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K. KHUTSISHVILI, SHALL PROTECTION OF SOVEREIGN IMMUNITIES SUPERSEDE PROTECTION...
subsequent practice of the UN SC has shown
that the situation with regard to the human
rights protection has been recognized as a
threat to international peace and security and
international criminal tribunals have been set
up by the UN to judge leaders of individual
states notwithstanding their sovereign equality
with other states. If the Security Council
decide that a threat to or a breach of peace
and security are caused by the actions of high
level officials which at the same time cause
human rights atrocities, the Security Council
shall be authorized along with other measures
to pronounce that these criminal leaders fall
under universal jurisdiction and may be prosecuted
for commission of international crimes
by courts of any nation. The Security Council
can rule this even in respect of the criminal
leaders or high ranking officials even when they
are still in office.
The Statute of the International Criminal
Court recognizes possibility of lifting the immunity
of those leaders in order to punish
them for international crimes. Therefore, the
conclusion that the universal jurisdiction over
crimes belonging to the group of “international
crimes” must be recognized, giving world
community a possibility to prosecute and judge
criminal leaders for human rights atrocities and
the Security Council (as a political body) as
well as the International Court of Justice (as a
judicial body) can be well used as balancing
international bodies able to oversee and control
the maintenance of sovereign equality
among states, but at the same time, ensuring
that the most heinous atrocities do not go unpunished
due to legal limitations and gaps.
Conclusion: sovereign equality of states,
immunity of heads of states and other high
ranking policy makers does not mean that
egregious human rights atrocities shall be tolerated
and allowed by them. If the theory of
humanitarian intervention seems to be emerging
and becoming an established form of intervention
into domestic matters of sovereign
states, when the human tragedy reaches unimaginable
scale, when there is a principle of
universal jurisdiction existing for the most atrocious
crimes, the right of any state to try the
highest ranking officials must be recognized
as a solid rule of law and must be observed at
all times to serve justice and protect thousands
from undeserved violation of their rights. The
Idea of human rights protection has already
transgressed state boundaries and has become
a concern of wider international community.
Promotion and protection of victims of
atrocities is particularly attracting speeches of
political leaders and has become a part of at
least the declared political agendas of the
mighty. Apart from technical problems, related
to apprehension and serving sentences
there shall not be any additional prescriptions
barring prosecution of highest ranking officials,
responsible for mass human rights atrocities.
After all, do any of the immunities cost a thing
vis-À-vis the outcry of victims of mass atrocities
In the era of human rights protection judging
only lower-ranking criminals and allowing
those who mastermind and direct mass human
rights atrocities to claim immunities must
not be tolerated. At the same time, a group of
people entitled to the immunities may be expanded,
taking into account the contemporary
developments of interstate relations and there
may be more perpetrators emerging shielding
behind the immunity in the age when humanitarian
intervention for the most outrageous
crimes seem to be becoming a part of
contemporary international law.
In the world, where human rights protection
is no longer considered to be exclusively
internal matter of a sovereign state, where
elections monitoring is undertaken by international
observers and international organizations
can reach as far as prison cells in any
given state, the notion of state immunity and
inviolability of state officials responsible for
gravest human rights atrocities shall not be
staying outside the reach of any state and within
the compound of sovereign state, which
most probably will do nothing to deal with the
matter. Atrocities must be punished. Only ad
hoc international criminal tribunals will not suffice
to achieve this goal. The “complementarity”
principle of the International Criminal Court
has its negative sides. Therefore, recognition
of universal criminal jurisdiction over most
egregious – or international crimes – must be
the way forward and towards recognition of
unavoidable punishment. Those deserving
must be punished and state immunity can not
be shamelessly be used to escape the deserved
punishment.
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