See, e.g., In re Estate of Ferdinand Marcos, 25 F 3d 1467, at 1469–1472 (9th Cir. O’Keefe, supra note 124, argues that as a matter of logic there cannot be a category of universal jurisdiction in absentia. Former Syrian Ambassador to the German Democratic Republic case, Case No. See Arts 49, 50, 129, and 146, Geneva Conventions 1949, supra note 94; Art. 170. In his judgment, Lord Hoffmann stated that for the claimants to succeed with this argument it was ‘necessary to show that the prohibition on torture has generated an ancillary procedural rule which, by way of exception to State immunity, entitles or perhaps requires States to assume civil jurisdiction over other States in cases in which torture is alleged’. See also the correspondence in the MacLeod case, supra note 51. In other words, State officials cannot suffer the consequences of wrongful acts which are not attributable to them personally but to the State on whose behalf they act: they enjoy so-called ‘functional immunity’. The German Supreme Court noted both a judgment of the Special Supreme Court of Greece on a similar issue in which it was held ‘that according to the current state of international law there still exists a generally recognized international norm, which prohibits that a State be sued in another State for damages in relation to crimes which were committed on the territory of the forum state with the participation of troops of the defendant State in times of war as well as in times of peace’ (Margellos v. Federal Republic of Germany (Greece: Anotato Eidiko Dikasterio, 2002)) and the decision of the ECtHR in App. 27 Rome Statute of the International Criminal Court (1998), 2187 UNTS 3, constitutes a treaty waiver of immunity ratione personae. In describing the rule according immunity ratione personae in the Arrest Warrant case, the ICJ stated it applies to ‘diplomatic and consular agents [and] certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs’.23 The use of the words ‘such as’ suggests that the list of senior officials entitled to this immunity is not closed. By practically co-extensive we mean that both rules apply in large measure to the same set of circumstances. 3), supra note 16, at 109 (per Lord Browne-Wilkinson), 177 (per Lord Millett). 34). The choice of Electoral System is one of the most important institutional decisions for any democracy. There are recent developments suggesting movement in international law on both of these issues, but the precise contours of the relevant rules are yet to be conclusively determined. 7, Convention Against Torture 1984, supra note 76. See Art. See the works cited supra in note 114. 1, Convention Against Torture, supra note 76. It is this consent which gives rise to the immunity.36. Ibid., at 1174. See the Ghaddafi case, Arrêt no. It is amazing that these judges could have reached this conclusion in respect of torture, which under Art. 194). 2 BvR 1516/96 (1997), 115 ILR 595, at 609–610, 613–614 (Germany: Federal Constitutional Ct). These remain opposable before the courts of a foreign State, even where those courts exercise such a jurisdiction under these conventions.120. 11/2000 (Greece: Court of Cassation); Lozano 91 Rivista di diritto internazionale (2008) 1223 (Italy: Cassazione); FRG v. Mantelli and others, Order No. See generally Fox, supra note 1, at ch. However, these methods of enforcement of human rights and international criminal law often fail. The official or governmental nature of the act, which forms the basis of the immunity, is an essential ingredient of the offence. See, generally, Whomersley, ‘Some Reflections on the Immunity of Individuals for Official Acts’, 41 ICLQ (1992) 848; Tomonori, ‘The Individual as Beneficiary of State Immunity: Problems of the Attribution of Ultra Vires Conduct’, 29 Denver J Int’l L and Policy (2001) 261; H. Fox, The Law of State Immunity (2nd edn, 2008), at 455–464 and Ch. In so doing, we re-examine the relationship between jurisdictional rules and rules of immunity and suggest that rules conferring extra-territorial jurisdiction may of themselves displace prior immunity rules. Rather international law recognizes only universal jurisdiction exercised where the alleged offender does not possess immunity ratione personae.156 It is also arguable that the suspect must be present on the territory of the prosecuting state for a legitimate exercise of universal jurisdiction.157 Yet, as demonstrated above, the principle of universal jurisdiction over certain international crimes is inconsistent with immunity ratione materiae; it follows that that type of immunity does not exist in relation to those crimes. A similar conclusion was reached by the British Branch of the Human Rights Section of the International Law Association, ‘Report on Civil Actions in the English Courts for Serious Human Rights Violations Abroad’ [2001] European Human Rts L Rev 129. They cannot be the subject of sanctions or penalties for conduct that is not private but undertaken on behalf of the State. While the prohibitions of aggression,84 genocide,85 and torture86 would seem clearly to fall into that category, it is doubtful that other rules of international humanitarian law are norms of jus cogens. See also