prime minister. However, this did not deter the French Cour de Cassation from
deciding that he was entitled to head-of-state immunity with regard to criminal charges alleging his complicity in acts of terrorism resulting in the destruction
of a French civil aircraft (Gaddafi 125 ILR 490). More recently Al Jazeera reported a statement from the Libyan government issued in response to the ICC
arrest warrants, stating that the leader of the revolution and his son do not hold any official position in the Libyan government and, therefore, they have no
connection to the claims of the ICC against them. See also the North Korean leader Kim Jong-Il who has the office of chairman of the National Defence
Commission while the functions of head of state/government are formally assigned to the chairman of the Praesidium of the Supreme Peoples Assembly and
a premier. To add further ambiguity to the situation, the deceased former leader Kim-Il Sung has been designated Eternal President.

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Immunity for International Crimes?

protection, privileges and courtesies as an incumbent and

Is there an exception in respect of international crimes?

that their statements may, in certain circumstances, be

So, looking at the practice of national courts and pros-

relied upon as evidence of their states position on matters

ecuting authorities since the Pinochet case, can we see the

of international law and policy.

emergence of a coherent and generally accepted excep-

36

Functional immunity

tion to the functional immunity of officials with regard

to international crimes? One of the problems in trying

All state officials, including those who do not enjoy

to do so is that there are relatively few criminal cases in

personal immunity while in office, are entitled to immu-

which state officials have invoked such immunity. There

nity from the jurisdiction of other states in relation to

is also a political reluctance on the part of many states

acts performed in their official capacity. Such immunity

to prosecute former officials, particularly senior ones,

attaches to the official act, not to the office of the indi-

of other states. This means that in practice the rules

vidual concerned, and can therefore be relied upon by

relating to the functional immunity of state officials have

former officials as well as incumbent officials. It may also

developed mainly in the context of civil proceedings.

be relied upon by non-state individuals or entities who

However, there are important differences between the

have acted on behalf of a state. The main effect of such

two types of action, and it would be a mistake to assume

immunity is to prevent litigants from seeking to circum-

that the position on functional immunity is necessarily

vent the rules on state immunity by taking action against

the same in both cases.

the individuals carrying out the business of the state.

Criminal proceedings
What is an official act?

The fact that it is well settled that a criminal act may be

It is clear that functional immunity can only cover acts

attributed not only to the state but also to the official who

performed by officials and former officials in the exercise

performed it has prompted some to question whether it

of their official functions and does not extend to private

is appropriate for immunity to apply at all in such cases.38

acts. In practice, it is not always easy to draw a clear line

Nevertheless, the principle has long been accepted, albeit

between acts performed in an official capacity and those

infrequently applied.39 In a recent case involving the

performed in a personal capacity, particularly where the

prosecution of a US soldier for acts performed in the

conduct in question contains an element of unlawful-

exercise of his duties in Iraq that resulted in the death

ness or even criminality. The orthodox view is that such

of an Italian citizen, the Italian Court of Cassation held

conduct will qualify as official provided it is engaged

that the defendant was entitled to functional immunity.

in under colour of or in ostensible exercise of the states

However, the court went on to observe that the crimes

public authority. If it is, then it must be treated as official

of which he was accused were not war crimes or crimes

conduct and thus as not subject to the jurisdiction of other

against humanity, and noted that a rule of customary

states unless it falls within one of the recognized excep-

international law was emerging that appeared to limit

tions to state immunity.

such immunity in cases of serious international crimes.40

37

36 See Case Concerning Application of the Convention on the Elimination of all Forms of Racial Discrimination (Georgia v. Russian Federation) (CERD case) ICJ
1991 where Georgia sought to rely on a statement made by president-elect Mikhail Saakashvili in a radio interview as evidence that it had made a claim of
racial discrimination against the Russian Federation. The court ruled that the statement did not, in substance, amount to such a claim but the fact that it had
been made by a president-elect did not seem to be a problem.
37 See Jaffe v Miller and Others (No 1) (1993 Canada Ontario Court of Appeal), 95 ILR 446 at p. 460; also Watts, Legal Position, p. 56 and Article 7 of the ILCs Articles on
State Responsibility, which provides that The conduct of an organ of a state or of a person or entity empowered to exercise elements of the governmental authority shall
be considered an act of the state under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.
38 See Bouzari and Others v Islamic Republic of Iran 124 ILR 427, a civil case where it was suggested that this fact means that criminal proceedings, unlike civil
actions, do not, therefore, constitute a direct interference by one state in the actions of another sovereign state.
39 See the Macleod Case in Robert Jennings, The Caroline and Macleod Cases (1938) American Journal of International Law 32.
40 Lozano (Mario Luiz) v Italy, Case No 31171/2008; ILDC 1085 (IT 2008) 24 July 2008, Cass (Italy), 1st Crim.

