Functional Immunity

This type of immunity arises fromcustomary planetary lawand treaty lawand confers immunities on those performing acts of state (usually a foreign semiofficial). whatsoever person who in performing an act of state commits a immoral offence is immune from prosecution. This is so even after(prenominal) the person ceases to perform acts of state. Thus it is a type of immunity limited in the acts to which it attaches (acts of state) exactly will only end if the state itself ceases to exist.This type of immunity is establish on respect for sovereign equality and state dignity. The offices usually value as attracting this immunity are mental capacity of State or point in time of Government, of age(p) cabinet members, Foreign Minister, and Minister for Defence see the chink Warrant Case,Pinochet Case(R v Bow Street Magistrates ex rolee Pinochet Ugarte (No 3)2000 1 AC 147, House of Lords).Such officers are immune from prosecution for everything they do during their clock in offic e. For example, an English court held that a warrant could not be issued for the arrest ofRobert Mugabeon charges of internationalistic crimes on the basis that he was a presently serving Head of State at the time the minutes were broughtMugabe, reported at (2004) 53 ICLQ 789. Other examples are the attempts to prosecuteFidel Castroin Spain andJiang Zeminin the USA.However, the moment accused leaves office, they are liable to be prosecuted for crimes affiliated before or after their term in office, or for crimes attached whilst in office in a personal capacity (subject to territorial requirements and local law). Pinochetwas only able to come to trial because Chile and the UK had twain signed and ratified the UN Convention Against Torture through which such immunities were waived. It whitethorn be the case that personal immunity is itself being eroded.In 2004 the Appeals Chamber of the limited Court for Sierra Leoneheld that indicted Liberian presidentCharles Taylorcould not inv oke his Head of State immunity to resist the charges against him, even though he was an incumbent Head of State at the time of his indictment. However, this reasoning was based on the construction of the courts constituent statute, that dealt with the matter of indicting state officials. In any case, Taylor had ceased to be an incumbent Head of State by the time of the courts decision so the arresting authorities would confirm een free to issue a new-fangled warrant had the initial warrant been overturned. Nevertheless, this decision may signal a changing direction in international law on this issue. new-fangled developments in international law suggest that this type of immunity, whilst it may be available as a defence to prosecution for local or domestic crimes or civil liability, is not a defence to an international crime. (International crimes includecrimes against mankindity,war crimes, andgenocide).This has developed in the jurisprudence of the International outlaw Tribun al for the Former Yugoslavia, particularly in theKaradzic,Milosevic, andFurundzijacases (though care should be taken when considering ICTY jurisprudence due to itsAd-hocnature). This was also the agreed position as mingled with the parties in their pleadings in theInternational Court of JusticeCase Concerning the take hold of Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium).The reasons commonly given for wherefore this immunity is not available as a defense to international crimes is straight forward (1) that is genocide, war crimes and crimes against humanity are not acts of state. sinful acts of the type in question are pull by human actors, not states and (2) we rousenot allow thejus cogensnature of international crimes, i. e. the fact that they arenon-derogablenorms, to be eroded by immunities. However, the final judgment of the ICJ regarding immunity may have thrown the existence of such a rule limiting utilitarian immunities into doubt.See in this respect the criticism of the ICJs approach by Wouters, Cassese and Wirth among others, though some such as Bassiouni claim that the ICJ affirmed the existence of the rule. Regarding claims based on the idea that a senior state official committing International crimes can never be said to be acting officially, as Wouters notes This argument, however, is not waterproof since it ignores the sad reality that in most cases those crimes are merely committed by or with the support of high-ranking officials as part of a states policy, and thus can fall inwardly the scope of official acts. Academic opinion on the matter is split and indeed only the future development of International Customary law, maybe accelerated by states exercisinguniversal jurisdictionover retired senior state officials, will be able to confirm whether state reign has now yielded partially to internationally held human rights values.In November 2007, French prosecutors refused to press charges against originator US Secretary of Defense Donald Rumsfeld for torture and other alleged crimes committed during the course of the US invasion of Iraq, on the grounds that heads of state enjoyed official immunity under customary international law, and they further claimed that the immunity exists after the official has left office. 1