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

Immunity of state officials and prosecution of international crimes 37
international law’ 20 and it is largely a matter of custom. The customary
nature of the immunity of state officials is justified and based on state and
certain judicial practices. 21 The International Court of Justice (ICJ) has
accepted that the immunity of state officials originates from customary
international law. 22 The ICJ observed so despite the existence of certain
international conventions imposing obligations on states to prosecute and
punish individuals who commit international crimes, thereby outlawing
the defence of immunity of state officials.
Historically, state officials were not subjected to criminal responsibility
for their actions because of a merger of the ‘sovereign’ and the ‘sovereignty
of the state’. 23 Immunity followed in the first place from the divine right of
kings: ‘you could not put an infallible ruler on trial since, if you did, the
verdict must always go in his favour’. 24 The king was deemed an infallible
and could not do any wrong in his own state or be sued in his own courts.
With the establishment of secular states, their rulers became less known as
kings but as heads of state or governments, referred to as ‘state officials’.
Orakhelashvili observes that ‘historically, the original concept of
immunity of high level state officials, such as heads of state arose from the
fact that they represent their states and to sue [them] was tantamount to
suing an independent state’. 25 This position is supported by Burns who
argues that state officials ‘have with few exceptions been able to avoid
responsibility for their conduct by wrapping themselves up in the blanket
of state sovereignty ...’. 26 But, the state and its officials are distinct and
19 Blaškić (Case IT-95-14-AR 108bis) Judgment on the Request of the Republic of Croatia
for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997 para
41.
20 Schabas (n 11 above) 231.
21 See Amicus Brief in the Matter of David Anyaele and Emmanuel Egbuna v Charles Ghankay
Taylor and Others A submission from the Open Society Justice Initiative to the Federal
High Court of Nigeria, Abuja Division, November 2004 paras 41-44 (on immunitiesstating
that ’while the immunity of diplomats has always been regulated by its own
regime, the immunity of heads of state appears to have been subsumed within state
immunities until relatively recently, owing to the identification of the state with its
ruler’); D Akande ‘International law immunities and the International Criminal Court’
(2004) 98 American Journal of International Law 407; A Watts ‘The legal position in
international law of heads of states, heads of governments and foreign ministers’ (1994)
III 247 Hague Recueil des Cours 35-81; JL Mallory ‘Resolving the confusion over the
head of state immunity: The defined right of kings’ (1986) 86 Columbia Law Review 169,
177; SK Verma An introduction to public international law (1998) 155 (stating that this
concept is imbibed in customary international law).
22 The Case Concerning the Arrest Warrant of 11 April 2000 (The Democratic Republic of Congo v
Belgium), 2002 ICJ Reports 14 February 2002 paras 58 – 59; Case Concerning Certain
Criminal Proceedings in France (Republic of the Congo v France) Provisional Measures Order of
17 June 2003 ICJ Reports 2003 paras 1-39, particularly paras 1 and 28.
23 MC Bassiouni Crimes against humanity in international criminal law (1999) 505-508
(stating that this is particularly true with respect to monarchies as evidenced by Louis
XIV’s statement: ‘L’etat c’est moi’ (meaning that ‘the state is me’, - my own translation).
24 Robertson (n 1 above) 403.
25 Orakhelashvili (n 1 above) 320; Y Simbeye Immunity and international criminal law
26
(2004) 105-109.
P Burns ‘An international criminal tribunal: The difficult union of principle and
politics’ (1994) 5 Criminal Law Forum 341 342.