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Immunity for International Crimes?

The Pinochet case, in which the UK House of Lords

object and purpose of the Convention that prompted the

allowed an extradition application by Spain in respect of the

majority to conclude that there could be no immunity for

former Chilean president to proceed, remains the leading

the international crimes of torture and conspiracy to torture.

case on such an exception. The case concerned allegations of

The detailed reasoning provided by the judges in reaching

widespread and systematic torture carried out in Chile and

this conclusion varied considerably, with two of them refer-

various ordinary crimes of murder and conspiracy to murder,

ring, among other grounds, to the theory that an act that

including conspiracy to murder in Spain. The court confirmed

constitutes an international crime cannot, of itself, be an

that, if he had been a serving head of state, Augusto Pinochet

official act.42 This is a theory that has been taken up by

would have been entitled to an absolute personal immunity

various commentators and in some courts where it has been

on all the charges and, as a former head of state, he would as a

argued that international crimes can never be regarded as

general rule continue to enjoy functional immunity in respect

sovereign or official acts. In 2000, the Amsterdam Court

of acts carried out in his official capacity as head of state. All

of Appeal noted in the Bouterse43 case (where the former

but two of the judges took the view that Pinochet enjoyed

military leader of Suriname was accused of the torture and

immunity for the ordinary crimes on the ground that the acts

murder of a number of individuals) that the commission of

alleged, although criminal, had been governmental and must

very grave criminal offences of this kind cannot be regarded

therefore give rise to functional immunity. The court broke

as part of the official duties of a head of state.44 However,

new ground, however, in considering whether there could be

this analysis has been criticized as far too broad and has

an exception to functional immunity where the international

been specifically rejected by several courts, including the

crime of torture was involved.

European Court of Human Rights.45

41

The UN Convention against Torture, to which Chile, the

Other judges referred to the ius cogens46 status of the prohi-

United Kingdom and Spain were all parties at the material

bition against torture, arguing that such a prohibition, by

time, lies at the heart of the judgment. The Convention sets

reason of its peremptory and supreme nature, must override

up a system of extra-territorial criminal jurisdiction for

any immunity. This theory was espoused by many commen-

torture, as defined in Article 1, but makes no mention of

tators and has been applied in a number of cases. In Ferrini v

state immunity. But by definition, the international crime of

Germany47 the Italian Supreme Court of Cassation held that

torture must be committed by or with the acquiescence of

Germany was not entitled to immunity for serious violations

a public official or other person acting in a public capacity.

of human rights carried out by German occupying forces

All defendants will therefore be state officials or former state

during the Second World War. In doing so, it relied heavily

officials or agents and will have carried out the torture as an

on the principle of the primacy of ius cogens norms. But

official act for which they could claim immunity. In reality,

this approach has also attracted strong criticism. It has been

it appears to have been the tension between this fact and the

pointed out, in particular, that the rules on state immunity,

41 R v Bow Street Magistrates Court ex parte Pinochet (No. 3) [2000] AC 147. See Lord Browne-Wilkinsons comment at p. 205: No-one has advanced any
reason why the ordinary rules of immunity should not apply and Senator Pinochet is entitled to such immunity.
42 R v Bow Street Magistrates Court ex parte Pinochet (No. 3) [2000] AC 147. See Lords Browne-Wilkinson and Hutton.
43 For analysis of the judgment see Liesbeth Zegveld, The Bouterse Case (2001) Netherlands Yearbook of International Law 32, pp. 97118.
44 See Prefecture of Voiotia v Federal Republic of Germany (Case No 11/2000) (unreported) 4 May 2000 (the Distomo case), where the Greek courts awarded
damages against Germany on the ground that atrocities committed by German forces in Greece during the Second World War violated ius cogens rules and
could not therefore qualify as sovereign acts covered by immunity.
45 See Federal Republic of Germany v Miltiadis Margellos (Case 6/17-9-2002, Greece); Aikaterini Kalogeropoulou et al. v Greece and Germany (ECHR,
Decision on admissibility of individual complaint no. 59021/00, 12 December 2002); The Distomo Massacre case (2003) 42 ILM 1030 (Germany
Supreme Court); and Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2006] UKHL 26 (UK House of Lords). See also Akande and Shah,
Immunities of State Officials, which argues that such an approach is riddled with problems; and Eileen Denza, Ex parte Pinochet: Lacuna or Leap?
(1999) 48 ICLQ 949.
46 See Article 53 of the Vienna Convention on the Law of Treaties, which defines such a rule as a norm accepted and recognised by the international
community as a whole as a norm from which no derogation is permitted.
47 See Ferrini v Federal Republic of Germany, Italian Court of Cassation, 11 March 2004, 128 ILR 659.

