Principles of territorial jurisdiction of states under public international law

Definition
State jurisdiction is the capacity of a State under International Law to prescribe the rules of law,
enforce the prescribed rules of law and to adjudicate.
State Jurisdiction, also means that a state court has the right to make a legally binding decision
that affects the parties involved in the case.
It is derived from State sovereignty and constitutes its vital and central feature. It is the authority
of a State over persons, property and events which are primarily within its territories.
SCOPE & EXTENT OF STATE JURISDICTION
State jurisdiction may extend beyond its territory over persons and things which have a national
link. There are grounds or principles upon which the State can assert its jurisdiction within and
beyond its boundaries.
Nevertheless, there are certain persons, property and events within a State territory which are
immune from its jurisdiction.
Types of State Jurisdiction
It is of three types: legislative jurisdiction, executive jurisdiction and judicial jurisdiction.
Legislative jurisdiction
Legislative jurisdiction is the capacity of a State to prescribe rules of law. A State has the
supremacy to make binding laws within its territory. It has legislative exclusivity in many areas.
This supremacy is entrusted to constitutionally recognized organs.
Although legislation is primarily enforceable within a state territory, it may extend beyond its
territory in certain circumstances. International Law, for example, accepts that a State may levy
taxes against persons not within its territory as long as there is a real link between the State and
the proposed taxpayer, whether it is nationality or domicile.
The legislative supremacy of a State within its territory is well established in International Law.
However, this supremacy may be challenged in cases where a State adopts laws that are contrary
to the rules of International Law. In such cases, a State will be liable for breach of International
Law. A State may also be liable for breach of International Law if it abuses its rights to legislate
for its nationals abroad.
Executive Jurisdiction
It is the capacity of a State to act and to enforce its laws within its territory. Generally, since
States are independent of each other and possess territorial sovereignty, they have no authority to
carry out their functions on foreign territory. No state has the authority to infringe the territorial
sovereignty of another State. In this sense, a State cannot enforce its laws upon foreign territory
without the consent of the host State; otherwise it will be liable for breach of International Law.
Judicial Jurisdiction
It is the capacity of the courts of a State to try legal cases. A State has an exclusive authority to
create courts and assign their jurisdiction, and to lay down the procedures to be followed.
However, in doing so, it cannot by any means alter the way in which foreign courts operate.
There are a number of principles upon which the courts of a State can claim jurisdiction. In civil
matters, the principles range from the mere presence of the defendant in the territory of a State to
the nationality and domicile principles. In criminal matters, they range from territorial principle
to universality principle.
Principles of Jurisdiction
Generally, the exercise of civil jurisdiction by courts of a State has been claimed upon far wider
grounds than has been the case in criminal matters.
As far as criminal jurisdiction is concerned, the grounds or principles of jurisdiction mostly
invoked by States are as follows.
The Territorial Principle
This principle is derived from the concept of State sovereignty. It means that a State has the
primary jurisdiction over all events taking place in its territory regardless of the nationality of the
person responsible. It is the dominant ground of jurisdiction in International Law. All other State
must respect the supremacy of the State over its territory, and consequently must not interfere in
its internal affairs or in its territorial jurisdiction.
The territorial jurisdiction of State extends over its land, its national airspace, its internal water,
its territorial sea, its national aircrafts, and its national vessels. It encompasses not only crimes
committed on its territory but also crimes that have effects within its territory. In such a case a
concurrent jurisdiction occurs, a subjective territorial jurisdiction may be exercised by the State
in whose territory the crime was committed, and an objective territorial jurisdiction may be
exercised by the State in whose territory the crime had its effect.
Although jurisdiction is primarily and predominantly territorial, it is not exclusive. A State is free
to confer upon other States the right to exercise certain jurisdiction within its national territory.
