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

Immunity of state officials and prosecution of international crimes 39
individuals responsible for international crimes, including state officials,
be prosecuted. States are steadily beginning to prosecute their own former
state officials for international crimes. In Africa, Ethiopia is a good
example. Ethiopian authorities prosecuted and sentenced former state
official, Mengistu Haile-Mariam, for genocide and crimes against
humanity. Both his prosecution and sentence to death were in absentia,
thus lacking legitimacy under international human rights law. In other
countries, the jurisprudence on the prosecution of state officials before
national courts will take time to be compatible with international law
obligations.
2.2 Codification of immunity of state officials under
international law
There is no specific international treaty on the doctrine of immunity of
state officials. 33 However, immunity is governed by international law as
found in treaties and statutes of international courts and tribunals. The first
international efforts to hold state officials responsible for international
crimes came after the World War I. 34 This is evidenced by the signing of
the Treaty of Peace between the Allied and Associated Powers and
Germany at Versailles on 28 June 1919 (Versailles Treaty). 35 This was
followed by a Report presented to the Preliminary Peace Conference by
the Commission on Responsibility of the Authors of the War and on the
enforcement of penalties at Versailles in March 1919. 36 In Chapter III, the
Report provided for the responsibility of state officials for international
crimes, particularly former Kaiser Wilhelm II, ‘without distinction of rank,
including chiefs of state’. Despite this call, Kaiser Wilhelm II was never
prosecuted. 37
The application of international criminal law to the prosecution of
state officials was first witnessed after the World War II. State officials
from Germany were prosecuted and punished by the Nuremberg
33 Stern (n 19 above) 83.
34 MC Bassiouni ‘The time has come for an international criminal court’ (1991) 1 Indiana
International and Comparative Law Review 1, 2-4.
35 Art 227 of the Versailles Treaty called for the trial of the former head of state of
Germany, Wilhelm II.
36 Conference of Paris 1919; reprinted in (1920) 14 American Journal of International Law 95
(Supp) quoted in MC Bassiouni Crimes against humanity in international law (1992) 553,
37
555.
See EJ Guilherme de Aragao ‘Setting standards for domestic prosecutions of gross
violations of human rights through the ICC: International jurisdiction for wilful killings
in Brazil?’ in European Inter-University Centre for Human Rights and
Democratisation, The International Criminal Court: Challenges and prospects, Proceedings
of an International Conference organized by the European Inter-University Centre for
Human Rights and Democratisation (EIUC) (2005) 13-38 15; JF Willis Prologue to
Nuremberg – The politics and diplomacy of punishing war criminals of the First World War
(1982) 98.