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

44 Chapter 2
evidence. In other words, does immunity from prosecution extend to
subpoenas issued against state officials?
4.1 Immunity of state officials is not a defence: A settled
position
Should the immunity of state officials prevail over the duty to prosecute
and punish individuals responsible for international crimes? Genocide,
war crimes and crimes against humanity are committed not by the state but
by individuals, including state officials. State officials do not necessarily
personally or directly commit crimes – they do so by participating as coperpetrators
or tolerating, inciting, aiding or condoning the commission of
international crimes. All states are obliged to prosecute and punish
perpetrators of international crimes as this obligation has attained the
status of customary international law and is a jus cogens norm which must
not be subservient to the lower norm of immunity. When the prosecution
and punishment of individuals responsible for international crimes are
weighed against the immunity of state officials, the duty to prosecute and
punish international crimes must prevail over immunity. This is so because
humanity requires that individuals who commit egregious crimes must be
held responsible for their acts.
Generally, international courts have held that state officials do not
benefit from immunity accorded to them by national or international law,
especially where such officials have been charged with international
crimes. The International Court of Justice (ICJ), 62 the International
Criminal Court (ICC), 63 the International Criminal Tribunal for the
former Yugoslavia (ICTY), 64 and the International Criminal Tribunal for
Rwanda (ICTR) 65 have held that the official position of individuals is not
a defence for prosecution nor is it a mitigating factor in the punishment of
such persons. The position has remained so since the Nuremberg and
Tokyo trials. 66 The Appeals Chamber of the Special Court for Sierra
Leone (SCSL) held in the case against Charles Taylor that the official
62 Arrest Warrant case (n 24 above) para 61.
63 Prosecutor v Al Bashir Decision on the Prosecution’s Application for a Warrant of Arrest
against Omar Hassan Al Bashir (Case ICC-02/05-01/09) Public Reducted Version,
Pre-Trial Chamber I, 4 March 2009 15, paras 41-43.
64 Prosecutor v Milošević Decision on Preliminary Motions, Trial Chamber, Decision of 8
November 2001, paras 26-34; Prosecutor v Kunarać, Kovać and Vuković (Cases IT-96-23
–T and IT-96-23/1-T) Trial Chamber, Judgment 22 February 2001, para 494; Prosecutor
v Karadžić (Case IT-95-5/18-PT) Decision on the Accused’s Holbrooke Agreement
Motion, 8 July 2009, Trial Chamber, para 5; Prosecutor v Karadžić Case (IT-95-5/18-PT)
Appeal of the Decision Concerning Holbrooke Agreement Disclosure, 28 January
2009, Appeals Chamber, paras 8-12; Decision on Appellant Radovan Karadžić’s
Appeal Concerning Holbrooke Agreement Disclosure, Appeals Chamber, 6 April 2009,
para 17.
65 Prosecutor v Kambanda (Case ICTR 97-23-S) Judgment and Sentence, 4 September 1998.
66 Nuremberg Judgment International Military Tribunal, 1946, reprinted in (1947) 41
American Journal of International Law 172, 221.