States are free to arrange the right of each one to exercise certain jurisdiction within each
national territory. The most significant recent examples of such arrangements are:
• The 1991 France-United Kingdom Protocol Concerning Frontier Control and Policing, under
which the frontier control laws and regulations of each State are applicable and may be enforced
by its officers in the control zones of the other;
• The 1994 Israel-Jordan Peace Treaty, under which the Israeli criminal laws are applicable to
Israeli nationals and the activities involving only them in the specified areas under Jordan’s
sovereignty, and measures can be taken in the areas by Israel to enforce such laws.
The Nationality Principle
The nationality principle implies that a State jurisdiction extends to its nationals and actions they
take beyond its territory. It is based upon the notion that the link between the State and its
nationals is a personal one independent of location.
Criminal jurisdiction based on the nationality principle is universally accepted. While civil law
countries make extensive use of it, the Common Law countries use it with respect to major
crimes such as murder and treason.
The Common Law countries, however, do not challenge the extensive use of this principle by
other countries.
a) A State may prosecute its nationals for crimes committed anywhere in the world; the ground
of this jurisdiction is known as active nationality principle.
b) Also, it may claim jurisdiction for crimes committed by aliens against their nationals abroad;
the ground of this jurisdiction is known as passive national principle.
This last principle has been viewed as much weaker than the territorial or active nationality
principle as a basis for jurisdiction. It has been considered as a secondary basis for jurisdiction,
and a matter of considerable controversy among States. However, in recent years this principle
has come to be much acceptable by the international community in the sphere of terrorist and
other internationally condemned crimes.
The Protective Principle
The protective principle implies that a State may exercise jurisdiction over an alien who commits
an act outside its territory, which is deemed prejudicial to its security and interests.
It is universally accepted, although there are uncertainties as to its practical extent, particularly as
regard to the acts which may come within its domain. It is justified on the basis of protection of
State’s vital interests, particularly when the alien commits an offence prejudicial to the State,
which is not punishable under the law of the country where he resides and extradition is refused.
Although the protective principle is used as a secondary basis for jurisdiction and in a narrower
sense than the territorial or the nationality principle, it can easily be abused, particularly in order
to undermine the jurisdiction of other States.
In practice however, this principle is applied in those cases where the acts of the person which
take place abroad constitute crimes against the sovereignty of the State, such as plots to
overthrow a government, treason, espionage, forging a currency, economic crimes and breaking
immigration laws and regulations.
This principle is often used in treaties providing for multiple jurisdictional grounds with regard
to specific crimes, such as the 1979 Hostage Convention and the 1970 Hague Aircraft Hijacking
Convention.
Passive personality principle
This is a situation where the accused will be prosecuted in the country of the nationality of the
victim.
The Universality Principle
The universality principle, in its broad sense, implies that a State can claim jurisdiction over
certain crimes committed by any person anywhere in the world, without any required connection
to territory, nationality or special State interest.
Before the Second World War, such universal jurisdiction has been considered as contrary to
International Law by the Common Law countries, except for acts regarded as crimes in all
countries, and crimes against international community as a whole such as piracy and slave trade.
After the Second World War, universal jurisdiction has been universally recognized over certain
acts considered as international crimes. International crimes are those committed against the
international community as a whole or in violation of International Law and punishable under it,
such as war crimes, crimes against peace and crimes against Humanity. In recent years, crimes
such as Hijacking of aircraft, violation of human rights and terrorism, have been added to the list
of international crimes.
Currently, under the universality principle, each State and every State has jurisdiction over any
of the international crimes committed by anyone anywhere.
United States of America v Noriega
General Manuel Noriega on February 14th 1988 was indicted on twelve counts of engaging in a
criminal enterprise in violation of U.S racketeering and drug laws. The indictment alleged that
Noriega participated in an international conspiracy to import cocaine and materials used in
producing cocaine in and out of the United States. He was also alleged to have protected
shipments of cocaine from Columbia through Panama to the U.S. All these activities were
allegedly taken for Noriega’s own profit.
Noriega asserted that the case against him should be dismissed because:
a) The District court of Florida lacked jurisdiction
b) Sovereign immunity precluded the exercise of jurisdiction
c) He was captured and brought before the court as a result of an illegal military invasion
d) A violation of international treaties had occurred.
