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

Immunity of state officials and prosecution of international crimes 45
position of a person – whether a state official or not – does not bar
prosecution before international courts. The Chamber emphasised that the
official position of Charles Taylor ‘as an incumbent Head of State at the
time when […] criminal proceedings were initiated against him is not a bar
to his prosecution by this court’. As such, Charles Taylor ‘was and is
subject to criminal proceedings before the Special Court for Sierra
Leone’. 67 The case against Taylor represents an interesting scenario. It
touches on the immunity of a state official from a state not party to the
agreement establishing the SCSL. The decision of the SCSL rejecting
immunity has the effect that even if the immunity in question relates to an
official from a state not party to an instrument establishing an international
court, such immunity does not prevail. This is a great development
outlawing immunity regardless of whether a state is a party to an
instrument creating the court or not.
The Extra-ordinary Chambers in the Courts of Cambodia (ECCC) 68
and the Iraqi Supreme Criminal Tribunal 69 have held the same regarding
immunity of state officials. Hence, international criminal courts or
tribunals have jurisdiction to prosecute persons responsible for
international crimes, including state officials.
New developments in international criminal law indicate that a
serving state official of a state not a party to the Rome Statute may be
prosecuted by the ICC after the UN Security Council refers a case or
situation to the Prosecutor of the ICC. 70 The ICC decided on this matter
in the case against the President of Sudan who was charged with crimes
against humanity, war crimes and genocide. In this regard, regardless of
whether an individual is a former or serving state official, such person may
be prosecuted for international crimes by international courts vested with
criminal jurisdiction over such a person. However, the ICJ has held that
under customary international law, serving state officials enjoy immunity
67 Prosecutor v Taylor (Case SCSL-03-01-I) Decision on Immunity from Jurisdiction,
Appeals Chamber, 31 May 2004, paras 45-53.
68 Arts 2 and 29 Law on the Establishment of Extra-ordinary Chambers in the Courts of
Cambodia for the Prosecution of Crimes committed during the Period of Democratic
Kampuchea, 27 October 2004, as revised on 23 November 2004, (NS/RKM/1004/
006); Criminal Case File 002/14-08-2006, Investigation 002/19-2007-ECCC/OCIJ
(Khieu Samphan) Provisional Detention Order 19 November 2007; Criminal Case File
002/14-08-2006, Investigation 002/19-09-2007 Provisional Detention Order, ECCC-OCIJ,
19 September 2007 1-5 paras 1-6; Extra-ordinary Chambers in the Courts of Cambodia,
Criminal Case File 002/14-08-2006, Investigation 002/19-09-2007, ECCC-OCIJ, Police
Custody Decision 12 November 2007 1-2; Extra-ordinary Chambers in the Courts of
Cambodia, Criminal Case File 002/14-08-2006, Investigation 002/19-09-2007, ECCC-
OCIJ, Provisional Detention Order 14 November 2007 1-5, paras 1-11.
69
Prosecutor v Saddam Hussein Al-Majid et al, Defendants’ Preliminary Submission
Challenging the Legality of the Special Court 21 December 2005, 1-24 paras 1-121.
70 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 para 41.