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saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
opposable before the courts of a foreign State,
even where those courts exercise an extended
criminal jurisdiction on the basis of various
international conventions on the prevention
and punishment of certain serious crimes.” 79
The Court “conclude[d] that immunity does not
mean impunity.” Unfortunately, however, this is
exactly what it means. The four grounds enumerated
by the International Court of Justice 80
almost never work. As Yang argues, “in seeking
to exercise universal jurisdiction over a
foreign State or a foreign national who may
benefit from State immunity, a domestic court
has to satisfy two conditions: first, that the
court has universal jurisdiction, as conferred
by international law; and second, that the foreign
State or the individual does not enjoy
immunity under the circumstances.” 81 This is
exactly the problem. The law and state practice
must develop in a manner to overcome
the principle according to which the high ranking
officials of other states use immunities as
a shield to avoid prosecution for international
crimes, when the four circumstances enumerated
by the ICJ do not work in practice and
they stay at large, not bearing responsibility
for most terrible atrocities.
As it was underlined already, the Versailles
Treaty recognized a possibility of trying a state
leader implicated in perpetration of egregious
crimes. Pinochet case, even though, very limited
in its conclusions, must be considered as
a guideline and a precedent creating case in
the efforts against impunity of the highest level
state officials. However, the concept of holding
the criminal leaders accountable for international
crimes anywhere, so that they are not
able to enjoy impunity in any part of the world,
disrespecting nexus of a crime perpetrated by
them to the state prosecuting them, must turn
to be a rule of customary international law and
states may not be able to claim their sovereign
immunity when putting to justice their criminal
leaders. The Versailles Treaty and Nuremberg
prosecutions laid a good ground for making
this reality. Now, as the sufficient time has
passed and the human rights law has developed
well enough to protect human beings
from the massive atrocities perpetrated by
their or other states’ criminal leaders, quest
for justice may not be shadowed by already
archaic conception of absolute protection of
sovereign immunities. Before making humanitarian
intervention a finally settled rule of international
law, it would be much more appropriate
and practical to recognize universal jurisdiction
over international crimes, perpetrated
by high level state officials, when serving
their term of office and give them as less possibilities
to shield behind armours of protection
of immunities as possible.
VI. CONCLUSION: SHALL IMMUNITIES
CONTINUE TO STAND ON THE WAY TO
THE PROTECTION OF HUMAN RI\GHTS
The essay has demonstrated that protection
of sovereign equality of states and inviolability
of sovereign immunities has been subjected
to considerable restrictions throughout
the 20 th century. Development of human rights
law has prompted and necessitated considerable
changes in the field. As the law progresses,
the development of protection mechanisms
from atrocities must evolve further, and states
must recognize the importance of prosecution
of the criminal leaders for the atrocities they
perpetrate misusing their official capacity and
influence, as well as a state apparatus for that.
If the right of humanitarian intervention
may be recognized as an appropriate mechanism
to employ, when the human rights atrocities
reach unimaginable scales, international
law must allow breach of sovereign immunity
and individual criminal responsibility under the
universal jurisdiction of acting heads of states,
as well as other high level state officials, protected
by immunity. Law must develop in a way
to allow individual criminal responsibility for at
least international crimes to fall under universal
jurisdiction and not to let criminal leaders
to escape justice and seek safe heaven when
the relatively minor perpetrators receive punishment.
It may be enquired, if may there be any
international organization able to pronounce
on lifting the immunity ratione personae from
alleged perpetrators The Security Council of
the United Nations could be such an organ.
“The United Nations Security Council is mandated,
under Chapter VII of the United Nations
Charter, to deal with threats to, or breaches
of, international peace and security. Often
such threats or breaches may and indeed do
result from, among other things, serious
crimes.” 82 The Nuremberg Tribunal recognized
the individual criminal responsibility for the
atrocities of all sorts of political leaders. The
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