Immunity of heads of state and state officials for international crimes / by Ramona Pedretti.
2015
KZ7085 .P43 2015 (Map It)
Available at Cellar
Formats
| Format | |
|---|---|
| BibTeX | |
| MARCXML | |
| TextMARC | |
| MARC | |
| DublinCore | |
| EndNote | |
| NLM | |
| RefWorks | |
| RIS |
Items
Details
Author
Title
Immunity of heads of state and state officials for international crimes / by Ramona Pedretti.
Published
Leiden ; Boston : Brill Nijhoff, [2015]
Copyright
©2015
Call Number
KZ7085 .P43 2015
ISBN
9789004287761 (hardback : alk. paper)
9004287760 (hardback : alk. paper)
9789004287778 (e-book)
9004287760 (hardback : alk. paper)
9789004287778 (e-book)
Description
xix, 488 pages ; 25 cm.
System Control No.
(OCoLC)891942046
Note
Based on author's thesis (doctoral - University of Lucern), 2013.
Bibliography, etc. Note
Includes bibliographical references (pages 439-462) and index.
Record Appears in
Table of Contents
Acknowledgments
xvi
List of Abbreviations
xvii
Introduction
1
Part 1 General Assessments
1.
Introduction to the Immunity of Heads of State and Other State Officials
7
1.
The Concept of Immunity under International Law
7
2.
The Definition of Heads of State
9
3.
Immunity of Heads of State and Other State Officials
13
3.1.
Immunity ratione materiae
14
3.1.1.
The Principle Identified
14
3.1.2.
Purpose of Immunity ratione materiae
20
3.1.3.
Nature of Immunity ratione materiae
22
3.2.
Immunity ratione personae
25
3.2.1.
The Principle Identified
25
3.2.2.
Purpose of Immunity ratione personae
28
3.2.3.
Nature of Immunity ratione personae
29
4.
Circle of High-Ranking State Officials Entitled to Immunity ratione personae
30
4.1.
The Precedent: The Arrest Warrant Case
31
4.2.
Immunity of Heads of Government
35
4.3.
Immunity of Members of the Government Other than the Head of Government
40
4.3.1.
Immunity of Ministers of Foreign Affairs
40
4.3.2.
Immunity of Other Ministers of the Government
41
4.3.3.
Immunity of Former Ministers of the Government
45
4.4.
Immunity of Other State Officials
48
4.5.
Conclusion
52
2.
The Immunity of Heads of State and Other State Officials as Rules of Customary International Law
57
1.
The Elements of Customary International Law Applied to the Characteristics of the Immunity of Heads of State and Other State Officials
59
1.1.
The State Practice Capable of Contributing to Customary International Law
60
1.1.1.
Physical Acts, Claims, Declarations and Omissions
60
1.1.2.
Domestic Law and Domestic Judicial Decisions
63
1.1.3.
International Treaties
65
1.1.4.
International Judicial Decisions
67
1.2.
The Quantity and Consistency of State Practice
69
1.3.
The Opinio Jul-is
72
1.3.1.
Omissions
76
1.3.2.
Waiver of Immunity
82
2.
Immunity of Heads of State and Other State Officials in the Context of Crimes Pursuant to International Law: Modification of or Exception to Existing Customary Rules
85
2.1.
Modification of Customary International Law Relating to the Immunity of Heads of State or Other State Officials
88
2.2.
Crimes Pursuant to International Law
91
3.
Conclusion
95
Part 2 Contemporary Customary International Law Relating to Immunity of Heads of State and Other State Officials in the Context of Crimes Pursuant to International Law
3.
Immunity of Heads of State and Other State Officials from the Criminal Jurisdiction of a Foreign State
101
1.
Domestic Law Relating to the Immunity of Heads of State and Other State Officials
101
1.1.
General Domestic Law on the Immunity of Heads of State and Other State Officials
101
1.1.1.
Domestic Law Referring to International Law
102
1.1.1.1.
Domestic Law Equating Heads of State Immunity with State Immunity
102
1.1.1.2.
Domestic Law Providing for an Analogous Application of Diplomatic Immunity to Heads of State and Other State Officials
104
1.1.1.3.
Domestic Law Referring to Common Law
105
1.1.1.4.
Domestic Law Originating from the Civil Law Tradition
110
1.1.2.
Domestic Law Underpinning Immunity of Heads of State and Other State Officials in the Context of Crimes Pursuant to International Law
112
1.1.3.
Domestic Law Declining Immunity of Heads of State and Other State Officials in the Context of Crimes Pursuant to International Law
114
1.2.
Military Manuals
115
1.2.1.
