International law, Sixth edition
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International Law MALCOLM N. SHAW
(No. 3) took the view that immunity ratione personae was ‘only narrowly available. It is
confined to serving heads of state and heads of diplomatic missions, their families and servants. It is not available to serving heads of government who are not also heads of state . . . ’, [2000] 1 AC 147 at 268; 119 ILR, p. 135. i m m u n i t i e s f r o m j u r i s d i c t i o n 739 However, in its judgment in the Congo v. Belgium case, the International Court of Justice stated that, ‘in international law it is firmly established that . . . certain holders of high-ranking office in a state, such as the head of state, head of government and minister for foreign affairs, enjoy im- munities from jurisdiction in other states, both civil and criminal’. 228 The Court took the view that serving Foreign Ministers would benefit from immunity ratione personae on the basis that such immunities were in or- der to ensure the effective performance of their functions on behalf of their states. 229 The extent of such immunities would be dependent upon the functions exercised, but they were such that ‘throughout the duration of his or her office, he or she when abroad enjoys full immunity from criminal jurisdiction and inviolability’, 230 irrespective of whether the acts in question have been performed in an official or a private capacity. 231 This absolute immunity from the jurisdiction of foreign courts would also ap- ply with regard to war crimes or crimes against humanity. 232 Immunities derived from customary international law would remain opposable to na- tional courts even where such courts exercised jurisdiction under various international conventions requiring states parties to extend their criminal jurisdiction to cover the offences in question. 233 The Court concluded by noting that after a person ceased to hold the office of Foreign Minister, the 228 ICJ Reports, 2002, pp. 3, 20; 128 ILR, p. 76. See also A. Cassese, ‘When May Senior State Officials Be Tried for International Crimes?’, 13 EJIL, 2002, p. 853. See also Djibouti v. France, ICJ Reports, 2008, paras. 181 ff. 229 ICJ Reports, 2002, pp. 3, 21–2. 230 Ibid., p. 22. 231 Ibid. 232 Ibid., p. 24. 233 Ibid., pp. 24–5. See, as to such conventions, above, chapter 12, p. 673. See also the ap- plication brought by the Government of the Republic of the Congo against France on 9 December 2002. France consented to the Court’s jurisdiction on 11 April 2003. In its Application, the Republic of the Congo seeks the annulment of the investigation and prosecution measures taken by the French judicial authorities further to a complaint for crimes against humanity and torture filed by various associations against inter alia the President of the Republic of the Congo, Mr Denis Sassou Nguesso, and the Congolese Minister of the Interior, Mr Pierre Oba, together with other individuals including Gen- eral Norbert Dabira, Inspector-General of the Congolese Armies. The Application further states that, in connection with these proceedings, an investigating judge of the Meaux tri- bunal de grande instance issued a warrant for the President of the Republic of the Congo to be examined as a witness. The Republic of the Congo declares this to be a violation of international law. See also the order of the ICJ of 17 June 2003 refusing an indication of provisional measures in this case. Rwanda introduced an application against France on 18 April 2007 concerning international arrest warrants issued by the latter’s judicial authorities against three Rwandan officials on 20 November 2006 and a request sent to the United Nations Secretary-General that President Paul Kagame of Rwanda should stand trial at the International Criminal Tribunal for Rwanda (ICTR). France has to date not given its consent to this application and there is no other jurisdictional basis. 740 i n t e r nat i o na l l aw courts of other countries may prosecute with regard to acts committed before or after the period of office and also ‘in respect of acts committed during that period of office in a private capacity’. 234 This appears to leave open the question of prosecution for acts performed in violation of in- ternational law (such as, for example, torture), unless these are deemed to fall within the category of private acts. It is also uncertain as to how far the term used by the Court, ‘holders of high-ranking office in a state’, might extend and practice is unclear. 235 Download 7.77 Mb. Do'stlaringiz bilan baham: |
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