RESEARCH FINDINGS FROM MY PREVIOUS PAPER ON IMMUNITY: My good Prof John Dugard (South African) observes that the question of official immunity is relatively clear under the International Criminal Law (ICL) ‘however less obvious’ under international law. INTERNATIONAL LAW POSITION: The International Court of Justice (ICJ) has pronounced on the issue of official immunity under international law in the Arrest Warrant case. In this case, heads of state enjoy absolute immunity. Summers argue that in fact, the case extended the scope of customary international law by providing that a ‘mere risk’ of arrest is also prohibited. In Djibouti v France, the ICJ held that immunity for heads of states encompassed the right not to be arrested. A different jurisprudence (even though not from an international tribunal but a local one) however emerged in the Pinochet case where the House of Lords refused to grant immunity for breach of a jus cogens norm - torture. INTERNATIONAL CRIMINAL LAW POSITION: Dugard contends that official immunity is in a ‘state of flux… (and) courts will therefore be required to approach immunity in such cases with caution, and with due regard for the emergence of restrictive rules in favour of human rights’. Article 27 of the Rome Statute was not contested during the Rome Statute negotiations. The Special Court for Sierra Leone (SCSL) observed that the international rules of personal immunities for heads of state are irrelevant under international criminal courts.
Posted on: Tue, 10 Sep 2013 15:29:08 +0000
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