United States of America
115
1.2.2.
United Kingdom
116
1.2.3.
Canada
117
1.2.4.
Military Manuals of Other States
118
1.3.
Domestic Law on the Implementation of the Statute of the ICC
118
1.3.1.
Implementation Law Removing Immunity of Heads of State and Other State Officials before Domestic Courts
119
1.3.2.
Implementation Law Addressing Immunity of Heads of State and Other State Officials in the Context of State Cooperation with the ICC
122
1.3.2.1.
Implementation Law Emphasising International Obligations Relating to Immunity
123
1.3.2.2.
Implementation Law Prioritising Compliance with ICC Requests
124
1.4.
Conclusion
127
2.
Domestic Case Law Relating to the Immunity of Heads of State and Other State Officials
129
2.1.
The Leading Cases Regarding the Immunity of Heads of State and Other State Officials
129
2.1.1.
The Arrest Warrant Case
129
2.1.2.
The Pinochet Cases
132
2.1.2.1.
The Decision of the House of Lords in Pinochet (No. 1)
133
2.1.2.2.
The Decision of the House of Lords in Pinochet (No. 3)
134
2.2.
Domestic Case Law Relating to the Immunity ratione personae of Incumbent Heads of State
138
2.2.1.
Domestic Case Law Affirming Immunity ratione personae in the Context of Crimes Pursuant to International Law
138
2.2.1.1.
Australia
138
2.2.1.2.
Belgium
139
2.2.1.3.
Democratic Republic of Congo
141
2.2.1.4.
Greece
141
2.2.1.5.
Netherlands
142
2.2.1.6.
Sierra Leone
142
2.2.1.7.
Spain
143
2.2.1.8.
United Kingdom
144
2.2.1.9.
United States of America
145
2.2.2.
Unsettled Domestic Case Law with Respect to Immunity ratione personae in the Context of Crimes Pursuant to International Law
149
2.2.2.1.
Austria
149
2.2.2.2.
Federal Republic of Germany
150
2.2.2.3.
France
152
2.2.2.4.
Italy
155
2.3.
Domestic Case Law Relating to the Immunity ratione materiae of Former Heads of State and Other State Officials
156
2.3.1.
Unsettled Domestic Case Law with Respect to Immunity ratione materiae in the Context of Crimes Pursuant to International Law
156
2.3.1.1.
The Legal Regime in the United States of America
156
2.3.1.2.
Trend Towards Abrogating Immunity ratione materiae in us Common Law
160
2.3.1.3.
Federal Republic of Germany
164
2.3.2.
Domestic Case Law Declining Immunity ratione materiae in the Context of Crimes Pursuant to International Law
167
2.3.2.1.
Austria
167
2.3.2.2.
Belgium
168
2.3.2.3.
Canada
169
2.3.2.4.
Chile
170
2.3.2.5.
Djibouti
172
2.3.2.6.
Ethiopia
172
2.3.2.7.
France
173
2.3.2.8.
Israel
175
2.3.2.9.
Italy
177
2.3.2.10.
Netherlands
179
2.3.2.11.
New Zealand
180
2.3.2.12.
Spain
180
2.3.2.13.
Switzerland
182
2.3.2.14.
United Kingdom
184
2.3.2.15.
Trials of War Criminals under Control Council Law No. 70 and National Statutes
185
2.3.2.16.
Excursus: The European Court of Human Rights in M-Adsani v. United Kingdom
189
2.4.
Conclusion
190
2.5.
Excursus: Availability of These Conclusions for Immunity of Heads of State and Other State Officials from Civil Jurisdiction?
192
2.6.
Excursus: Comparison between Diplomatic Immunity and Immunity of Heads of State and Other State Officials
196
3.
International Treaty Law and the Immunity of Heads of State and Other State Officials
197
3.1.
The Convention on the Prevention and Punishment of the Crime of Genocide of 1948
198
3.2.
The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984
204
3.3.
The Geneva Conventions of 1949
208
3.4.
Conclusion
210
4.
The Position of International Organisations and Academic Institutions on the Immunity of Heads of State and Other State Officials from Foreign Criminal Jurisdiction
211
4.1.
International Law Commission
212
4.1.1.
The Work of the Special Rapporteur and Its Consideration by the International Law Commission
212
4.1.2.
The Consideration of the Immunity of Heads of State and Other State Officials from Foreign Criminal jurisdiction by the Sixth Committee of the General Assembly
218
4.1.3.
The Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction
220
4.2.
The African Union
224
4.3.
Institute of International Law
229
4.
Immunity of Heads of State and Other State Officials from International or Internationalised Criminal Jurisdiction
232
1.
