Head of State Immunity and International Crimes

Sammanfattning: The aim of this thesis is to explore the status of the immunity afforded to heads of state for serious international crimes. The central question asked is whether heads of state at the present time can commit international crimes and still be granted impunity. The concept of head of state immunity developed from immunity afforded to states and is based on the principles of state-sovereignty and equality between states. Until the middle of last century such immunity was absolute. Thereafter, the rationale for the immunity shifted to a theory of functional necessity and was instead determined in accordance with diplomatic immunity. Diplomats are entitled to immunity for acts while in office, but can be held responsible in certain circumstances after leaving office. This distinction between immunities afforded to serving or former state officials have resulted in two types of immunity; personal immunity and functional immunity. The former is title-based and attached to the official position. The latter is conduct-based and attached to the act performed and therefore becomes relevant only after the state official leaves office. The extent of these immunities with regards to heads of state is determined by customary international law. Customary international law provides that serving heads of state enjoy personal immunity before national courts of other states for all acts. The concept of functional immunity afforded to former heads of state is more complex. It is clear that functional immunity does not provide protection for private acts, but serious international crimes are not private acts. Despite international practice indicating the contrary, it is held in this thesis that the functional immunity of former heads of state is intact, unless removed in case of an exception to the customary rule providing immunity. Such an exception might be that the home state of the head of state waives the immunity or that it enters into an international agreement which removes the immunity between the contracting states. The conclusion is that foreign domestic courts provide limited possibilities to fight impunity. International ad hoc tribunals and hybrid courts are more effective for the prosecution of heads of state for serious international crimes. In case the tribunal or court is established by the Security Council acting under Chapter VII of the UN Charter, the immunity afforded to both serving and former heads of state is removed. In case the court or tribunal is established by an agreement, without the powers of the UN Security Council, the functional immunity of a former head of state can still be removed when the statute of the court contain a clause establishing the irrelevance of official capacity. In this thesis it is held that the personal immunity provides protection for serving heads of state despite such a clause, although there is case law suggesting the contrary. Because of this, and since the jurisdiction of ad hoc tribunals and hybrid courts are often limited to specific regions and to specific periods of time, they are not available as a universal solution to end impunity. The ICC is based on a treaty, the Rome Statute, removing the immunity of both serving and former heads of state of the state parties. Also, the Security Council can refer situations to the ICC while acting under Chapter VII of the UN Charter. Under such a referral, the ICC has universal jurisdiction and the immunity of both serving and former heads of state of non-party states is also removed. Under the principle of complementarity, a case is only admissible to the ICC if a state is unwilling or unable to genuinely investigate or prosecute the responsible head of state. Also, a Security Council referral is only possible in case all of the five permanent members abstain from their veto powers. This limits the power and effectiveness of the ICC in the fight against impunity. The conclusion of this thesis is that present heads of state in many circumstances still can commit serious international crimes and invoke immunity. But important steps against impunity have been taken in recent years, signaling that there might be an end to impunity in the future.