Prosecuting International Crimes in Africa - PULP - University of ...

CHAPTER
2
1 Introduction
IMMUNITY OF STATE OFFICIALS
AND THE PROSECUTION OF
INTERNATIONAL CRIMES
* LL.B (Hons) (Dar es Salaam); LL.M; LL.D Candidate (Pretoria); Advocate of the High
Court of Tanzania.
1 See eg G Robertson Crimes against humanity: The struggle for global justice (2002) 403-426;
SK Kapoor International law and human rights (2007) 216-223; MN Shaw International
law (2003) 621-692; J Dugard (2005) 238-265; I Detter International legal order (1994)
456-463; H Leuterpacht ‘The problem of jurisdictional immunities of foreign states’
(1951) 28 British Yearbook of International Law 265; R Higgins ‘Certain unresolved
aspects of the law of state immunity’ (1982) 29 Netherlands International Law Review 265;
H Fox ‘State immunity and the international crime of torture’ (2006) 2 European Human
Rights Law Reports 142; L McGregor ‘State immunity and jus cogens’ (2006) 55
International and Comparative Law Quarterly 437-445; A Orakhelashvili Peremptory norms
2
in international law (2006) 320.
Upon a thorough reading on immunities, one finds terms such as ‘sovereign immunity’,
‘sovereignty’, ‘foreign sovereign immunity’, ‘foreign state immunity’, ‘state immunity’,
‘state sovereign immunity’, ‘act of state’, ‘state responsibility’, ‘diplomatic and consular
immunity’, ‘impunity’, ‘amnesty’, ‘immunity of international organisations’,
3
‘immunity attaching to multilateral forces abroad’, ‘jurisdictional immunity’,
‘inviolability’, ‘immunity from procedural enforcement’, ‘immunity from execution’
and ‘immunity from prosecution’.
I Sinclair ‘The law of sovereign immunity: Recent developments’ (1980) II Hague
Recueil des Cours 113, 167.
33
Chacha Murungu*
The literature on the subject of immunity is diverse and confusing. 1 The
large body of literature on the topic does not share a common and
consistent definition on immunity of state officials. There are a number of
terms that have been used interchangeably with ‘immunity of state
officials’. 2 Sinclair writes that sovereign immunity in the strict sense of the
term has to be taken to refer to the ‘immunity which a personal sovereign
or head of state enjoys when present in the territory of another state’. 3 This
definition equates state immunity with immunity of state officials and as
such is confusing. It is this confusion that makes it necessary to explain
what ‘immunity of state officials’ means. State immunity and immunity of
state officials – though akin to each other – are distinct from each other. A
meaningful distinction is provided by Broomhall. He writes: ‘[i]mmunities