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Immunity for International Crimes?

which are only procedural in character, cannot conflict

On this basis, it has been argued that the exception identi-

with substantive ius cogens norms prohibiting international

fied by the Law Lords in the Pinochet case with regard to

crimes. Moreover, following the Ferrini case, Germany has

torture should also extend to other international crimes. It

instituted proceedings before the ICJ against Italy for failing

has been pointed out that while genocide, war crimes and

to respect its jurisdictional immunity as a sovereign state.

crimes against humanity may be committed by private indi-

48

49

However, the common theme underlying the judgments

of the majority in the Pinochet case was that it would be

viduals, their primary focus is still state conduct.53

Torture to allow an immunity that was virtually coextensive

May former leaders be prosecuted in

foreign courts?

with the offence created by that Convention.50 Exactly the

Following the Pinochet case, what has been the position in

same argument would apply in relation to enforced disap-

practice? There have been relatively few cases, but Spain has

pearance, which, like torture, is committed by or with the

continued to lead the way with the issue of arrest warrants in

acquiescence of a public official. In the Pinochet case, Lord

respect of several former heads of state, including two former

Phillips went a little further in stating that functional immu-

presidents of Guatemala, Rios Montt and Oscar Mejia Victores,

nity cannot coexist with international crimes where a system

for genocide, torture and other related crimes.54 Elsewhere in

of extra-territorial jurisdiction applies as the latter must

Europe, there has also been some significant activity involving

necessarily override the principle that one state should not

prosecutions of foreign officials for international crimes.55

interfere with the internal affairs of another. On this basis, it

Admittedly most prosecutions have tended to feature relatively

has been suggested that the true rationale for an exception

junior officials, but the fact that such prosecutions have been

to immunity in the case of certain international crimes lies

launched suggests an initial assumption, explicit or implicit,

in the development of international conventions providing

that functional immunity should not bar the prosecution of

for the exercise by states parties of extra-territorial jurisdic-

such crimes.56 Such an assumption is as relevant to former

tion over such crimes, and demonstrating that international

high-level officials as it is to more junior officials.

absurd and inconsistent with the UN Convention against

51

law now accepts that states may exercise jurisdiction over

From the prosecutions that have been brought in

certain official acts of foreign states in the context of

various countries, it is difficult, however, to draw any clear

assigning individual criminal responsibility for such acts.

rules regarding an exception to immunity. The facts in

52

48 See Lady Fox: State immunity is a procedural rule going to the jurisdiction of a national court. It does not go to substantive law; it does not contradict a
prohibition contained in a ius cogens norm but merely diverts any breach of it to a different method of settlement. See also Jones v Ministry of the Interior of
the Kingdom of Saudi Arabia where this passage was cited with approval.
49 See Germany v Italy, pending before the ICJ.
50 See in particular Lord Millett at 227A-278B. The case was also thus explained in the subsequent case of Jones v Ministry of the Interior of the Kingdom of
Saudi Arabia: The essential ratio of the decision, as I understand it, was that international law could not without absurdity require criminal jurisdiction to be
assumed and exercised where the Torture Convention conditions were satisfied and, at the same time, require immunity to be granted to those properly
charged. The Torture Convention was the mainspring of the decision.
51 See International Convention for the Protection of All Persons from Enforced Disappearance.
52 For full explanation of this approach see Akande and Shah, Immunities of State Officials.
53 Ibid. The authors, who put forward a strong case for the application of such an exception to functional immunity in relation to such crimes, admit that the
argument is not quite as strong with regard to war crimes in a non-international conflict, genocide and crimes against humanity as it is in relation to torture,
enforced disappearance and war crimes in an international armed conflict.
54 A Spanish court has also convicted a former Argentinian naval officer, Adolfo Scilingo, for torture and crimes against humanity committed abroad; a second Argentinian
naval officer, Ricardo Cavallo, was also prosecuted, following his extradition from Mexico, although he was ultimately extradited to Argentina to face trial there.
55 These have been mainly in Europe. See e.g. Belgium (case against former Chadian dictator Hissene Habr and the conviction of Rwandan army major
Bernard Ntuyahaga for war crimes and crimes against humanity); France (the two convictions in absentia of Mauritanian general Ely Ould Dah and Tunisian
official Khaled Ben Said for torture committed in their home states); Netherlands (former military leader Dsi Bouterse of Suriname investigated for torture but
prosecution time barred; conviction of Congolese official Sebastian Nzapali for torture and conviction of two Afghan intelligence officers for torture); Denmark
(prosecution of former chief of staff of the Iraqi Army for war crimes, although he fled the country before trial).
56 See conclusion in 2008 by Netherlands prosecutorial authorities that Israeli minister Ami Ayalon, a former director of Shin Bet security service, did not enjoy
immunity in relation to charges of torture.

