Immunity of Senior State Officials - Essay Example

Immunity of Senior Officials Copyright The ic ment of the act of doctrine had taken root in England as early as 1674 and it was inappropriate for courts of a sovereign state to sit in judgement on acts of other states. Sovereign monarchs in Europe had absolute power and they could do no wrong. Thus, monarchs in Europe were immune from action in domestic courts and reciprocity demanded that they did not interfere in the affairs of other sovereign monarchs. State immunity, which is a creature of international law, developed out of the previously mentioned considerations and a need for interaction between sovereign states, which required reciprocity. Thus, heads of state, senior state officials and diplomats were immune from any examination of their conduct by other states. However, it was also expected that heads of states and senior state officials who could do nothing wrong would present acceptable standards of conduct at all times. Within the relatively recent past, the concept of state immunity in international law has changed because sovereign states have demonstrated that they are capable of gross violation of human rights and massive wrongdoing. The first and second World Wars present a historical testimony for what can happen when heads of state and senior state officials indulge in morally unacceptable conduct. This brief essay presents a discussion about state immunity from proceedings alleging jus cogens norms. Declaration I certify that, except where cited in the text, this work is the result of research carried out by the author of this study. _____________________________________________ Name and Signature of Author November 2008 This write - up is for requirements related to an essay on Immunity of Senior State Officials. Biographical Sketch Acknowledgements (This page intentionally left blank) Even in the nineteenth century, the principle of ‘Supremacy of State Sovereignty’ was recognised under the prevailing international law regime and despite the numerous wars the doctrine of ‘Equality of States’ was also well established. 1 International law considered a state as being inviolable and it had absolute jurisdiction over all persons and all things within its territory, with a wide-ranging right to pursue its interests. Thus, sovereigns were immune from criminal prosecution in the courts of another state because they represented the will of the state. It was not possible to charge heads of state with criminal conduct while they were in power. State actors and legal scholars considered the previously mentioned rules as being beyond controversy. In addition, all states were equal regardless of the size of their territory or strength and this meant that their heads of state and senior government officials enjoyed the same immunities. However, even in the nineteenth century, the notions of sovereign immunity and protected sovereignty were being challenged by stronger nations and colonial powers that colonised kingdoms located far from Europe. 2 Thus, it will appear that the conduct of international law was somehow dependant on the wishes of the stronger states when acting against the weak and indigenous states outside of Europe did not have any status in international law. After the British had deposed the ‘King of Delhi’ who was the last of the Mogul Emperors in India, which the British regarded as being sovereign, the Judicial Committee of the Privy Council regarded remarked that: The Government, when they deposed and confiscated the property of the late King [of Delhi], as between them and the King, did not affect to do so under any legal right. Their acts can only be judged of only by the law of nations....3 Thus, it is clear that the abstractions of international law do indeed provide for immunities for senior officials of sovereign states and this legal thinking has not originated only recently. However, the English thinking concerning the immunities of the Sovereigns evolved from the thinking that a Sovereign could do no wrong. Thus, the legal thinking behind international law considered sovereigns to present a conduct that was morally correct at all times. International law considers a serving head of state as having absolute immunity from criminal proceedings in a foreign court. Receiving states afford diplomats with the same immunity from criminal prosecution under the Vienna Diplomatic Convention. 4 Immunity issues can come into play in international tribunals or domestic courts. However, international law makes a distinction between the official and private acts of a head of state or a senior official and the question of the determination of the status of a head of state or other senior officials of a state is a matter for the domestic order of a nation. Terms of constitution of international tribunals may also render a head of state or senior officials of state susceptible to the justice of a tribunal because such tribunals were specifically constituted in order to try gross violations of morality that constitute serious crimes. 5 The International Military Tribunal at Nuremberg, the Rwanda and Yugoslavia War Tribunals and the International Criminal Court are examples of tribunals that disregard official status, by virtue of their articles of constitution. However, it must be appreciated that the previously mentioned tribunals were put together to try very serious and heinous crimes. Heads of state, senior state officials and diplomats enjoy two types of immunities. The immunity ratione personae refer to the individual and ratione materiae refer to the acts of state. 