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

Immunity of state officials and prosecution of international crimes 43
Functional Immunity or ratione materiae attaches to the official acts or
functions of senior state officials. This type of immunity may be invoked
not only by serving state officials but also by former state officials in respect
of their official acts while they were in office. Such immunity cannot exist
when a person is charged with international crimes either because such
acts can never be ‘official’ or because they violate norms of jus cogens, 56 and
such peremptory norms must prevail over immunity. 57 In this connection,
if indeed state officials should ever be shielded from arrest and prosecution
by the doctrine of immunity, ‘immunity would allow states to choose
whether or not their agents would be responsible under international
law’. 58
An incumbent or former state official may be subject to criminal
proceedings before properly constituted international criminal courts. 59
Contemporary international law no longer accepts a state official
committing crimes which go unpunished. As Dugard argues, ‘some
human rights norms enjoy such a high status that their violations, even by
state officials, constitute an international crime. The doctrine of immunity
cannot stand aloof from these developments.’ 60 Nowadays, ‘it is well
established that the official position of individuals does not exempt them
from individual responsibility for acts that are crimes under international
law, and thus does not constitute a substantive defence’. 61 The preceding
remains the position in respect of international crimes within the
jurisdiction of international courts.
The following section presents the controversy related to the immunity
of state officials under international law, and demonstrates how
international courts have approached their immunity from prosecution
and subpoenas in relation to international crimes.
4 International courts and the controversy on
immunity of state officials
This section demonstrates how international courts have developed the
jurisprudence on the immunity of state officials from prosecution and
punishment for international crimes, reflecting their uncertainty regarding
the concept in relation to the prosecution of international crimes. The key
question here is whether state officials are immune from the issuance of
subpoenas by international courts to appear and testify or to produce
56 On jus cogens, see NHB Jorgensen The responsibility of states for international crimes (2000)
57
58
59
60
61
85-92.
Bhoke (n 55 above).
Broomhall (n 4 above) 128.
Arrest Warrant case (n 24 above) para 61.
Dugard (n 1 above) 249-250.
Akande (n 22 above) 415.