the views of the Prosecutor dismissing a complaint seeking the prosecution in France of former US Defence Secretary, Donald Rumsfeld, for torture, discussed in Gallagher, ‘Universal Jurisdiction in Practice: Efforts to Hold Donald Rumsfeld and Other High Level United States Officials Accountable for Torture’, 7 J Int’l Criminal Justice (2009) 1087, at 1110–1111. ), International Law (3rd edn, 2010), at 380. The principle has been challenged in several recent cases before the ICJ,151 as well as in diplomatic exchanges and national proceedings.152 For instance, the US Executive branch expressed serious concern over the exercise by Belgian courts of universal jurisdiction over US officials under Belgium's notorious universal jurisdiction statute.153 This challenge resulted in the amendment of the Belgian statute and the restriction of Belgian jurisdiction to international crimes committed by or against Belgian nationals or residents.154. The term was first used in 1915, in relation to the mass killings of Armenians by Turkish forces; the British, French, and Russian governments issued a declaration calling these acts ‘crimes … against humanity and civilisation’ and stating that ‘they [would] hold personally responsible [for] these crimes all members of the Ottoman Government and those of their agents who are implicated in such massacres’.140 Similarly, the first extraterritorial prosecution for crimes against humanity141 – the Israeli prosecution of Adolf Eichmann – was for crimes against humanity committed during World War II by a government official. 146, Fourth Geneva Convention, (1949), 75 UNTS 287; Art. The same may be said of others entitled to immunity ratione personae. See the International Law Commission's Commentary to Art. USA, California, My paper was plagiarism free despite placing an urgent assignment with you. See generally F. Kalshoven, Belligerent Reprisals (1971). The Ghaddafi Case before the French Cour de Cassation’, 12 EJIL (2001) 595; Fox, ‘The Resolution of the Institute of International Law on the Immunities of Heads of State and Government’, 51 ICLQ (2002) 119. A similar argument was made and accepted in Ferrini v. Federal Republic of Germany (2004), Cass sex un 5044/04; 87 Rivista di diritto internazionale (2004) 539 (Italy: Cassazione); Prefecture of Voiotia v. Federal Republic of Germany (2000), Case No. This will clearly be the case where a subsequent jurisdictional rule is practically co-extensive with a prior rule according immunity. See however Yearbook of the International Law Commission, Volume II (1967), 358 (‘It is now generally recognized that States are under an obligation to accord the facilities, privileges and immunities in question to special missions and their members.’). IT-95-17/1-T (1998), 121 ILR 213, at 260 (ICTY: Trial Chamber), para. 61. The third circumstance in this list deals with immunity ratione materiae and makes clear that state officials possess immunity in relation to official acts committed whilst in office. In this latter circumstance, the jurisdictional rule will apply to scenarios covered by the immunity rule (i.e., prosecution of state officials) and cases outside that rule (e.g., prosecution of non-state actors). Clarifying the Basic Concept’, 2 JICJ (2004) 735, who argues that universal jurisdiction is a particular form of the jurisdiction to prescribe where there is no link between the prescribing state and the offender at the time of the commission of the offence. In Attorney General of Israel v. Eichmann, 36 ILR (1962) 5, at 308–309, the Israeli Supreme Court stated that ‘[t]he theory of “Act of State” means that the act performed by a person as an organ of the State – whether he was Head of the State or a responsible official acting on the Government's order – must be regarded as an act of the State alone. We take care of all your paper needs and give a 24/7 customer care support system. This would be contrary to extensive post-World War II practice. See also Watts, supra note 1, at 102–103: ‘heads of government and foreign ministers, although senior and important figures, do not symbolize or personify their States in the way that Heads of State do. The position was well summarized by Lord Phillips in Pinochet (No. It does not go to substantive law; it does not contradict a prohibition contained in a jus cogens norm but merely diverts any breach of it to a different method of settlement. See note on Isaiah 22:22.. And his name shall be called - גבור אל El gibbor, the prevailing or conquering God. This is clearly not the current situation. On a textual analysis of this provision, international law is only a restriction to two of the five functions listed. 