The Statutes of International or Internationalised Criminal Courts and the Immunity of Heads of State and Other State Officials
232
1.1.
The Treaty of Versailles of 1919
232
1.2.
The Charters of the International Military Tribunal at Nuremberg and the International Military Tribunal for the Far East
235
1.3.
The Statutes of the ad hoc International Criminal Tribunals
237
1.4.
The Statutes of Internationalised Criminal Judicial Bodies
239
1.4.1.
The Special Court for Sierra Leone
239
1.4.2.
The Extraordinary Chambers in the Courts of Cambodia
241
1.4.3.
Other Internationalised Criminal Judicial Bodies
242
1.5.
The Rome Statute of the International Criminal Court
245
1.6.
Conclusion
248
2.
International Judicial Decisions Relating to the Immunity of Heads of State and Other State Officials
250
2.1.
The Trial of the Major War Criminals at the International Military Tribunal at Nuremberg and at the International Military Tribunal for the Far East
250
2.2.
Judicial Decisions of the International Criminal Tribunal for the Former Yugoslavia
252
2.3.
Judicial Decisions of the International Criminal Tribunal for Rwanda
255
2.4.
Judicial Decisions of the Special Court for Sierra Leone
255
2.5.
Judicial Decisions of the International Criminal Court
257
2.5.1.
The Darfur Case
257
2.5.2.
The Libya Case
260
2.5.3.
The Kenya Case
261
2.6.
Conclusion
263
3.
The Position of the United Nations on the Immunity of Heads of State and Other State Officials from International or Internationalised Criminal Jurisdiction
268
5.
Interdependency between Immunity from Criminal Jurisdiction of a Foreign State and Immunity from International Criminal Jurisdiction
272
1.
The Cooperation of States with the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda
272
2.
The Cooperation of States with the International Criminal Court
274
2.1.
Situation of Competing Obligations
274
2.2.
The Approach of this Study to Art. 98(1) of the Statute
277
2.3.
Invalidation of Immunity under Treaty Law and Its Implications for Art. 98(1) of the Rome Statute
279
2.3.1.
Invalidation of Immunity under International Law among State Parties to the Rome Statute
279
2.3.2.
Application of Art. 98(1) in Respect of Requests that Solely Involve State Parties to the Rome Statute
283
2.3.3.
Application of Art. 98(1) in Respect of Requests for Arrest and Surrender of a Representative of a State Party Addressed to a Non-State Party
284
2.3.4.
Application of Art. 98(1) in Respect of Requests for Arrest and Surrender of a Representative of a Non-State Party Addressed to a State Party
285
2.4.
Invalidation of Immunity Pursuant to a Referral of the Security Council and Its Implications forArt. 98(1) of the Rome Statute
285
2.4.1.
Invalidation of Immunity of Heads of Non-State Parties
286
2.4.2.
Application of Art. 98(1) in Respect of Requests for Arrest and Surrender of a Representative of a Non-State Party in the Context of a Security Council Referral
290
2.5.
Invalidation of Immunity under Customary International Law and Its Implications for Art. 98(1) of the Rome Statute
292
2.5.1.
The PTC's Ruling in Respect of the Removal of Immunity under Customary International Law before International Courts
294
2.5.2.
The PTC'S Ruling in Respect of Art. 98(1) of the Statute
296
2.6.
Excursus: Bilateral Immunity Agreements and Their Implications under Art. 98(2) of the Rome Statute
299
6.
Conclusion on Immunity of Heads of State and Other State Officials under Contemporary Customary International Law
304
1.
Immunity ratione personae in the Context of Crimes Pursuant to International Law
304
2.
Immunity ratione materiae in the Context of Crimes Pursuant to International Law
307
3.
Synthesis
309
Part 3 The Relationship between Principles Relating to Crimes Pursuant to International Law and Immunity of Heads of State and Other State Officials
7.
Ultra vires Action and Individual Criminal Responsibility
313
1.
The Rationales Identified
313
2.
Discussion
315
2.1.
Crimes Pursuant to International Law as Official Acts
316
2.2.
Crimes Pursuant to International Law as Illegal ultra vires Conduct
317
2.3.
Individual Criminal Responsibility
321
2.3.1.
Individual Criminal Responsibility vs. Immunity ratione materiae
325
2.3.1.1.
Category of Persons Incurring Individual Criminal Responsibility
325
2.3.1.2.
Is There a Conflict of Norms between Immunity ratione materiae and Individual Criminal Responsibility?
328
2.3.1.3.
Immunity ratione materiae and Individual Criminal Responsibility[—]Which Rule Prevails?
329
2.3.2.