The court found that it had extra-territorial jurisdiction as such jurisdiction was upheld in the past
over foreigners who conspired or intended to import narcotics into the United States. The crimes
that Noriega was charged with were intended to have extra-territorial effects as such the court’s
jurisdiction was reasonable.
Jurisdiction was also justified under the protective principle which permits the exercise of
jurisdiction over acts that threaten the existence of a state and have potentially deleterious effects
in the state. The alleged importation certain pounds of cocaine would have harmful effects.
As for the question of immunity, recent international practices have drawn a distinction between
private and public acts entitled to immunity. As with states, immunity is extended to public
officials for acts executed in their official capacity. Since the acts carried out by Noriega were
for his personal gain, he was not entitled to immunity.
The head of state immunity applies where one is recognized as the head of state by the
immunizing state. In Noriega’s case it was evident that he was not recognized as the head of state
by the Panamian constitution or by the United States.
Limits In The Exercise of Jurisdiction.
Customary international law has provided that a state should not prescribe its jurisdiction hence
doing so would be unreasonable. Such reasonability is based on certain factors, i.e. link of the
activity to the regulating state, foreseeable effects in the state and the extent to which the
regulations is consistent with the practice of the international system.
IMMUNITY OF THE SOVEREIGN
Immunity of the sovereign under international law is the immunity a foreign state enjoys from
the jurisdiction of the forum. The rationale for this immunity is the need not to degrade the
dignity of the foreign nation, its organs and representative and to leave them unconstrained in
pursuing their mission.
This immunity can operate in two ways:
i. As a bar to jurisdiction.
The jurisdiction of the forum is barred; the state of the forum would exercise jurisdiction but for
the immunity.
ii. By making the subject matter non-justiciable or inadmissible.
The state of the forum has no jurisdiction; the jurisdiction never existed. In Buck V. A.-G the
Court of Appeal refused to declare whether or not the Constitution of Sierra Leone as created by
Order in Council of independence was valid. The reason given was the non-existent of
jurisdiction, a corollary of sovereign immunity.
Immunity is based on two principles:
a. Par in parem non habet jurisdictionem: legal persons of equal standing cannot have disputes
settled in the courts of one of them. This principle brings out the element of pleading immunity
by reason of the status of the defendant, that is, immunityratione personae
b. Non-intervention in the internal affairs of other states. The nature of the subject matter will
lead a municipal court to hold that it has no jurisdiction. This immunity affects essential
competence of the local courts in relation to the subject matter, that is, immunity ratione
materiae.
The Extent of Sovereign Immunity
State activity in the commercial sector has led courts such as those in Belgium and Italy to
differentiate between acts of government (jure imperii) and acts of a commercial nature (jure
gestionis). Immunity is availed with respect to the former but not the latter. This is the doctrine
of restrictive immunity.
There are several ways in which this doctrine finds application. These are:
i. As has been stated by differentiating between jure imperii and jure gestionis.
The municipal court will make the distinction based on whether there is a key transaction which
has been accomplished by way of a private law relationship for example a contract. This criterion
without further input is unsatisfactory when applied to a contract of employment where the
employee has been recruited to perform particular functions in the exercise of governmental
authority. Applying this criterion it would mean that this contract of employment is jure
gestionis.
ii. By municipal legislation
Under this method, immunity is provided as a general rule and further provision is made for
exceptions. This method has been adopted by United Kingdom.
iii. By treaty
This has been done through the United Nations Convention on Jurisdictional Immunities of
States and their Property, 2004. This treaty has been ratified by 32 states as at 28/10/2013. Kenya
is not a signatory to this treaty.
This convention generally denies a foreign state the right to invoke immunity with respect to
commercial transactions, contracts of employment, pecuniary compensation for personal injuries
and damage to property. It however provides for exceptions, one of them being by agreement.
