Immunity of High State Representatives with Regard to International Crimes

Sammanfattning: Many changes have occurred in the area of immunity for high state officials during the last century. States and their High Representatives, such as Head of State, Head of Government and Foreign Ministers were at the beginning of the last century granted absolute immunities for all acts they conducted. Evolution has, however, produced new rules based more on their need to function properly and less on the state representative character what has entailed the restricting of immunities under certain circumstances. The discussion that takes place today involves the questions of whether high state representatives are accorded immunity for international crimes. Those, most of which amount to grave breaches of human rights and humanitarian law, are&semic slavery, piracy, genocide, war crimes, crimes against humanity, torture and aggression. They are considered so foreign to the international society of today that special measures are considered motivated. They entail the personal responsibility of the perpetrator, lie under universal jurisdiction and, it is asserted by some, remove immunity for former high state officials. The question elaborated on in the thesis is thus whether high state representatives, at least those no longer in office, are accorded immunity for international crimes. Most scholars agree that the state and the state representative should bear responsibility for the acts but how to circumvent the provisions on immunity has proved to be one of the most complicated problems of modern international law. A great part of the problem lies in the characterization of the criminal act. If the Head of State is to be tried, the act needs to be characterized as private since only private acts do not entail immunity. If the act in accordance to that is classified as private, the state cannot at the same time be held responsible at the international level, since private acts of the High State Representative are not attributable to the state, according to the rules on state responsibility. These two are separated areas but it would not be possible to characterize the same act as private in one area and as official in the other. To come around this circle of impunity some national courts, international tribunals, institutions and legal scholars have envisaged the creation of an exception to state immunity. On the international arena the issue is clear, no immunity is accorded, this irrespective of the official status of the person. The basis therefore is the statutes of the war crime tribunals. It is however asserted that international customary law provides a rule that removes immunity from commission of international crimes, even when it comes to national courts. This is held plausible in the society of today that demands respect for democratic values such as the rule of law, justice through punishment and imprisonment of the individuals responsible and compensation to the victims. It is asserted that the rule has its foundation in the Nuremberg Charter that stated the irrelevancy of the official capacity of the perpetrator, which's status as customary law was affirmed in a resolution by the UN General Assembly. The rule was later affirmed by the statutes of ICTY, ICTR, ICC and in state practice, amongst others, by the Pinochet case and the Eichmann case. Further evidence the war crime tribunals provide is the political will of the international society to remove the immunities of the perpetrators as well as the customary status of the relevant provision, what makes it applicable on the national arena as well. After trying the above asserted, I arrive at the conclusion that it is not tenable. High state representatives are still accorded immunity, even for commission of international crimes and even after the officials cease to hold office. As for the immunity ratione personae accorded to the state official while in office, it is steadily affirmed by a massive amount of state practice, in treaties and by international institutions. While in office, the person is untouchable. The above asserted rule would, however, come into operation after the person ceases to hold office. It is thus asserted that the immunity ratione materiae is removed when international crimes have been committed i.e. the immunity accorded due to the official or sovereign character of the act. The state practice of today does, however, not seem to support the asserted. The Pinochet decision, where the former Chilean leader was not accorded immunity by the United Kingdom House of Lords, was undeniably leading the evolution in that direction. This evolution was however abruptly stopped by the ICJ in the much criticized Yerodia-case that confirmed the unrestricted immunities of high state officials, even after they cease to hold office. The European Court for Human Rights held as well in three cases that state immunity still prevailed. Only immunity for the private acts is removed after cession of office. It is thus concluded that the evidence for such an asserted rule is not strong enough in face of contrary state practice and decisions by ICJ and ECHR. State high representatives are still accorded immunities, even for commission of international crimes and even after the official ceases to hold office. The solution for the future might lie in the classification of the criminal act. It has been suggested that, if the international crime was to be classified differently, there would be no hinders for states to initiate proceedings against former dictators. Today the act is classified as sovereign or official what thus entails immunity. To classify it as private, as is done by some, would entail several unwanted consequences. Suggestions have thus been made that if it was to be classified as, for example, 'an act committed for official purposes' the immunity could be removed without any absurd consequences, as would follow if the classification was private or official. Even though a theoretically valid definition was to be found in the near future, what lacks today is the political courage to indict former high state officials of foreign states in national courts. The ICJ has a chance to make the customary law move in one of the directions, in the pending case between France and Congo that involves questions of immunity for international crimes.