6 Thus, conduct that is directly attributable to state action is an act of state and immunity ratione personae arises from the fact that a senior state official hold office. No distinction exists between what a high official does in a private or official capacity. The state of which a person is a high official and all other states are interested in protecting the person who is an official, but such an interest in protecting a person ceases when the person ceases to hold office. A senior state official on a state visit has all immunities extended to members of Special Missions of under the provisions of Convention on Special Missions and it is not possible to arrest senior state official on a visit. 7 Immunity ratione materiae arises because acts for a state are not for personal benefit. Thus, courts have to grant immunity for ratione materiae. However, the House of Lords in the UK has made it clear that immunity ratione materiae for a person did not affect the ratione personae of the person from civil jurisdiction for acts of torture. Thus, it is clear that whereas immunities and respect extended to a head of state and senior officials of state are substantial, they are not to act in a manner degrading of human rights and the human person. Perhaps proper care in the selection of high officials is important. A head of state or senior state official should have the same respect for morality as is being afforded to such a person. A balance must exist between the need for reciprocity and a need to hold a person accountable for criminal acts. 8 Immunity for senior state officials is only possible if these officials are from a recognised state. 9 Thus, the United States of America had refused to recognise the Panamanian government of General Noriega and this was a factor in the decision to kidnap General Noriega to face criminal charges in the United States. It is clear that the decision to recognise a government is a political act, which is the basis for extending immunities to state officials. In addition, it is not possible to lift immunities extended to visiting senior officials from a state that has sent them unless a waiver by the sending state is applicable. If a change of government takes place when senior officials from another state are abroad, then they continue to be immune in the receiving states until a decision about the recognition of the new government. The strength of the personal immunity granted to senior officials in a country that they are visiting is important. Thus, when a woman police officer was shot dead in the premises of the Libyan Peoples Bureau in London in 1984, British police did not enter the premises or arrest any accredited diplomats because the Court of St. James had granted them immunity. State officials visiting another state enjoy immunities because of the political order of the state that they visit and violation of immunities makes it becomes possible for other states to retaliate. States have a common interest in observing rules related to immunities. Sovereign states can disregard established norms related to immunities if gross and open violations of established standards of conduct are established. Heads of state and senior officials of state are now unable to hide behind a shield of immunity if they are guilty of violating principles of international criminal accountability. The concept of sovereign immunity used to be absolute, but by the 1970s, a large number of states had reverted to the restrictive approach. 10 Under the restrictive approach, a foreign state is not immune from domestic law if it has submitted to the domestic law or in case of a commercial transaction that is entered into by a state within another foreign state. In case of contracts for commercial transactions made under the laws of a foreign state, immunities do not apply. Thus, it is possible for senior state officials of a sovereign state to enter into commercial arrangements within the territories of another sovereign state for which they are likely to be liable. If senior officials of a state employ persons in another state to perform duties for them, they are likely to be liable for the contract that they have entered into. In addition, if senior state officials were to cause injury to persons or to property in a foreign country they are liable. Senior state officials who own immovable property in another sovereign state are also likely to be liable for the maintenance and other services that are associated with such a property. Interests in industrial property in foreign states are also not subject to immunities. Any interests held by senior state officials in corporations whose home is within foreign states cannot be subject to immunities under international law. Thus, personal property or commercial interests of senior state officials in other states are likely to be subject to the laws or taxes of those states and consent to arbitration by senior state official under laws of a sovereign state lifts immunities. However, it is difficult to imagine a senior official of a sovereign state in a debtor’s prison of another for failing to fulfil commercial obligations. It is possible for sovereign state governments to bring legal action for recovery of assets claimed from former heads of state or senior state officials. 