Article 11 (1) provides that unless otherwise agreed between the states concerned, a state cannot
invoke immunity from the jurisdiction before a court of another state which is otherwise
competent in a proceeding which relates to a contract of employment between the state and an
individual for work performed or to be performed, in whole or in part, in the territory of that
other State. Paragraph 2 of this Article details the exceptions to paragraph 1. For instance,
Paragraph 1 does not apply where the employee has been recruited to perform particular
functions in the exercise of governmental authority.
iv. By waiver.
Immunity can be waived expressly or by conduct. Examples of waivers include prior contract,
through a treaty, diplomatic communication, and actual submission to the proceedings of the
local court.
The fact that a state has waived its immunity from the jurisdiction of the forum does not
necessarily mean that that state has waived its immunity to execution. This position is reflected
in Article 19 of United Nations Convention on Jurisdictional Immunities of States and their
Property, 2004. Under this Article property used or intended to be used by the state for
government non-commercial purposes cannot be attached. Article 21 gives the categories of
properties that cannot be subject to execution. One of the categories is a bank account used or
intended to be used in the performance of the functions of the diplomatic mission of the state or
its consular posts.
DIPLOMATIC IMMUNITY
INTRODUCTION
Diplomacy comprises of any means by which states establish or maintain mutual relations,
communicate with each other or carry out political or legal transactions. It involves the exchange
of permanent diplomatic missions between sates such that both the receiving and the sending
state have representatives.
Rationale of privileges and immunities
The essence of diplomatic relations is to allow the exercise by the sending government, of state
functions, on the territory of receiving state by license of the latter.
The explanation for this, though not supported by the legal position, was that the diplomatic
premises were “exterritorial”, that is, they acquired the territorial jurisdiction of the sending state.
However the legal position is that the diplomat acts as an agent of a sovereign state which in this
case is the sending state.
INVIOLABILITY OF MISSIONS
a. Premises
The mission premises including the surrounding land benefit from the immunity of the sending
state and hence are protected from any external interference.
Article 22 of the Vienna convention states that:
• The premises of the mission shall be inviolable. The agents of the receiving state may not enter
them, except with the consent of the head of mission.
• The receiving state is under a special duty to protect the premises.
• The premises, furnishings and other property are immune from search, requisition, attachment
or execution.
b. Archives, documents and official correspondence
The archives and documents of the mission, at any time and wherever they may be, are
inviolable including the official correspondence . The Vienna Convention also provides that the
diplomatic bag shall not be opened or detained at any time.
However the situation is different in the U.K where, due to abuse of the diplomatic bag through
the sale of drugs, scanning of the bags is done on specific occasions when there are strong
grounds of suspicion but ONLY in the presence of a member of the diplomatic mission.
INVIOLABILITY OF DIPLOMATIC AGENTS
This is provided for in article 29 which states:
“The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest
or detention. The receiving State shall treat him with due respect and shall take all appropriate
steps to prevent any attack on his person, freedom or dignity.”
The same inviolability of the diplomatic agent applies to the private residence of the agent and
all his papers, correspondence and his property . There is however an exception to the
inviolability of the property as provided in article 31(3).
In the case concerning United States diplomatic and consular staff in Tehran the Iran government
was universally condemned when it held members of the United States embassy in Tehran as
hostages from 1979 to 1981, following the admission of the deposed Shah of Iran into the United
States for medical treatment. In finding that the government of Iran had violated its obligations
under international law, in its judgment, the International Court of Justice stressed on the
principles of laws embodied in the Vienna convention “the obligations of the Iranian government
here in question is not merely contractual…but also obligations under general international law.
In that case the government of Iran was held responsible for failing to prevent or for
subsequently approving, the actions of militants in invading the United States mission in Tehran
and holding the diplomatic and consular personnel as hostages.
PERSONAL IMMUNITIES FROM LOCAL JURISDICTION
Introduction
Diplomatic agents enjoy immunity from the jurisdiction of the local courts and not an exemption
from substantive law. However the immunity can be waived allowing the application of the local
law.
