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

36 Chapter 2
2 Developments on the immunity of state officials
Recent developments regarding the immunity of state officials under
customary international law and conventional international law are
presented in this section.
2.1 Customary international law
For a principle to attain the status of customary international law it has to
satisfy certain conditions. Customary international law is constituted
through ‘evidence of a general practice accepted as law.’ 14 It consists of the
‘rules which, as a result of state practice over a period of time, have become
accepted as legally binding. A rule of customary law is created by
widespread state practice (usus) coupled with opinio juris, namely, a belief
on the part of the state concerned that international law obliges it, or gives
it a right, to act in a particular way’. 15 State practice may be derived from
official pronouncements of governments to form rules of customary
international law. Opinio juris is an opinion of an existence of law. 16 The
existence of a customary law rule is dependent on widespread – but not
necessarily unanimous – state practice.
The immunity of state officials or persons in their ‘official capacity’ 17
from jurisdiction or prosecution – finds its origin in customary
international law, 18 later developing into convention or treaty
international law. Schabas rightly observes that ‘customary international
law recognises certain degrees of immunity from criminal prosecution for
heads of state and other officials’. 19 Hence it ‘exists by virtue of customary
14 Art 38(1) Statute of the International Court of Justice.
15 See UK Ministry of Defence The Manual of the law of armed conflict (2004) 5 (secs 1.12-
1.12.2); Asylum case (Colombia v Peru) Judgment, 20 November 1950, ICJ Reports
(1950) 126; North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal
Republic of Germany v Netherlands) Judgment, 20 February 1969, ICJ Reports (1969)
paras 70-78; Case Concerning Military and Paramilitary Activities In and Against Nicaragua,
(Nicaragua v USA) Judgment, 27 June 1986, ICJ Reports (1986) paras 77; 183-186; JE
Ackerman and E O’Sullivan Practice and procedure of the International Criminal Tribunal for
the Former Yugoslavia (2000) 2-3; E Kwakwa The international law of armed conflict:
Personal and material fields of application (1992) 30; T Maluwa International law in Post-
Colonial Africa (1999) 5. But see ICTY’s view in Prosecutor v Kuperškić et al (Case IT-95-
16-T), Trial Chamber II, Judgment dated 14 January 2000 para 540.
16 M du Plessis African guide to international criminal justice (2008) vii.
17 Art 27 Rome Statute, 1998, uses the term ‘official capacity’.
18
B Stern ‘Immunities for heads of state: Where do we stand?’ in M Lattimer and P Sands
Justice for crimes against humanity (2003) 73-106, particularly 73 (‘Some of the tenets used
in order to grant immunity to heads of state have their origin in customary international
law…’). But see G Mettraux International crimes and the Ad hoc tribunals (2005) 13
(arguing that identifying customary international law is a daunting task).
19
WA Schabas Genocide in international law (2000) 316; Attorney-General of Israel v Adolf
Eichmann (1968) 36 ILR 18 (District Court of Jerusalem) para 28; Attorney-General of
Israel v Adolf Eichmann (1968) 36 ILR 227 (Supreme Court of Israel) para 14; Prosecutor v