Updated: Jun 28, 2020
So, you have probably heard someone attempting to invoke diplomatic immunity. But what does it mean to be a beneficiary of such an immunity? Generally, immunities protect a beneficiary from any crimes, whether that be from incurring a parking ticket to first-degree murder.
However, for the purposes of this article, I will focus on the international crimes in, and in the operation of immunities in the context of, the Rome Statute: genocide, crimes against humanity, war crimes and the crime of aggression. This article will address in more detail the two general forms of immunity afforded in international law: function and personal immunity.
Functional immunity is in essence, a ‘get out of jail free’ card issued by the government for acts they have ordered or permitted a person to do. For example, if your government tells you to travel to a certain area but that action carries criminal penalties, the authority in that area is not permitted to arrest you for that action (subject to certain conditions).
Functional immunity may be afforded to sitting and former government officials,[i] the rationale for such an immunity is to provide a substantive defence for any liability incurred by undertaking official acts.[ii] The International Criminal Tribunal for the Former Yugoslavia (‘ICTY’) in Blaškić outlined that under customary international law (‘CIL’) State officials cannot bear the consequences for actions that are attributable to the State.[iii]
Another rationale for functional immunity is to ensure the protection of State sovereignty where an action is brought against a state official.[iv] The International Court of Justice (‘ICJ’) held in Jurisdictional Immunities of the State that States are protected under CIL from foreign domestic proceedings.[v] Such a protection warrants an extension to those State officials fulfilling their official duties through functional immunity.
Erosion of Functional Immunity
Following the widespread commission of atrocities during World War II, the scope of functional immunity as a defence has been subject to reinterpretation. In Karadžić the ICTY held the official capacity of an individual does not justify, but aggravate individual liability for atrocity crimes.[vi] The non-applicability of functional immunity for such crimes was upheld in the Pinochet case by the House of Lords.[vii] The rationale of this decision toward non-applicability stems from the London Charter, which proposed that official capacity could no longer mitigate or exclude liability for atrocity crimes.[viii] This is consistent with the statutes of subsequent International Criminal Tribunals and Courts.[ix]
The principle of universal jurisdiction reaffirms this interpretation, though such jurisdiction does not apply to all atrocities. For instance, the Torture Convention and Genocide Convention obligate contracting parties to undertake measures to criminalise these atrocities.[x] In Eichmann, the Israeli Supreme Court ruled that functional immunity was no longer practicable and could no longer be used to justify the commission of atrocities.[xi]
In Pinochet Lord Wilkinson Browne outlined the necessity to put an end to the crime of torture through the exercise of universal jurisdiction by ensuring that ‘the torturer was not safe wherever he went’.[xii]
It is, however, possible that such atrocities may be attributed to States, as the ICJ ruling in Bosnian Genocide outlined.[xiii] Nonetheless, the purpose of such international criminal forums is to determine individual liability, and as such the development of this custom removes the ability for an individual to completely defer their liability onto their State.[xiv] It is now well accepted at CIL that functional immunity cannot be used to excuse the commission of atrocity crimes.[xv] Therefore, the current status of functional immunity at international law holds both the individual actors and their States accountable for the commission of atrocities.
Personal immunity is a shield from prosecution that you get while you in a specific government position. For example, while you are the Minister for Foreign affairs, you may not be arrested for crimes that you may have committed before or during your official term.
Personal immunity provides State officials absolute inviolability from all foreign civil or criminal proceedings for the period of time they hold office or are performing their diplomatic duties.[xvi] Personal immunity is generally afforded to high-ranking government officials including Heads of States and Ministers for Foreign Affairs,[xvii] and diplomatic envoys.[xviii]
This form of immunity may also manifest as a special mission immunity, where an ad hoc envoy, in essence, a temporary representative is afforded diplomatic inviolability for the duration of their visit.[xix] While the Convention on Special Missions has not achieved widespread signatory status,[xx] the principle of special mission immunity is considered by some, to be CIL.[xxi]
The rationale behind personal immunity is to guarantee the efficacy of diplomatic missions by ensuring the protection of State officials.[xxii] The ICJ outlined in Tehran Hostages that there is ‘no more fundamental prerequisite for the conduct of relations between States than the inviolability of diplomatic envoys and embassies’.[xxiii]
Further, personal immunity of a Head of State stems from the principle of non-intervention. As the ICJ explained in Nicaragua, ‘The principle [of non-intervention] forbids all States or group of States to intervene directly or indirectly in the internal or external affairs of other States’.[xxiv] Generally, a Head of State is a leader of a State, where their arrest would constitute an interference with the State’s affairs. Such a role carries a degree of symbolism, which in turn, requires the respect to be afforded through absolute inviolability.[xxv]
Unlike functional immunity, personal immunity is a procedural consideration which requires a Court to consider whether its beneficiary is within its jurisdiction.[xxvi] Considering the effects of this immunity, the ICJ correctly illustrated in Arrest Warrant that personal immunity does not mean impunity.[xxvii] It would be improper to suggest that the gravity of the alleged crimes can be a factor in considering the application of procedure. Therefore, the development of law which suggests individual criminal liability cannot be abrogated by an official position does not affect the status of personal immunity at law.[xxviii]
As such, contrary to its name, such an immunity operates to protects the State rather than to protect the direct beneficiary of the immunity. The gravity of the reasoning behind personal immunity would entail that it must extend to cover the commission international crimes to protect the sovereignty of States.