The persons enjoying the privileges and immunity are however under a duty to respect the laws
and regulations of the receiving state . In the application of immunity from local jurisdiction,
every state has a standard procedure which establishes the qualification for immunity to be
conclusive prove to the local courts.
Persons who enjoy diplomatic immunity
a. Members of the family of a diplomatic agent if they are not nationals of the receiving state.
b. Members of the administrative and technical staff of the mission together with their families if
they are not national or permanent residents of the receiving state. However, the immunity from
civil and administrative jurisdiction of the receiving state
shall not extend to acts performed outside the course of their duties.
c. Members of the service staff who are not nationals or permanent residents of the receiving
state but only in respect of the acts performed in the course of their official duties.
d. Private servants of members of the mission who are not nationals of or permanent residents in
the receiving State are exempted from dues and taxes on the emoluments they receive by reason
of their employment. They may enjoy the privileges and immunities only to the extent admitted
by the receiving state.
A. Immunity from criminal jurisdiction
Article 31(1) provides that a diplomatic agent shall enjoy immunity from the criminal
jurisdiction of the receiving state.
B. Immunity from civil and administrative jurisdiction
A diplomatic agent is immune from the civil and administrative jurisdiction of the receiving state
except in the case of :
a) A real action relating to private immovable property situated in the territory of the receiving
State, unless he holds it on behalf of the sending State for the purposes of the mission;
(b) An action relating to succession in which the diplomatic agent is involved as executor,
administrator, heir or legatee as a private person and not on behalf of the sending State;
(c) An action relating to any professional or commercial activity exercised by the diplomatic
agent in the receiving State outside his official functions.
C. Waiver
The sending state may waive the immunity from jurisdiction; however, the waiver must be
express and not implied .
D. Immunity from jurisdiction for official acts
In regard to acts by the diplomatic agent which are in line with his official duties, the immunity
is permanent since it is that of the sending state. However in respect to private acts immunity
ceases when the agent leaves his post.
Other immunities
 Exemption from all duties and taxes but with exceptions e.g. indirect taxes incorporated in the
prices of goods and services.
 Immunities concerning custom duties, public service, military obligations, social security
provisions and giving evidence as witnesses.
DURATION OF PRIVILEGES AND IMMUNITIES
This is covered under section 39 which provides:
1. Every person entitled to privileges and immunities shall enjoy them from the moment he
enters the territory of the receiving State on proceeding to take up his post or, if already in its
territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs
or such other ministry as may be agreed.
2. When the functions of a person enjoying privileges and immunities have come to an end, such
privileges and immunities shall normally cease at the moment when he leaves the country, or on
expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of
armed conflict. However, with respect to acts performed by such a person in the exercise of his
functions as a member of the mission, immunity shall continue to subsist.
Termination of the mission may occur:
 Through the recall of the diplomatic mission
 Outbreak of war between the states concerned
 Extinction of one of the states concerned.
CONSULAR RELATIONS
A consul is defined as an official appointed by a government to reside in a foreign country herein
the host and represent his or her government’s commercial interests and assist in the welfare of
its citizens in that host country. Their functions are varied and include the protection of the
sending states and its nationals, development of economic, cultural relations, issuing of passports
among other functions .The current term consul began use in the 18th century and is based upon
law rather than the general usage. There is a special treaty known as theVienna Convention on
Consular Relations of 1963 (VCCR).
A consul must have the authority of sending state and authorization of receiving state which
must give consular officials and premises special protection
CONSULAR IMMUNITY ANALYSIS
INTRODUCTION
The premise of consular immunity is enshrined in the Vienna Convention on Consular Relations
of 1963 (VCCR). Consular immunity is a principle in international law that shields consuls from
legal action or prosecution in their host country. Consular immunity basically offers protections
similar to diplomatic immunity, but the herein said protections are not as extensive, given the
functional differences between consuls and diplomats.
