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

Immunity of state officials and prosecution of international crimes 35
‘immunity’ is termed ‘kinga dhidi ya mashtaka,’ 7 which refers to ‘immunity
from prosecution’. In other words, immunity means exception, resistance,
exemption, protection or invulnerability. It may also mean any exemption
from a duty, liability or service of process; especially such an exemption
granted to a public official. According to the Concise Law Dictionary,
immunity is a
personal favour granted by law contrary to the general rule. An immunity is a
right peculiar to some individual or body; an exemption from some general
duty or burden; a personal benefit or favour granted by law contrary to the
general rule. Freedom from liability; exemption conferred by any law, from a
general rule ... [It can also mean] freedom or exemptions from penalty,
burden or duty. 8
Thus, ‘immunity from prosecution’ means withdrawal from prosecution.
Immunity may be exercised at any time in the course of the trial, but before
judgment is delivered. 9 Hence, it means an exception or a bar to
prosecution for crimes. According to Schabas, immunity is ‘a defence’ 10
under international criminal law. This opinion is also shared by Van
Schaack and Slye. 11 It therefore constitutes a defence to international
criminal responsibility for individuals accused of international crimes.
Whether this defence of immunity is enforceable under international law
is a contentious subject. However, it suffices at this early point to regard it
as a kind of defence or ground that is commonly raised by state officials
when subjected to international criminal proceedings.
Immunity may also be characterised as a barrier to individual
accountability. 12 It is a ground that excludes the criminal responsibility of
an individual. It ‘has the effect of rendering inadmissible any action
brought against the person who invokes it’. 13
After this attempt to clarify the terms ‘immunity’ and ‘state officials’,
then we next examine developments regarding the immunity of state
officials under international law.
7 See art 46 Constitution of the United Republic of Tanzania, 1977 (official version in
Kiswahili (2005)).
8
PR Aiyar Concise Law Dictionary: With legal maxims, Latin terms and words and phrases
(2005) 549-550; Jashir Singh v Vipin Kumar Jaggi AIR 2001 SC 2734.
9 Aiyar (as above).
10
WA Schabas An introduction to the International Criminal Court (2007) 231.
11 B van Schaack and RC Slye International criminal law and its enforcement: Cases and
materials (2007) 865-874.
12
DP Stewart ‘Immunity and accountability: More continuity than change?’(2005) 99
American Society International Law Proceedings 227 228.
13 See Dissenting Opinion of Judge Jean Yves De Cara in the Case Concerning Certain
Criminal Proceedings in France (Republic of the Congo v France) Provisional Measures Order of
17 June 2003, ICJ Reports (2003) 102, 122.