As illustrated above, it is challenging to generalise the nature of an immunity as the forms it will take will dictate its characteristics and the protections its beneficiaries receive. In this case, functional immunity cannot protect its holder from international criminal jurisdiction, however, personal immunity may still be able to.
Written by Elijah Png
[i] R. v. Bow Street Stipendiary Magistrate and others, Ex parte Pinochet (No.3)  1 AC 147 (‘Pinochet (no.3)’) 202. [ii] Antonio Casese and Paola Gaeta, Casese’s International Criminal Law (Oxford University Press, 3rd ed, 2013) 266; Attorney General of Israel v. Adolf Eichmann  36 ILR 277 (‘Casese and Gaeta’) 308-309. [iii] Prosecutor v Blaškić (Judgment on the Request of the Republic Of Croatia for Review of the Decision Of Trial Chamber II Of 18 July 1997) (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT-94-14, 29 October 1997) . [iv] Dapo Akande and Sangeeta Shah, ‘Immunities of State Officials, International Crimes, and Foreign Domestic Courts’ (2011) 21(4) European Journal of International Law 815, 827. [v] Jurisdictional Immunities of the State (Germany v Italy; Greece Intervening) (Judgment)  ICJ Rep 99, 145 -. [vi] Prosecutor v Karadžić (Decision In the Matter of a Proposal for a Formal Request for Deferral to the Competence of the Tribunal Addressed to the Republic of Bosnia and Herzegovina in Respect of Radovan Karadžić, Ratko Mladić and Mićo Stanišić) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No IT-95–5-D, 16 May 1995) . [vii] Pinochet (no.3) (n i) 205, 220-221. [viii] Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, opened for signature 8 August 1945, 82 UNTC 280, arts 7-8; See also Steffen Wirth, ‘Immunity for Core Crimes? The ICJ's Judgment in the Congo v. Belgium Case’ (2002) 13 European Journal of International Law 877, 890. [ix] See, eg, SC Res 955, UN Doc S/RES/955 (8 November 1994) art 6; SC Res 827, UN Doc S/RES/827 (25 May 1993) as amended by SC Res 1977, UN Doc S/RES/1877 (7 July 2009) art 7; Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) art 27. [x] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) arts 4-5; Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951) art 5. [xi] Attorney General of Israel v. Eichmann  36 ILR 277, 311. [xii] Pinochet (no. 3) (n i) 198. [xiii] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment)  ICJ Rep 43, 238. [xiv] Dapo Akande and Sangeeta Shah, ‘Immunities of State Officials, International Crimes, and Foreign Domestic Courts’ (2011) 21(4) European Journal of International Law 815 (‘Akande and Shah) 840. [xv] See, eg, Prosecutor v Furunzdija (Judgment) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No IT-95-17/1-T, 10 December 1998) ; Prosecutor v Milosevic (Decision on Preliminary Motions) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No IT-02-54, 8 November 2001) . [xvi] Pinochet (no. 3) (n i) 201-202; Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Judgment)  ICJ Rep 3 (‘Arrest Warrant’) 21-22 -. [xvii] Arrest Warrant (n xvi) 20 ; Pinochet (no. 3) (n i) 155. [xviii] Vienna Convention on Diplomatic Relations, opened for signature 24 April 1963, 500 UNTS 95 (entered into force 24 April 1964) art 29; Convention on Special Missions, opened for signature 8 December 1969, 1400 UNTS 231 (entered into force 21 June 1985) (‘Special Missions Convention’) art 29. [xix] Special Missions Convention (n xviii) art 1. [xx] Special Missions Convention (n xviii). [xxi] Akande and Shah (n xiv) 822-823. [xxii] Arrest Warrant (n xvi) 22-23 -. [xxiii] United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran) (Judgment)  ICJ Rep 3, 43 . [xxiv] Military and Paramilitary in and against Nicaragua (Nicaragua v United States) (Merits)  ICJ Rep 14, 107-108 . [xxv] Akande and Shah (n xiv) 824. [xxvi] Casese and Gaeta (n ii) 266. [xxvii] Arrest Warrant (n xvi) 26-27 . [xxviii] Phillip Wardle, ‘The Survival of Head of State Immunity at the International Criminal Court’ (2011) 19 Australian International Law Journal 181, 193; Roseanne van Alebeek, The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law (Oxford University Press, 2008) 266.