1994). Thus, a court cannot determine the question of individual criminal responsibility for this crime without considering as a preliminary matter the question of aggression by a State. The challenges have been made in cases in which the alleged offender is not present in the territory of the forum and the state in question is seeking to exercise universal jurisdiction in absentia.155 In addition, the exercise of universal jurisdiction has been challenged in cases where the alleged offender possesses immunity ratione personae. See Fassbender, ‘Case Comment’, 92 AJIL (1998) 74. No matter what kind of academic paper you need, it is simple and affordable to place your order with My Essay Gram. The issue is, in part at least, a question of the appropriate forum’ (emphasis in original): Brownlie, ‘Preliminary Report on the Contemporary Problems Concerning the Jurisdictional Immunity of States’, 62-I Annuaire de L’Institut de Droit international (Cairo, 1987) 13, at 18. See Lord Wilberforce in I Congresso del Partido [1981] 2 All ER 1064, at 1074 (HL): ‘in considering, under the restrictive theory, whether State immunity should be granted or not, the court must consider the whole context in which the claim against the State is made, with a view to deciding whether the relevant act(s) on which the claim is based should, in that context, be considered as fairly within an area of activity, trading or commercial or otherwise of a private law character, in which the State has chosen to engage or whether the relevant activity should be considered as having been done outside the area and within the sphere of governmental or sovereign activity’. This assertion would be especially problematic in criminal cases, where there is a presumption of innocence. The official would be immune not only with respect to sovereign acts for which the state is immune but also in proceedings relating to official but non-sovereign acts.54. 23(4), Spanish Judicial Power Organization Act, 6/1985, providing for jurisdiction over certain international crimes committed by Spanish or foreign nationals outside Spanish territory; (ix) US Genocide Accountability Act 2007, supra note 145, amending s. 1091 of title 18 of the US Code and providing for jurisdiction when ‘the alleged offender is brought into, or found in, the United States, even if the conduct occurred outside the United States’. See dicta by the ICTY in Prosecutor v. Furundžija, supra note 86. See USA v. Sissoko, 121 ILR 599 (SD Fla, 1997); Wickremasinghe supra note 1, at 391. Once your paper is ready, we will email it to you. and . See Cassese, supra note 77, at 870 ff; Cassese, supra note 15, at 305 ff; Gaeta, supra note 15, at 981–983; Zappalà, supra note 15, at 601–605; Wirth, supra note 77. While both the British and US governments accepted that there was immunity under international law from both civil and criminal processes, Macleod was actually subject to trial owing to the inability of the US federal government to interfere with the prosecution. Therefore when the Geneva Conventions132 and customary international law133 conferred universal jurisdiction in respect of those crimes, it cannot be supposed that immunity ratione materiae was left intact as that would have rendered the conferment of such jurisdiction practically meaningless. 85(1), First Additional Protocol to the 1949 Geneva Conventions (1977), supra note 89. Likewise, the Belgian Government in the Arrest Warrant case accepted in its pleadings to the ICJ that the arrest warrant in question would not be enforceable, on immunity grounds, in cases where a representative of a foreign state was in Belgium on the basis of an official invitation.35, Questions remain as to the precise contours of the special mission immunity. With Solution Essays, you can get high-quality essays at a lower price. 1992). 61. Ct.) Marshall CJ, holding that whenever a Sovereign, a representative of a foreign State or a foreign army is present within the territory by consent, it is to be implied that the local sovereign confers immunity from local jurisdiction. I). To this end, international law imposes obligations on states to prosecute those who have committed international crimes within their territory. Indeed, the very purpose of international criminal law is to attribute responsibility to individuals, including state officials, and to defeat the defence of official capacity or act of state. Despite the considerable extension of the prohibition of belligerent reprisals in the First Additional Protocol to the Geneva Conventions,88 the prohibitions in that instrument cannot be regarded as representing customary international law89 – let alone jus cogens – given the opposition of countries such as the US, UK, and France to those provisions.90. Arguably, the primary reason for permitting universal jurisdiction is that persons who commit such international crimes are often connected to the state concerned and might escape justice if only their home state had jurisdiction. We then go on to suggest a more persuasive rationale for the argument that immunity ratione materiae does not apply in cases concerning prosecutions for international crimes. It is argued that whilst international crimes can be official acts, immunity ratione materiae is removed as soon as a rule permitting the exercise of extra-territorial jurisdiction over that crime and contemplating prosecution of state officials develops. 