11 Thus, the Islamic Republic of Iran, Philippines, Republic of Haiti, Hong Kong government and the King of Prussia tried to recover assets from their former heads of states and senior civil servants who were living under exile in foreign countries. Courts considered the previously mentioned acts on their merits and some succeeded while other failed. However, a political will to support immunity for former allies may have had something to do with the extent of protection offered to former senior state officials. Even in cases involving acts of torture that were committed by state functionaries in foreign sovereign states, domestic courts are not willing to encroach on what had taken place outside of their jurisdiction because they lack the power to do anything. However, when violations of human rights become glaringly apparent and public, the political will of sovereign states can act against foreign perpetuators especially if substantial domestic interest is at stake. This is what had happened with General Noriega when he publicly acted against US interests and the interests of US citizens after usurping power from a democratically elected government. Within the relatively recent past, national courts in developed countries have presented a divided view on the relationship between jus cogens norms and state immunity. 12 Those perpetuating acts under the umbrella of state immunity are not entitled to any immunity if state immunity is not accepted. Thus, in the Ferrini vs. Federal Republic of Germany, the Italian Supreme Court refused state immunity for substantial violation of human rights. Similarly, the Greek Supreme Court found in the Prefecture of Voiotia vs. Federal Republic of Germany case that state immunity is not available for violations of jus cogens violations. The English Court of Appeal upheld the plea of immunity in Al-Adsani vs. Kuwait and the Ontario Court of Appeal upheld the immunity of the Islamic Republic of Iran in the Bouzari vs. Iran case. However, the Greek and the Italian courts were ruling on cases in which gross violation of human rights of many millions were established as a historical fact, while the English and the Ontario courts were ruling on allegations of torture against individuals. Thus, the prevailing thinking in international law will not accept state immunity or immunity of senior state officials under established and substantial violations of human rights. Although sovereign states have been willing to consider acts involving torture or genocide as being acceptable for waiving immunity of state officials, other morally disgraceful acts are being considered for denial of immunity. 13 Corruption, which has done much damage to third world countries, is an example of such acts. After all, acts of corruption can cause the whole nation and all its citizens to suffer. Thus, acts of corruption deprive many of their rights and it is unacceptable that those placed in positions of privilege and trusts perpetuate such acts. If sovereigns are incapable of doing wrong then they cannot loot and plunder their people. However, despite the international conventions against corruption, foreign courts are reluctant to impede on domestic jurisdiction. In addition, the interests of sovereign states may dictate that they may not interfere in the loot and plunder of other peoples. Thus, it is likely that as the global thinking about international law develops, the list of acts considered as being criminal under international law may expand to deny immunity to state officials. It should be clear from the previous discussion that heads of states and senior state officials get respect and immunities because they must act in the highest moral tradition. A nation or peoples who accept morally disgraceful persons as their senior state officials can only blame themselves and are responsible for their own downfall. Immoral acts are revolting to almost all persons with a conscience. However, continuity of the business of state and considerations associated with reciprocity between sovereign states require immunities. Their peers always judge acts of sovereign states but a sovereign state must protect its own interests without sacrificing too much for pure morality. Thus, the world is unlikely to act against heads of state or senior state officials unless grossly criminal behaviour permits lifting of immunities. (This page intentionally left blank) Bibliography/ References 1. Aust, Anthony. Handbook of International Law. Cambridge, 2005. 2. Bamu, Pondai. Head of State Immunity and the ICC: Can Bashir be Prosecuted? Oxford Transitional Research Working Paper Series, 2008. November 25, 2008. http://www.csls.ox.ac.uk/documents/BamuF.pdf 3. Biehler, Gernot. Procedures in International Law. Springer, 2008. 4. Bell, Lucinda Downes. The 1858 Trial of Mughal Emperor Bahadur Shah II ‘Zafar’ for ‘Crimes Against the State’. The University of Melbourne, 2004. November 25, 2008. http://dtl.unimelb.edu.au:1801/webclient/StreamGate?folder_id=0&dvs=1227460449081~407& 5. Blancht, Andrea. Immunity versus Human Rights: The Pinochet Case. The European Journal of International Law Vol. 10 no.2 © EJIL 1999, pp. 237 - 277. 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