Together with the Vienna Convention on Diplomatic Relations (VCDR), VCCR forms the core
of international diplomatic and consular law. The two treaties codified most modern consular and
diplomatic practices including the famous immunity principle under discussion here.
Unlike diplomats there may be many consul offices set up in one host country. There are two
types of consuls: career consuls and honorary consuls
Career consuls: are professional salaried diplomats that are posted by the government of their
native countries in host countries. They further enjoy immunity
Honorary consuls: they don’t make a living as diplomats. They usually live and work and pay
taxes in the host country that they operate on a voluntary/not salaried basis until their
appointment is revoked. In some cases they might not be citizens or origin of that country
THE CONCEPT OF CONSULAR IMMUNITY
The essence of immunity is very important and core to the functions of the consuls since it
provides a workable environment for the consuls without the interruption by the host states in the
discharge of their duties. However host states have the power to declare a consul or a diplomat
persona non grata (‘an unwelcome person’) of which now the home country has to replace him
or her with another consul or diplomat. This is the most serious form of censure a state can apply
to foreign consuls and diplomats who are otherwise protected by consular and diplomatic
immunity from arrest and normal prosecutions.
The immunity is provided according to the consular officer’s rank in a consular post and
according to the need for immunity in performing their duties. Consular officers are not however
accorded absolute immunity from a host country’s criminal jurisdiction, they may be tried for
certain local crimes upon action by a local court and are immune from local jurisdiction only in
cases directly relating to consular functions.
Consuls serve in consulates hence have special protections and privileges in the places they are
posted. However, they have a lower level of criminal and civil immunity than that of diplomatic
officers. They are only immune to as far as acts performed as part of their official duties are
concerned.
The various such consular immunities given to the consular officials among the career consuls
include;
(a) Criminal and civil suit immunities
(b) Exemption from tax, work permit social security, custom duties and inspection
(c) Immunity from arrests by the law enforcement agencies
(d) Exempted from all public services including military obligations
Further the premises of consular are not inviolable from entry by agents of the receiving state in
respect to acts performed in the exercise of consular functions . However the premises are to
receive protection and security from the host country.
Princess Zizianoff v Khan & Bigelow
In 1926, a Princess Zizianoff, originally of Russia, sued Consul Bigelow for defamation of
character in a French court. Mr. Bigelow was an American official working for the American
Consulate General in Paris and in charge of passports and visas. After turning down the Princess
for a visa to enter the United States, he shared his rationale for the visa denial with the press,
including the accusation that Princess Zizianoff was an international spy. Bigelow, along with
persons associated with the Paris office of the Boston Sunday Post, was successfully sued by the
Princess in 1927 at the bar of the Conventional Tribunal of the Seine. On Bigelow’s appeal, the
case made its way to the Court of Appeal of Paris in 1928. The court ruled that the 1853
Consular Convention did not protect him from what the court called a “private act,” providing
negative information about the Princess to the public via the public press. The question for the
court was whether Bigelow’s action fell outside the purview of his official duties, and it ruled
that his action did so. Undoubtedly, the 1963 Consular Convention would not protect a consular
officer performing an injurious private act.
SITUATIONS OF IMPUNITY VERSUS IMMUNITY
There have been recent actions by consuls and diplomats that have cast the spotlight on the
meaning and role of ‘immunity’. This has involved consular officers and diplomats who use
immunity as a ‘Get out of jail free’ card after murders, drug trafficking and sexual crimes. The
concept has been dragged through many more mud of evils including;
(a) Drug trafficking
(b) Sexual crimes
(c) Murders
(d) Reckless and dangerous driving
(e) Human slavery
(f) Firearm trafficking
The consuls involved have left trails of unpaid bills and sexual crimes which have become the
most common results of the abuse of the concept of consular impunity.
The increased public cries for more monitoring and usage of the concept to prevent abuse have
led to Mr. Joshua Muravchik, a UN critic of the American Enterprise Institute comment
concerning this increasingly alarming abuse of the concept.