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Immunity for International Crimes?

each case have often been very different and the outcomes

capacity.60 However, in their joint separate opinion, Judges

extremely variable. In many of the cases, proceedings

Higgins, Kooijmans and Buergenthal indicate that the

have been abandoned or put on hold because of diffi-

current trend of state practice is that serious international

culties concerning the evidence, the death or absence

crimes are not covered by the immunities ratione materiae

of the accused, or simply because the home state of the

of former state officials.61

defendant has decided to investigate or prosecute the

matter on its own account. In some cases, the home state

appears to have waived any immunity or simply failed

There have been many cases

suggesting a strong reluctance
to prosecute foreign state
officials, particularly where the
foreign state concerned is likely
to object to such proceedings

to raise the issue at all; in other cases internal disorder

may have meant that the home state was not in a position to assert immunity or to object to the proceedings
on those grounds. This could be significant given the
approach of the ICJ in the France v Djibouti case, referred

to above, which suggests that functional immunity has to

be claimed actively by the officials home state. It is also
notable that the Third Report of the ILC special rapporteur
on this topic concludes that, in the absence of such a claim,
the state exercising jurisdiction is not obligated to raise

In Ferrini v Germany, a civil case concerned with the

and consider the issue of immunity proprio motu and may,

immunity of the state itself, the Italian Court of Cassation

therefore, proceed with the criminal prosecution.

stated that, in its view, it was undisputed that state

57

There have also been many cases suggesting a strong

officials do not enjoy functional immunity in respect of

reluctance to prosecute foreign state officials, particu-

crimes under international law. As noted above, the case

larly where the foreign state concerned is likely to object

is currently the subject of an application to the ICJ by

to such proceedings. Sometimes immunity is invoked

Germany alleging that Italy has violated its entitlement

as a justification for such reluctance. Sometimes other

to state immunity,62 and it is possible that the court will

reasons are relied upon. The decision of the ICJ in the

consider this aspect of functional immunity in its judg-

Arrest Warrant case was concerned with the personal

ment and provide some further clarification. However,

immunity of a serving foreign minister, but much has

matters may be complicated by the fact that the interna-

been made of an obiter dictum in the case that could be

tional crimes alleged in Ferrini occurred, at least in part, in

read to imply that functional immunity continues to bar

the territory of the forum state and many years ago.

58

59

the prosecution of all state officials and former state offi-

A recent development in the United Kingdom is the

cials for international crimes committed in their official

reliance by courts and the government on the view that

57 Although some members of the ILC have questioned whether such a conclusion might not be too categorical and suggested that further thought needs to be
given to the matter.
58 See, for example, Germany where prosecutors have declined to proceed, through the exercise of their prosecutorial discretion, against former Chinese
president Jiang Zemin (2003), former Uzbek interior minister Zokirjon Almatov (2005) and former US Secretary of Defense Donald Rumsfeld and others;
and France, where in 2007 prosecutors similarly declined to proceed against Rumsfeld on charges of torture. In 2006 the issue by France and Spain of arrest
warrants against various high-ranking Rwandan government officials provoked strong protests from Rwanda and the African Union, and prosecutions, most
notably against the former chief of protocol, Rose Kabuye, were eventually dropped.
59 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment, ICJ Reports 2002.
60 The court listed the circumstances in which immunity would not apply to a former foreign minister and included the category 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 (italics added). The
court did not refer to international crimes in this context.
61 See also view of ICTY Appeals Chamber in Prosecutor v Tihomir Blasckic, International Tribunal for the Prosecution of Persons Responsible for Serious
Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Case No. IT-95-14-A, para 41.
62 See Germany v Italy, pending before the ICJ.

