International Law Immunities and the International Criminal Court

Abstract

The tension between the protection of human rights and the demands of state sovereignty is reflected in the debate on whether state officials should be held responsible in external fora for international crimes committed while in office. This debate involves the interplay between two branches of international law. Firstly, there is the well-established law according immunities to the state and its agents from the jurisdiction of other states (state and diplomatic immunities). This law proceeds from notions of sovereign equality and is aimed at ensuring that states do not unduly interfere with other states and their agents. On the other hand, there are those newer principles of international law that are based on humanitarian values and define certain types of conduct as crimes under international law (international criminal law). One of the challenges in this latter area has been to develop international and national mechanisms by which individuals who commit these crimes may be held responsible. Since states often fail to institute domestic prosecution of their own officials and agents alleged to have committed international crimes, renewed attention has been paid to the possibility of subjecting state agents to prosecution in foreign domestic courts or in international courts. For such prosecution in foreign domestic courts to take place, it will usually have to be shown (1) that those courts have jurisdiction over crimes committed abroad by foreigners against foreigners (i.e..universalorquasi-universal jurisdiction),and (2) that such jurisdiction extends to state agents (i.e., that international law immunities are unavailable). Recent years have seen a significant increase in attempts to institute prosecutions for alleged international crimes in the national courts of states other than that where the acts occurred. However, it has not proved easy to establish the two propositions identified above. Indeed, it has become apparent that the views that states possess universal jurisdiction over international crimes committed abroad and that incumbent and former state officials are subject to foreign domestic prosecution for such crimes are by no means universally held.