Immunity and International Criminal Law by Simbeye Yitiha;

Author:Simbeye, Yitiha;
Language: eng
Format: epub
Publisher: Taylor & Francis Group

Chapter 4

Immunities

The ICC as a mechanism under international criminal law for holding individuals personally responsible for international crimes, has been made possible by the introduction of rights and duties of the individual at the international level. The ICC, like other international criminal tribunals, does not acknowledge immunity for heads of state or those in government.1 A person’s immunity will not act as a bar to its jurisdiction. However, to get suspects, the ICC will have to issue surrender requests,2 and a state party receiving such a request is obliged to take steps to apprehend the person in question.3 The person apprehended must appear before a competent judicial authority in that custodian state in order to establish that the apprehension was properly executed and was in compliance with local laws.4

Paust, writing in 2000, claims that international law does not permit immunity of a person accused of a international customary crime.5 He refers to the ICTR case of Prosecutor v. Kambanda where a former Prime Minister of Rwanda was charged with genocide.6 It is quite correct to say that, before the ICTR, Kambanda was unable to rely on his status as a government official to avoid prosecution. Indeed the tribunal did not spend much of its time looking at the issue of the accused’s status barring its jurisdiction.

International tribunals may not permit immunity for international customary crimes, but domestic courts do. As mentioned in the previous chapter, domestic jurisdictions are bound by the doctrine of jurisdiction. In holding an individual accountable for international crimes, a state will have to determine if it has jurisdiction. If the individual in question is a person of certain status, such as a diplomat, the state in question may be barred from detaining the accused. As part of its sovereign power, a state has jurisdiction over all persons and things within its territorial limits for both civil and criminal cases.7 As a sovereign and independent entity, it has the power to lay down rules (prescriptive jurisdiction) and the power to enforce such rules (enforcement jurisdiction) through its courts (adjudicative jurisdiction).8 Yet, within its territory a state has to concede jurisdiction to certain individuals who have immunity in accordance with customary law that has developed through time.9

Historical Development

Sovereignty and the Dominion of Kings

Sovereignty became a relevant principle when autonomous secular states started to emerge after 1324, when the idea that kings were sovereign within their territories evolved. Nevertheless, God’s law was still the standard within which governments could operate legitimately, as God was above the king. The king was, however, the highest authority in the kingdom. This was the accepted wisdom at the time the term sovereignty was coined in 1576.10 The principal point of sovereign majesty and absolute power consisted of the giving of laws to subjects without consent on their part.11 Just how the sovereign got such power is open to debate. It has been suggested that it comes from the people: that they consented to the sovereign having such powers.12 How a sovereign attains power is a topic beyond the scope of this book.

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