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Immunity for International Crimes?

immunity for persons engaged on a special mission

have been committed in an official capacity. Conversely, the

has become a part of customary international law.

home states of the officials concerned tend to refrain from

On 6 October 2011 the Director of Public Prosecutions

claiming any immunity on their behalf.65

(DPP) refused to agree to the issue of an arrest warrant for

In 2009, an Italian court convicted 23 CIA agents on

alleged war crimes against Tzipi Livni, the Israeli opposition

charges of kidnapping for their participation in the extraordi-

leader, who was visiting London. The DPP relied on a certifi-

nary rendition of a suspected terrorist, Abu Omar, who was

cate issued under the authority of the foreign secretary stating

abducted in Milan and flown to Cairo where he was alleg-

that the Foreign and Commonwealth Office had consented to

edly tortured. Among the defendants, who were all tried in

her visit to the United Kingdom as a special mission. Special

absentia, was a former head of the CIA station in Milan who

mission immunity constitutes full personal immunity and, as

had been a US consul. The precise rationale of the decision

discussed above, it accordingly does not allow any exception

is unclear, although in the earlier Blaskic case, the Appeals

for prosecutions for international crimes.

Chamber of the ICTY had alluded briefly to its view that spies,

Crimes committed in the country of the

foreign court (the forum state)

although acting as organs of a state, could be held personally

accountable for their wrongdoing. In the oral pleadings before
the ICJ in Djibouti v France, counsel for Djibouti also made

The increasing focus on state practice in the area of criminal

the point (which was not directly relevant to the case) that

prosecution of foreign state officials has highlighted another

exceptions to the principle of functional immunity existed in

possible exception to functional immunity. This recalls the

the event of war crimes and acts of espionage and sabotage

circumstances referred to by Lord Millet in the Pinochet

carried out in the territory of a foreign state.

63

case, when he dealt with the charge of conspiracy to murder

More recently, Khurts Bat, the secretary of the execu-

allegedly committed in the territory of the requesting state,

tive office of the Mongolian National Security Office, was

Spain, and commented, The plea of immunity ratione

arrested in London pursuant to a European arrest warrant

materiae is not available in respect of an offence committed

issued by a German federal court. He faced charges relating

in the forum state. He did not elaborate further and it is

to the kidnapping of a Mongolian national in France who

clear that the majority were of the view that Pinochet was

was then forcibly transported to Berlin, seriously ill-treated,

entitled to immunity for ordinary crimes carried out in

drugged and flown abroad using a diplomatic passport.

his official capacity, even if committed on Spanish terri-

The acts were alleged to be part of a plan by the Mongolian

tory. However, a study of state practice has revealed that,

secret service, and at the time the defendant was working

in the few cases recorded involving such crimes, states

at the Mongolian Embassy in Budapest. His claims of

have usually been prepared to arrest and/or prosecute the

personal immunity as a member of a special mission and

foreign state officials concerned even where such offences

as a high-ranking state official were rejected by the district

64

63 Although the ILCs Special Rapporteur has characterized it as more of an absence of immunity rather than an exception, stating, A situation where criminal
jurisdiction is exercised by a state in whose territory an alleged crime has taken place, and this state has not given its consent to the exercise in its territory of
the activity which led to the crime, and to the presence in its territory of the foreign official who committed this alleged crime stands alone in this regard. See
Roman Kolodkin, Third Report on Immunity of State Officials from Foreign Criminal Jurisdiction, UN Doc A/CN.4/646, 24 May 2011.
64 State practice on this point appears to be scant. See ILC, Immunity of State Officials from Foreign Criminal Jurisdiction, para 162.
65 See the Rainbow Warrior incident where a New Zealand court convicted two French agents of manslaughter and wilful damage for their part in sinking a Greenpeace
vessel in New Zealand. The judge noted that the defendants had acted under orders but stated that this was not a matter on which he would place any great
weight (R v Mafart and Prieur 74 ILR 241). France did not raise any issue of immunity at the trial stage but later argued that the defendants detention in a New
Zealand prison was inappropriate taking into account in particular the fact that they acted under military orders and that France [was] ready to give an apology
and to pay compensation to New Zealand for the damage suffered. See Ruling of UN Secretary General of 6 July 1986 in UN Reports of International Arbitration
Awards Vol. XIX, p. 213. Even in the memorandum submitted by France to the UN Secretary General, France did not refer to any immunity but instead emphasized the
issue of responsibility. See also R v Lambeth Justices ex parte Yusufu (Dikko kidnapping) 88 ILR 323; In the High Court of Justiciary at Camp Zeist Case No: 1475/99
Her Majestys Advocate v Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifa Fhimah, Prisoners in the Prison of Zeist, Camp Zeist (Kamp van Zeist), The Netherlands;
and the decision of the German Federal Constitutional Court of 15 May 1995, which denied immunity to spies of the former Democratic Republic of Germany in
respect of acts performed in the Federal Republic of Germany before reunification (see ILC, Immunity of State Officials from Foreign Criminal Jurisdiction, para 165).

