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K. KHUTSISHVILI, SHALL PROTECTION OF SOVEREIGN IMMUNITIES SUPERSEDE PROTECTION...
ternational crimes perpetrated by those representing
state and claiming respective immunity
from prosecution 37 .With the gradual development
of human rights doctrine plodding
erosion of doctrine of sovereign immunity took
place.
It is broadly accepted that the Nuremberg
Charter and its Judgment stand as cornerstones
in recognizing the concept of individual
criminal responsibility for international
crimes, including of those protected by immunities.
However, before the Nuremberg trials
there was the Versailles Treaty 38 and for our
analysis it is important to mention that the first
wave of change was noticed already after the
World War I 39 , when the Kaiser Wilhelm II was
announced to be falling under the jurisdiction
of a “special tribunalp constituted to try the
accused.” 40 The Report of the Commission on
the Responsibilities of the Authors of the War
on the Enforcement of Penalties further stated:
“… the Commission desire to state expressly
that in the hierarchy of persons in
authority, there is no reason why rank, however
exalted, should in any circumstances protect
the holder of it from responsibility when
that responsibility has been established before
a properly constituted tribunal. This extends
even to the case of heads of states”. 41
Though this was a considerable challenge to
the notion of state sovereignty at the early
stage of change of perception in this regard,
the Report of the Commission further “proposed
the establishment of a high tribunal
composed of judges drawn from many nations,
and included the possibility of the trial before
that tribunal of a former head of a state with
the consent of that state itself secured by articles
in the Treaty of Peace.” 42 The reservation
referring to the “consent of [the] state”
can be understood if we take into consideration
level of development of the concept of
individual criminal responsibility for grave international
crimes of persons covered by immunities
at the time when the Versailles Treaty
was concluded. Despite this reservation, the
stated principle remains to be an important
breakthrough in the perception of interrelation
of state sovereignty and protection of
humans from outrageous carnage. The same
Report further noted: “If the immunity of a sovereign
[…] would involve laying down the principle
that the greatest outrages against the
laws and customs of war and the laws of humanity,
if proved against him, could in no circumstances
be punished […] such a conclusion
would shock the conscience of civilized
mankind.” 43
Thus, even though in an extremely rudimentary
form and even though, never realized
in practice, the conclusions after the
World War I recognized possibility of neglecting
the absolute protection of sovereign immunity
and subjecting even Sovereign to prosecution
for exceptional outrages. 44 Therefore
the Versailles Treaty stands out for its initial
and at that time unprecedented recognition
of criminal responsibility of a head of state.
The next positive development in relation
to disregarding the claim of immunities was
marked at Nuremberg, where prosecution of
the highest level state representatives for international
crimes took place. “The [IMT] Charter
did… establish unequivocally, the principle
of individual criminal responsibility under
international criminal law… irrespective of any
mandates under national law, and irrespective
of the doctrine of Act of State and other
immunities...” 45
The pronouncement by the Nuremberg
Tribunal of individual criminal responsibility for
international crimes was not an end to development
of this concept. Developments in international
law prompted a need for further
elaboration of the principles, and the Nuremberg
Principles 46 followed, reaffirming importance
and overall recognition of a principle of
criminal responsibility of leaders perpetrating
international crimes.
As Cassese argues, “[t]he traditional rule
whereby senior State officials may not be held
accountable for acts performed in the discharge
of their official duties was significantly
undermined after the Second World War, when
international treaties and judicial decisions
upheld the principle that this ‘shield’ no longer
protects those senior State officials accused
of war crimes, crimes against peace, or crimes
against humanity. More recently, this principle
has been extended to torture and other
international crimes.” 47 The re-established
world order needed some more time to once
again return to the principle recognized by the
Article 7 of the International Military Tribunal
Charter and try highest ranking state officials,
when they ignored plea for justice of thousands
of their own or other states’ nationals
and perpetrated international crimes. This
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