Week 5(iii) - Immunities Flashcards
What are the two competing values when it comes to immunities? (2)
1) protect diplomatic channels
> <
2) avoid impunity
What is functional immunity? (5)
1) protects from liability for conduct attributable to the State
2) What: Covers acts in official capacity
3) who: covers all State representatives
4) when: Lasts forever
5) erga omnes: may be invoked against any State
What is the relation between functional immunity and ICL? (7)
1) Since WWII functional immunity not cover international crimes
2) Eichmann
3) National Caselaw
4) Akayesu (ICTR)
5) Krstic (ICTY)
6) International Statutes (ICTY, ICTR)
7) Nuremberg Principles (III)
What is personal immunity? (4)
1) what: covers all acts
2) Who: (Arrest Warrant)
(i) diplomatic agents
(ii) Heads of State
(iii) Heads of Govt
(iv) foreign Minister
3) when: only whilst in office
4) Not erga omnes: sometimes only invokable against receiving State
What is the relation between personal immunity and ICL? (2)
1) IL is reluctant to override personal immunity (Arrest Warrant)
2) Can be excluded by treaty though:
(i) Art IV Genocide Convention
(ii) Art 4 Torture Convention
(iii) Art 27(2) Rome Statute
What are the different rationales behind personal and functional immunity? (2)
1) Functional: protects official acts, to avoid violation of sovereign equality
2) Personal: facilitates international relations
What was held in Pinochet (No 3)?
Functional immunity does not prevent extradition for torture
What were different reasons given for the ratio in Pinochet (No 3)? (4)
1) Torture could never be committed in official capacity:
Cf.
(i) seems illogical
(ii) part of definition under CAT (not war crimes or CaH anymore)
2) torture is jus cogens and thus disapplies immunities
Cf. Procedure - substance?
3) CAT excludes due to internal inconsistency with official as part of definition
Cf. would limit the exception to conventions with internal inconsistencies
4) CIL exception to funcational immunity for international crimes
What was held in Arrest Warrant? (2)
Personal immunity :
1) extends to foreign ministers;
and
2) protects absolutely from domestic prosecution, even for international crimes
How did the ICJ in Arrest Warrant distinguish between international and domestic courts?
Suggested that whilst domestic courts cannot circumvent personal immunities, international courts can
What is the legal argument for distinguishing between domestic and international courts as to immunities? (2)
1) Less concern about sovereign equality? But Cf. Art 2(7) UN Charter
2) States have actively waived their immunities either in Statute or due to UNSC-imposed obligation (Chapter VII)
What is the political argument for distinguishing between domestic and international courts as to immunities?
Domestic prosecutions of officials carry higher risk of being politicized than international
Why did ICJ in Arrest Warrant suggest that personal immunity does not lead to impunity? (4)
1) persons may be tried in home courts
2) Home State may waive immunity
3) May be prosecuted after leaving office for private acts
4) may be prosecuted before international courts
Why did ICC Contracting States not apprehend Al Bashir when arrest warrant on him? (3)
1) He was head of State of SUD: personal immunity
2) SUD not State party (no waiver under Art 27)
3) Art 98: Contracting States must in apprehending respect their international obligations (incl personal immunity)
How does one solve the tension between Arts 27 and 98 for non-State parties? (2)
1) UNSC referral under Chapter VII of situation removes immunities (supported by academics)
2) ICC AC on Al Bashir (2019): Art 27(2) is reflective of CIL
(i) ensures no need to interpret referral to see if exclude
(ii) however not all agree with finding
