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

42 Chapter 2
avoid contradiction on the question of immunity attaching to state officials
who commit international crimes.
The preceding section demonstrated the origin of immunity of state
officials and its relationship with the state. Next, we address the scope of
the immunity of state officials.
3 Scope of immunity of state officials
There are two aspects to state officials’ immunity considered in
international law: functional immunity and personal immunity.
Functional immunity is commonly referred to as ‘immunity ratione
materiae’ while personal immunity is called ‘immunity ratione personae’.
The question of immunity ratione personae arises particularly and most
strongly with regard to international courts or tribunals, and even domestic
courts. Serving state officials may be rendered susceptible to the
jurisdiction of international tribunals depending on the terms of the
statutes of such tribunals. 51 Shaw observes that in domestic courts, the
situation is more complex because of the ‘status of head of state before
domestic courts’ and that ‘international law has traditionally made a
distinction between official and private acts of a head of state’. 52 Thus,
immunity only exists for official acts done while a person is in office.
Personal immunity or ratione personae attaches to senior state officials
while they are still in office. State as well as judicial practice indicate that
this form of immunity applies even to international crimes, as held by
domestic courts in cases involving Muammar Qaddafi 53 and Robert
Mugabe. 54 As observed by Dapo Akande, ‘[j]udicial opinion and state
practice on this point are unanimous and no case can be found in which it
was held that a state official possessing immunity ratione personae is subject
to the criminal jurisdiction of a foreign state where it is alleged that he or
she has committed an international crime’. 55
51 Shaw (n 1 above) 655-656.
52
As above.
53 French Cour de Cassation 13 March 2001 Judgment 1414 (2001) 105 Revue Generale de
Droit International Public 437.
54
See Tachiona v Mugabe 169 F Supp 2d 259, 309 (SDNY 2001); see generally the
opposition submission in the ‘Brief for the United States, in Tachiona, on her own
behalf and on behalf of her late Husband Tapfuma Chiminya Tachiona et al’ Petitioners v
United States of America On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Second Circuit In the Supreme Court of the United States 05-879, April
2006. In n 9: ‘The assertion of head-of-state immunity on behalf of Foreign Minister
Mudenge is consistent with international practice [citing also Case Concerning the Arrest
Warrant of 11 April 2000], paras 20-21, 22’.
55 Akande (n 22 above) 407; Dugard (n 1 above) 252; C Bhoke ‘The trial of Charles
Taylor: Conflict prevention, international law and an impunity-free Africa’ Institute for
Security Studies Occasional Paper 27 (2006) 8-10.