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Immunity for International Crimes?

judge, and he then appealed on both points to the divisional

with the criminal prosecution of international crimes,

court, adding at a late stage a further claim for functional

it is worth looking briefly at the position on civil suits

immunity based upon the fact that the acts alleged were

in respect of such crimes, if only to distinguish the

official acts of Mongolia. The divisional court affirmed the

rather different principles in play. In Jones v Ministry

judgment of the lower court on the first two points and

of the Interior,68 civil proceedings relating to allegations

also rejected the additional claim for functional immunity,

of torture were brought in the United Kingdom against

holding that customary international law does not afford

Saudi Arabia and certain of its officials, including the inte-

such immunity in relation to official acts performed in the

rior minister. The House of Lords held that Saudi Arabia

territory of the forum state in circumstances where that

was immune and dismissed the claims against the indi-

state has not given its consent to the presence of the foreign

vidual defendants on the basis that their acts were clearly

official and his presence is unknown.

attributable to the state and that therefore no distinction

66

The precise parameters of the exception for crimes

could be made between those claims and the barred claim

committed in the territory of the forum state are not

against that state. The latter was barred because it did not

entirely clear. There may be an argument, for example, that

fall within any of the recognized exceptions to state immu-

the exception applies only in the case of spies. The Special

nity. The court emphasized that the ius cogens nature of

Rapporteurs Second Report on the Immunity of state

the prohibition against torture and the fact that it consti-

Officials from Foreign Criminal Jurisdiction notes the fact

tutes an international crime did not of themselves operate

that a crucial consideration is whether or not the territorial

so as to remove a states entitlement to immunity from the

state has consented to the discharge in its territory of official

civil jurisdiction of another state.69 A New Zealand court

functions by a foreign state organ and that consent to the

took the same approach in civil proceedings against the

presence of the foreign official may also be important. The

former president of China and other state officials relating

Special Rapporteur concludes: If a state did not give its

to allegations of torture,70 and in 2008 the US Court of

consent to the presence of a foreign official and his activity,

Appeals upheld the immunity of a senior member of the

which led to the commission of a criminally punishable act,

Israeli armed forces in civil proceedings relating to alleged

in its territory, there would appear to be sufficient grounds

war crimes.71

67

for assuming that the official does not enjoy immunity

However, it would be wrong to assume that the scope of

ratione materiae from the jurisdiction of that state. The

functional immunity in respect of the acts of state officials

classic examples given are espionage, acts of sabotage and

is the same for civil proceedings as for criminal prosecu-

kidnapping, but presumably international crimes such as

tions. Indeed, counsel for Saudi Arabia in the Jones case

torture or war crimes could also fall within the exception.

emphasized this point, arguing that a distinction between

Civil proceedings relating to international

crimes

the two is fundamental to customary international law.

The UN Convention on the Jurisdictional Immunities
of States and Their Property (2004) and the European

In practice the rules relating to the functional immunity

Convention on State Immunity (1972) do not apply to

of state officials have developed mainly in the context of

criminal proceedings. Moreover, the UN Convention

civil proceedings and, although this paper is concerned

against Torture requires states to recognize universal

66 See Khurts Bat v Investigating Judge of the German Federal Court and others. The official was returned to Germany, freed, and apparently re-employed in Mongolia.
67 See for example McElhinney v Williams and Her Majestys Secretary of State for Northern Ireland [1995] 104 ILR 691, although this was a civil case.
68 Jones v Ministry of the Interior of the Kingdom of Saudi Arabia.
69 Note that there is a campaign to introduce in United Kingdom law a tort liability for torture, wherever committed, and preclude a person or a state from
claiming immunity in respect of such proceedings (see the Torture (Damages) Bill, introduced in the UK House of Lords in February 2008).
70 Fang and others v Jiang Zemin and others (High Court) [New Zealand].
71 Belhas v Moshe Yaalon United States Court of Appeals (DC Circuit) 515 F.3d 1279, 15 February 2008.