59; see also the Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal, ibid., at para. Our support agents are available 24 hours a day 7 days a week and committed to providing you with the best customer experience. Note that the most notorious piece of legislation asserting universal jurisdiction – Art. In Application for Arrest Warrant Against General Shaul Mofaz (Decision of District Judge Pratt, Bow Street Magistrates’ Court, Feb. 2004), it was stated that ‘[t]he function of various Ministers will vary enormously depending upon their sphere of responsibility. Once extra-territorial jurisdiction is established, it makes no sense to exclude from it acts done in an official capacity.147, It follows that an important challenge is one of establishing the circumstances in which universal, or at least extra-territorial, jurisdiction is permitted under international law in relation to national prosecutions for international crimes. 5 of commentary to Art. ), The Pinochet Case: A Legal and Constitutional Analysis (2000), 93, at 101; Pinochet (No. However, other courts have not been convinced. 1997 (unpublished) (Switzerland: Military Tribunal at Lausanne); Niyonteze, 26 May 2000 (unpublished) (Switzerland: Military Tribunal at Lausanne) (for a case report see Reydams, ‘Case Report: Niyontese v Public Prosecutor’, 96 AJIL (2002) 232). In our view, these arguments misunderstand the basis on which immunity is accorded or are premised on a false conflict of norms. See Jones v. Saudi Arabia, supra note 52, at paras 74–78 (per Lord Hoffmann). The exercise of extra-territorial jurisdiction overrides the principle that one State will not intervene in the internal affairs of another. As regards war crimes committed in non-international armed conflicts,134 clearly one party to the conflict will be a non-state entity, and it is therefore the case that liability for these crimes is not restricted to state officials. Furthermore, Article 31 of that Convention provides that ‘the representatives of the sending State in special mission and the members of its diplomatic staff are immune from the criminal jurisdiction of the receiving State’.27 These are treaty based conferrals of immunity ratione personae which extend the category beyond the Head of State, Head of Government, and Foreign Minister. S. 3 of this bill states that ‘[i]t is the policy of the United States to reject any claim of universal jurisdiction made by foreign governments and to refuse to render any assistance or support to any foreign government pursuing an investigation or prosecution under a universal jurisdiction act’. In short, … when a state violates jus cogens, the cloak of immunity provided by international law falls away, leaving the state amenable to suit.82, First, it should be noted that although it has been stated that ‘most norms of international humanitarian law, in particular those prohibiting war crimes, crimes against humanity and genocide, are also peremptory norms of international law or jus cogens’,83 it is by no means established that all rules prohibiting international crimes are prohibitions that rise to the level of jus cogens. IV, Section 11, Convention on the Privileges and Immunities of the United Nations 1946, 1 UNTS 15 and 90 UNTS 327 (corrigendum to vol. It would therefore appear that the state to which a former diplomat was accredited is bound to respect his or her immunity ratione materiae, even if the diplomat is charged with having committed an international crime. However, the treaty rule according diplomatic immunity ratione materiae does not apply with respect to third states.164 With respect to those states the position of the former diplomat is the same as that of other officials: he or she is entitled to the general immunity ratione materiae of state officials which derives from state immunity.165 Therefore, when in a third state, a former diplomat is not entitled to immunity ratione materiae with respect to prosecutions for international crimes. On the one hand, it stated (at para. However, this is to read too much into jus cogens prohibitions. Other hurdles are those to be found in the domestic law of the state, including jurisdictional limits under domestic criminal law or under the conflict of law rules of the forum (doctrines such as forum non conveniens). This application was also denied: see Black and Cobain, ‘Barak faces war crimes arrest threat during UK visit’, The Guardian, 29 Sept. 2009. Get high-quality papers at affordable prices. See Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium) [2002] ICJ Rep 3, Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal, ibid., at para. They must be read together to give a convincing account of why the rule of immunity still exists. Whilst some have argued that the immunity ratione materiae of the diplomat is simply a reflection of the general immunity ratione materiae available to other state officials,158 this view has been rejected by other authors159 and by the German Constitutional Court.160 This question is important for at least two reasons. 26). Each state party has agreed that the other state parties can exercise jurisdiction over alleged official torturers found within their territories, by extraditing them or referring them to their own appropriate authorities for prosecution; and thus to my mind can hardly simultaneously claim an immunity from extradition or prosecution that is necessarily based on the official nature of the alleged torture.

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