Immunity, he says, ‘Invites abuse. And sure enough, the invitation has been accepted’
In almost every continent, the countries in one way or the other experienced the mixture of
impunity and immunity. An example in the USA, consular are accused of getting tax-exempt real
estates as part of the immunity they get from the host state only for some unscrupulous consuls
to use the property to turn a profit.
Reckless and drunk driving and drug trafficking have been too common of the diplomats and the
consular officers. The culprits always don’t end up facing suits since they are often let go
because of the protection by the consular immunity.
WHAT HAPPENS WHEN IMPUNITY HIDES WITHIN THE COVERS OF IMMUNITY?
Immunity as has been discussed is the general exemption of certain entities such as sovereign,
diplomats and consulars from the operation of local law . Impunity is the exemption from
punishment or the immunity from the detrimental effects of one’s actions .
The Oxford Dictionary has defined impunity as exemption from punishment or freedom from the
injurious actions of an action. Sovereign immunity is a government’s immunity from being sued
in its own courts without its consent.
Therefore these two terms are interlinked in that entities with immunity consequently have
impunity in certain instances. These terms also overlap in that sometimes persons accorded
immunity commit crimes and their immunity prevents them from being prosecuted against the
said crimes.
It has been held that immunity often allows the entities accorded immunity to act with impunity.
“Acting with impunity” means breaking the law with the knowledge that one is exempt from
punishment by municipal law. This was seen in the incident involving Grace Mugabe, the wife to
the President of Zimbabwe Robert Mugabe. She assaulted a journalist who was taking
photographs of her. The immunity accorded to her by virtue of being the President’s wife was
upheld and no action was taken against her. The journalist posed the question whether such a
criminal offence should go unprosecuted and unpunished simply because the perpetrator has
immunity.
1. Sovereign immunity can be lifted in cases where a sovereign state commits acts that are jure
imperii in breach of jus cogens.
Jure imperii refers to the public acts that a nation undertakes as a sovereign state, for which the
sovereign is usually immune from suit or liability in a foreign country. Public acts are those that
are carried out by state representatives such as diplomats. These can be contrasted with private
acts, referred to as acts jure gestionis which include trade and commercial activities carried out
by a state which are not protected by immunity.
This position was held by the Hellenic Supreme Court in Prefecture of Voiotia v Federal
Republic of Germany .In this case, Greek nationals sued the Federal Republic of Germany for
war crimes (murder, illegal detention and wanton destruction) perpetrated by the German army
occupying their village in 1944. The Greek Supreme Court found in their favor and awarded
them damages to the tune of 20 million Euro for atrocities including murder and destruction of
private property that were committed by the German occupation forces in the village of Distomo
on 10th June 1944.
2. Sovereign immunity to a former Head of State in respect of acts carried out in the exercise of
his official functions as a Head of State can be lifted if they were in breach of jus cogens.
Just like state immunity, a Head of State enjoys immunity in respect of acts jure imperii while in
office and after leaving office.
Torture was listed as one of the crimes in which state immunity has to be waived in order to
prosecute former heads of states in R v Evans and others, ex parte Pinochet Ugarte.
In this case, Augusto Pinochet was President of the military junta which overthrew the
government of President Allende. This military ruled Chile from September 1973 to June 1974.
From 1974 until March 1999 Augusto Pinochet, although unelected, held office as the President
of Chile. He was a Chilean national. Throughout this period Chilean nationals and citizens of
Spain, Switzerland, France and other countries were arbitrarily imprisoned and tortured and up to
4,000 persons disappeared or were killed as part of a government policy to eliminate political
opposition. In 1998 Pinochet came to the UK to receive medical treatment. During his stay in the
UK Spain applied for a warrant to extradite him to face charges of genocide, attempted murder,
torture, hostage-taking and conspiracy. Two warrants were issued for his arrest.