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Immunity for International Crimes?

criminal liability for acts of torture but does not provide

By contrast with personal immunity, which has devel-

for a universal tort liability in that respect. There are

oped as a distinct immunity and is not dependent upon

also significant practical distinctions between prosecu-

whether the state itself is immune, functional immunity as

tion and civil proceedings: prosecution is usually in the

enjoyed by individuals is an integral part of the immunity

hands of a state, not a private individual, and it usually

of their state. Where one of the well-recognized excep-

(although not always) depends upon the physical presence

tions to state immunity applies so that the state itself is not

in the forum state of the defendant and the possibility of

immune, logically such immunity must fall away for the

a proper trial and effective punishment. The standard of

individual also,76 although in some circumstances there

evidence required for a prosecution to proceed and the

may be a question as to whether the act can properly be

burden of proof that must be satisfied in order to secure

attributed to that individual and therefore whether he or

a conviction are generally higher than in a civil case. It

she is a proper defendant in the proceedings. However,

has been argued that such factors reduce the possibility of

some have expressed different views on this point.77

72

73

mischievous and politically motivated proceedings, and

therefore that criminal liability presents far less difficulty

Conclusion

in respect of international comity and the maintenance of

A near-consensus of Western academic writers and

good relations between states.

human rights NGOs holds that there is an exception from

Recently, a US district court deferred to the State

immunity when former leaders are prosecuted in foreign

Departments submission that a former prime minister

courts for international crimes. Moreover, the develop-

and defence minister of Somalia did not enjoy immu-

ment of international treaties providing for the exercise by

nity from the civil jurisdiction of the US courts where

states parties of extra-territorial jurisdiction over crimes

allegations of torture and extra-judicial killings had been

that are themselves defined as official acts, or that are

made. The decision is likely to be appealed and it is,

linked closely with such acts, suggests that international

therefore, difficult to draw any firm conclusions from it at

law now contemplates the prosecution in national courts

this stage. In any event, the decision appears to rest upon

of foreign officials accused of such crimes. Following the

certain unique features of the case, most notably the fact

Pinochet case, it was hoped by many that the principles

that the US government does not currently recognize a

underlying the refusal of immunity in that case would be

government in Somalia and the fact that the defendant is

further clarified and fully worked out in subsequent cases

resident in the United States.

so that precise rules on the exception would emerge. In

74

75

72 See Jones v Ministry of the Interior of the Kingdom of Saudi Arabia, and Bouzari v Islamic Republic of Iran 2004 CanLII 871 (Ontario Court of Appeal, 30 June
2004) at para 28.
73 Note that the former law in the United Kingdom whereby a private citizen could initiate a prosecution for an international crime by seeking the issue of an
arrest warrant in respect of a specific individual known to be in the country has now changed, by virtue of the Police and Social Responsibility Act, which
requires the DPPs consent before such a warrant can be issued.
74 Yousuf v Samantar United States Court of Appeal (4th Circuit), 8 January 2009.
75 US courts have, in any event, taken a markedly different line in civil cases than courts in other countries based upon the unique character of certain US legislation i.e. the Alien Tort Claims Act and the Torture Victims Protection Act.
76 Note the official may still be entitled to personal immunity by virtue of his or her high-ranking office or some other type of immunity derived from a specialized
regime such as the one on diplomatic immunities or special missions.
77 It has been argued that such immunity is distinct from the law of state immunity as state officials may be immune in cases where the state under the
restrictive doctrine is not. For example, a diplomatic agent who performs a commercial transaction on behalf of his or her state is immune from proceedings
in respect of that transaction although the sending state is not. (See Rosanne Van Alebeek, The Immunity of States and their Officials in International Criminal
Law and International Human Rights Law (Oxford University Press, 2008), pp. 10607.) However, such an analysis rests upon the specialized regime of the
Vienna Convention on Diplomatic Relations, which governs the immunities of diplomats and former diplomats in the state to which they are or were accredited.
It is much less clear that the same principle would apply to the general law of state immunity, which covers the immunities of all officials and former officials
in all foreign states. However, see ILC, Immunity of State Officials from Foreign Criminal Jurisdiction, para 161, and Kolodkin, Second Report, para 28, which
approves the secretariats view that a state official performing an act iure gestionis, attributable to the state, would enjoy functional immunity even though the
state itself was not immune.

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Immunity for International Crimes?

practice, this has not happened and the picture has been

debate. Since the Pinochet decision, the international law

patchy, often confused and obscured by other jurisdic-

community including states, international courts and tribu-

tional factors that have barred or deterred prosecution in

nals, NGOs, national courts and academic lawyers has

individual cases.

been engaged in a fierce debate over the precise content

78

It is clear that serving heads of state and other very

of the relevant rules on the topic. Uncertainties as to the

high-ranking state officials entitled to personal immunity

immunities of state officials in relation to acts performed

may not be prosecuted for international crimes without

in their official capacity have prompted a renewed focus

the consent of their home state. The picture, once they

on the personal immunities of high state officials and on

have left office, is rather more obscure. The paucity of

special-missions immunity. It is probable that some of these

state practice means that precise rules on any excep-

extensive personal immunities, which in the past were not

tions to functional immunity are still to be developed.