Individual Criminal Responsibility vs. Immunity ratione personae
330
2.4.
Individual Criminal Responsibility and State Responsibility
332
2.5.
Conclusion
334
8.
The Principle of Universal Jurisdiction and the Obligation aut dedere aut judicare
336
1.
The Rationales Identified
336
2.
Discussion
339
2.1.
The Distinction between Universal Jurisdiction and the Obligation aut dedere aut judicare
340
2.2.
Universal jurisdiction and Immunity of Heads of State and Other State Officials
342
2.2.1.
The Principle of Universal Jurisdiction
342
2.2.1.1.
The Admissibility of Extraterritorial jurisdiction
344
2.2.1.2.
Treaty-based and Customary Universal Criminal Jurisdiction
346
2.2.2.
Universal jurisdiction vs. Immunity ratione personae
351
2.2.2.1.
Immunity ratione personae as a Bar to the Establishment of Jurisdiction?
351
2.2.2.2.
Immunity ratione personae as a Bar to the Exercise of Jurisdiction
353
2.2.3.
Universal Jurisdiction vs. Immunity ratione materiae
354
2.2.3.1.
Is Immunity ratione materiae Co-extensive with Universal Jurisdiction?
354
2.2.3.2.
Is There a Conflict of Norms between Immunity ratione materiae and Universal Jurisdiction?
359
2.2.3.3.
Immunity ratione materiae and Universal Jurisdiction[—]Which Rule Prevails?
362
2.2.4.
Conclusion
366
2.3.
Obligation aut dedere aut judicare and Immunity of Heads of State and Other State Officials
368
2.3.1.
The Principle aut dedere aut judicare
368
2.3.1.1.
Treaty-based Obligation aut dedere aut judicare
370
2.3.1.2.
Customary Obligation aut dedere aut judicare?
372
2.3.2.
Obligation aut dedere aut judicare vs. Immunity ratione personae
375
2.3.2.1.
Is There a Conflict of Norms between Immunity ratione personae and the Obligation aut dedere aut judicare?
376
2.3.2.2.
Is There a Conflict between Immunity ratione personae and Measures Securing the Presence of the Accused?
379
2.3.3.
Obligation aut dedere aut judicare vs. Immunity ratione materiae
382
2.3.4.
Conclusion
383
9.
The Character ofjus cogens Norms and the International ordre public
386
1.
The Rationales Identified
386
2.
Discussion
389
2.1.
Delineation of the Field of Study
390
2.2.
Jus cogens Norms and Immunity of Heads of State and Other State Officials
391
2.2.1.
Jus cogens Norms Prohibiting Serious Crimes
391
2.2.2.
Jus cogens Norms vs. Immunity ratione personae
394
2.2.2.1.
Immunity ratione personae as a jus cogens Norm?
394
2.2.2.2.
Is There a Conflict of Norms between Immunity ratione personae and jus cogens Rules Prohibiting Serious Crimes?
395
2.2.2.3.
Is There a Conflict between Immunity ratione personae and the Obligations Pertaining to the Consequences of a Violation of jus cogens Norms Prohibiting Serious Crimes?
399
2.2.3.
Jus cogens Norms vs. Immunity ratione materiae
400
2.2.3.1.
Immunity ratione materiae as a jus cogens Norm?
401
2.2.3.2.
Is There a Conflict of Norms between Immunity ratione materiae and jus cogens Rules Prohibiting Serious Crimes?
401
2.2.4.
Conclusion
405
2.3.
International ordre public and Immunity of Heads of State and Other State Officials
407
2.3.1.
Erga omnes Obligations and Immunity of Heads of State and Other State Officials
407
2.3.2.
Balancing of Community and Individual Interests
410
2.3.2.1.
Does Immunity of Heads of State and Other State Officials Protect Individual or Community Interests?
411
2.3.2.2.
Standard for Balancing Competing Interests
412
2.3.2.3.
Protection of Fundamental Values Inherent to Human Rights and International Humanitarian Law vs. Interests Underlying Immunity ratione personae
414
2.3.2.4.
Protection of Fundamental Values Inherent to Human Rights and International Humanitarian Law vs. Interests Underlying Immunity ratione materiae
416
2.3.3.
Conclusion
420
10.
Conclusion on the Relationship between Principles Relating to Crimes Pursuant to International Law and Immunity of Heads of State and Other State Officials
422
1.
Immunity ratione personae and Principles Relating to Crimes Pursuant to International Law
422
2.
Immunity ratione materiae and Principles Relating to Crimes Pursuant to International Law
424
Summary
429
Bibliography
439
Table of Cases
463
Index
480