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

38 Chapter 2
must not be confused: the two are different because a state can claim its
own immunity from jurisdiction and execution from courts of other states;
state officials may claim their own personal and functional immunity from
prosecution from such courts too, and even international courts or
criminal tribunals.
Arguably, the traditional doctrine of immunity from jurisdiction
enjoyed by the state and the head of state is based on the principle of state
dignity. This is a notion that a sovereign must not degrade the dignity of
his nation by submitting to the jurisdiction of another state. 27
Consequently, a head of state is not to subject himself to a jurisdiction
incompatible with his dignity and the dignity of his nation. 28 Possibly, the
moral comity of nations may have contributed to the development of
immunity. This is expressed by ‘do unto others as you would have them do
to you’. 29 In this regard, each state upholds the concept of immunity in the
hope that its own head of state will be protected when on foreign soil.
State officials are granted immunity in order to allow them to perform
their duties effectively under customary international law and benefit from
absolute criminal immunity before courts of a foreign state. 30 It is a
common practice for states and national laws to allow immunity to their
own state officials or to officials from foreign countries. 31 Van Schaack and
Syle observe that state officials ‘under both international and national law
may claim immunity from accountability for acts they may commit while
in office’ and that ‘such officials have enjoyed such immunity for centuries,
due in large to the conflation of the head of state with the state itself’. 32
However, this rule seems too absolute: it would mean allowing state
officials to commit crimes and getting away scot-free.
The rule on the immunity of state officials has undergone changes in
recent times. What seemed to be impossible in the past – that a state official
could not be prosecuted before national courts even for international
crimes – has now become possible under contemporary international law.
Nowadays, state officials are open to prosecution and punishment for their
crimes – especially international crimes – before international and even
national courts. In fact, international criminal law statutes require that all
27
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, 123.
28
The Schooner Exchange v McFadden (1812) 11 US 137-138; Mighell v The Sultan of Johore
[1894] 1 QB 149.
29 D Aversano ‘Can the Pope be a defendant in American courts? The grant of head of
state immunity and the judiciary’s role to answer this question’ (2006) 18 Pace
International Law Review 495, 506.
30 Stewart (n 13 above) 229.
31
R v Bow Street Stipendiary Magistrate and Others, ex parte Pinochet Ugarte [1998] 4 All ER
897; [1998] 3 WLR 1456 (HL). In contrast, see United States v Noriega 808 F Supp 791
(SD Fla 1992) – where Noriega – was not accorded immunity simply because the
executive did not consider him entitled to such protection.
32 Van Shaack and Slye (n 11 above) 865-866.