entirely free from doubt or generally accepted, have been

Even where cases have been brought, the wide variety

clarified and consolidated in response to uncertainty about

of jurisdictional factors in play and the often very broad

the precise extent of functional immunity for international

prosecutorial discretion enjoyed by national authorities

crimes. Such a development is a reasonable response to

have made it difficult to identify the precise reason why a

concerns about the stability of international relations and

particular prosecution has proceeded or been dropped.

the need to ensure that very high-ranking serving officials

79

may continue to carry out their functions without interference. It would be ironic, however, if these developments

The development of rules

on state immunity has always
been a slow and often tortuous
process. The problematic nature
of the plea lies in the fact
that it is international law that
determines what those rules are
but national courts that must
interpret and apply them

were not to be counterbalanced by the emergence of clear

rules on an exception to functional immunity with regard
to international crimes.
What role is there for national courts in this process
and how likely are they to play an active role in developing
such rules? The development of rules on state immunity
has always been a slow and often tortuous process. The
problematic nature of the plea lies in the fact that it is
international law that determines what those rules are but
national courts that must interpret and apply them. In the
United Kingdom, the Pinochet case remains the authority
for the proposition that a former foreign head of state
may be prosecuted for official acts of torture; if a similar
case involving a former foreign high official were to come

The fact is that, for whatever reason, many states remain

before the courts, they would surely follow that authority.

reluctant to prosecute former foreign leaders, and political

It is possible that they would draw the line at torture and

sensitivities in this area remain high. Not surprisingly,

enforced disappearance and not extend the exception

therefore, Pinochet has not been followed around the

to any other international crimes, but this is doubtful.

world by many prosecutions of former high state officials,

The same would probably apply to courts in many

although there has been some activity with regard to junior

other European and some Commonwealth jurisdictions.

officials. This area of the law continues to provoke intense

However, given the reluctance of national prosecuting

78 See Kolodkin, Second Report, p. 56: The judgment in the Pinochet case having given an impetus to discussion on this issue, has not led to the establishment
of homogeneous court practice.
79 See Wolfgang Kaleck, From Pinochet to Rumsfeld: Universal Jurisdiction in Europe 19982008, 30 Michigan Journal of International Law 927.

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page 16

Immunity for International Crimes?

authorities to take action in such cases and the variety of

Chatham House has been the home of the Royal

jurisdictional and evidential factors that make such pros-

Institute of International Affairs for ninety years. Our

ecutions very difficult, the chances of such a case arising in

mission is to be a world-leading source of independent

the near future are perhaps slim. In these circumstances,

analysis, informed debate and influential ideas on how

it is probably unrealistic to expect national courts on their

tobuild a prosperous and secure world for all.

own to develop clear and coherent rules on the exception

to immunity.
In this context, the work of the ILC is crucial. It appears
that internal debate on this topic has been lively and
that there has occasionally been some sharp criticism

Joanne Foakes is an Associate Fellow of the International

Law Programme at Chatham House and author of
The Position of Heads of State and other High-Ranking
Officials in International Law (OUP, forthcoming 2012).

of the somewhat conservative analysis adopted by the

Special Rapporteur, whose view is that it is difficult to
talk of exceptions to immunity as having developed into
a norm of customary international law.80 There is now an
opportunity for the Commission to provide real guidance
to national prosecuting authorities and courts in identifying the precise contours of an exception to immunity
in respect of international crimes; such guidance would
resolve the current tension and properly reflect current
trends in international law. The members of the ILC, with
their varying legal backgrounds, are well placed to do this.
It is to be hoped, therefore, that it will take up the challenge and give a constructive lead to national courts that
will properly reflect the move towards ending impunity
for international crimes, while respecting the need to
maintain international relations. Without such a lead, it is
to be feared that the current rather confused picture may
continue for some time.
Finally, it is worth noting that the prosecution in a
domestic court of a foreign high state official for inter-

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capacity is usually the third-best option. It is almost always

Chatham House (the Royal Institute of International Affairs) is an

independent body which promotes the rigorous study of international
questions and does not express opinions of its own. The opinions
expressed in this publication are the responsibility of the author.

preferable for the official to be prosecuted before an

The Royal Institute of International Affairs, 2011

national crimes committed abroad in his or her official

international tribunal designed for the purpose, or better

still in the courts of his or her home state. However, for
various practical and political reasons the two best options
are often unavailable and matters are perhaps unlikely to
improve in this respect without a degree of pressure from
foreign domestic courts.

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80 See Kolodkin, Second Report, p. 56. See also Report of International Law Commission 2011, Chapter VII, UN Doc A/66/10.

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