He applied to the Divisional Court for judicial review of the issue of the warrants and sought an
order of certiorari to quash the issue of the two warrants. The Spanish government seeking
extradition argued that under the State Immunity Act 1978 and Diplomatic Privileges Act 1964,
immunity did not extend to a certain class of criminal acts that are contrary to international law
and the accepted moral law. These are: crimes against humanity, genocide, torture and the taking
of hostages.
Pinochet’s application was granted and relief given by certiorari to quash both warrants. The
Spanish government and the Crown Prosecution Service (which had instituted the case together
with the Spanish Government) appealed to the House of Lords. The majority of the House of
Lords held that the Criminal Justice Act 1988 removed immunity from a former Head of State in
respect of acts carried out in the exercise of his official functions as Head of State, if they were in
breach of jus cogens and irrespective of whether or not a Head of State is still in office.
In discussing whether or not torture warranted the waiver of immunity accorded to Heads of
States, Lord Browne-Wilkinson said “…under the Convention (Torture Convention) the
international crime of torture can only be committed by an official or someone in an official
capacity. They would all be entitled to immunity. It would follow that there can be no case
outside Chile in which successful prosecution for torture can be brought unless the state of Chile
is prepared to waive its rights to official’ immunity…all these factors together demonstrate that
the notion of continued immunity for ex-Heads of States is inconsistent with the provisions of
the Torture Convention.”
Similarly, Charles Taylor, the former President of Liberia was prosecuted against for 11 crimes
against humanity which included terrorism, rape, murder, and the use of child soldiers by rebel
groups in the neighboring Sierra Leone between 1991 and 2002. He was convicted and sentenced
to serve 50 years in prison.
As aforementioned, immunity accorded to Heads of States can be lifted in respect of crimes
against humanity even when they are in power because these crimes are regarded as being in
breach of jus cogens. This explains the ongoing cases against President Uhuru Kenyatta and
Deputy President William Ruto .
3. Diplomatic immunity accorded to representatives of states can be waived by the sending state.
This is stipulated in Article 32(1) of the Vienna Convention on Diplomatic Relations 1961.
However waiver must be express. Where a government waives the immunity for the state
representative, he/she can be prosecuted in the host country.
This was witnessed in the case R v Dwight Sagaray and 4 others. This was the case that was
instituted to prosecute suspects for the death of the Venezuelan diplomat to Kenya, Olga
Foncesa. In this case, the Kenyan government applied to the Venezuelan government to waive
First Secretary Dwight Sagaray’s diplomatic immunity. The Venezuelan government obliged and
Dwight Sagaray was arrested and arraigned in Kenya’s court where he was charged with the
murder of Olga Foncesca.
Similarly in the US in January 1997, the Deputy Ambassador of the Republic of Georgia
GueorguiMakharadze, caused an accident that killed a sixteen-year-old girl due to his driving
while drunk. At first his immunity was upheld and consequently no action was taken against
him. Following a wide national outcry, the US government asked the Georgia government for a
waiver of the diplomat’s immunity. The Georgia President Eduard Shevardnadze waived his
immunity and consequently he was prosecuted. He was convicted of involuntary manslaughter
and aggravated assault and sentenced to 7-21 years.
4. A state representative can choose to waive the immunity accorded him/her.
Provision for this is made in the Diplomat and Privileges and Immunity Act of 1970 with regards
to consulars. The said Act however does not make express provisions for waiver of diplomatic
immunity. Neither does it stipulate that a diplomat requires the approval of his state before
waiving immunity. Therefore it can be inferred that a diplomat can opt to waive his or her own
immunity.
Article 32(4) Vienna Convention on Diplomatic Relations provides that waiver of immunity
from civil and criminal jurisdiction shall not be held to imply waiver in execution of the
judgment made against the diplomat. A separate waiver has to be made to enable the
enforcement of the judgment.
In conclusion, express provisions need to be made for the lifting of immunity in cases where the
persons accorded immunity commit crimes against humanity, for example in the Vienna
Convention on Diplomatic Relations. This will ensure that diplomats and states do not engage in
misdemeanors and offences with impunity.