International Jurisdictions and Immunity - Essay Example

? INTERNATIONAL JURISDICTIONS AND IMMUNITY Introduction Persons commit various kinds of offenses among which are the civil crime administrative as well as criminal acts and the infringement of the human rights as stipulated and observed at a global perspective. Legal framework have been and continues to be applied in addressing the criminal offenses done by persons while acting on personal behalf or when acting at a states behalf as obliged by office. However, during the course of serving, people often infringe the sovereignty of human rights and commits crime, which necessitates the intervention by court of law. Sovereign countries have well structure court systems, which adjudicates on the offenses as committed and presented. However, individual states are sovereign and cannot be sued by the virtual of independence. The domestic court systems therefore cannot adjudicate against another country, as before the law, independent countries are not sued. However, the domestic legal systems often meet the challenge of adjudicating against state persons such as the heads of government and diplomats for the reason that these persons enjoy immunity from law as provided for by the domestic laws. This has been the background upon which the establishment and running of the international and regional court system is based1. International law has provisions of covering accused persons to avoid prosecution over criminal acts though under specific conditions. Whereas functional immunity covers individuals who perform specific duties in a country, personal immunity is a privilege enjoyed by persons based on the office they hold within a state. Foreign officials usually charged with specific functions of a state often enjoy immunity from the treaty law as well as customary international law. The provision has it that as the persons perform the duties assigned; they are covered against prosecution for any instance of any criminal offense committed. The coverage prevails even after the official stops performing the state duty. It would only cease to apply in the event that the sovereign country ceases to exist and is therefore said to ride on the sovereignty and dignity of a country. Heads of government, states senior ministers as well as cabinet members are example of official responsibilities to which the immunity covers2. The individual occupying the positions would not be prosecuted for any criminal offense committed while in office. Nevertheless, the persons are liable to prosecution only after their term of office is over only for criminal offenses committed before as well as after their occupancy of the specific office. Moreover, the prosecution may cover offenses committed at personal discretion while in office though this often raise concern of the clarity of the provisions. However, emerging concerns in the international legal procedures are that the provisions should only apply to domestic or local civil liabilities and should not apply to international crimes. The essence of the international legal framework would be compromised in the instances where persons and states stand covered against the course of justice by such immunity. On the other hand, customary international law confers such an immunity against prosecution to individuals holding certain offices in the civil, administrative as well as criminal jurisdictions. Agents on diplomatic assignments abroad together with their families are such examples of persons enjoying such privileges of coverage against prosecutions for criminal offenses committed during their tenure in office. Under this type of immunity, some privileges are inviolable and includes private residence, correspondence, property of an official enjoyments and papers3. The privileges covered on the personal immunity include the cover against arrests as well as detention, civil and administrative jurisdiction, as well as criminal jurisdiction and other such crimes committed over the period. This provisions is based on the needs for sovereign states to safeguard their own states person for the purpose of effective operations. However, the personal immunity cover cease to apply with end of term of service of these persons. Nevertheless, recent developments in international law have increasingly debated against the authenticity of these provisions of immunity. There is no such immunity recognition in the international law provisions covering state official though the provisions still exists within sovereign states. Sovereign states however emphasize and maintain the essence of the sovereignty of the immunity to the state officials for the purpose of dignity and sovereignty of the individual countries. This paper therefore intends to critically analyze the rationale for the state person’s immunity as it relates to international legal provisions. Moreover, the paper will highlight the circumstances under which the immunity is recognized and or denied within the international framework. Akande and Shah sought to examine and understand the levels to which state officials are exposed to prosecution while in foreign or domestic courts for international crimes. The study confirmed that practical preparedness for enforcement of international law by countries has not been realized despite the great steps taken in designing legal frameworks that address the international crime. Commitment to international crime and procedures has not matched the desire to have the procedures in place, which would address the occurrence of such crime. The basic primary procedures of international judicial enforcement have been exercise of the international procedures at the domestic level within the country in which the crime has been committed. Therefore, the courts in the country in which the crime against humanity or any form of international crime has been committed are charged with the initial obligation in prosecuting the individuals/perpetrators. Therefore, it is a legal provision of the international law that the states within which crimes are committed are obliged to carry out the prosecution of the persons responsible. Moreover, the human rights has it that human beings are entitled to remedies or any form of reparation in the event that their rights are violated by the states within which the violation occurs. However, the procedural enforcement of these international laws and the procedures to order remedy over violation of human rights often fail hence making international criminal law procedures somehow complicated ad effective. On the other hand, domestic legal provisions, which would be used to compliment the international legal provisions, lack necessary international substantive human rights. Nevertheless, the study found out that international crimes often result from state officials who ride on the state policies, which covers prosecution of such state officials under the domestic legal frameworks. This therefore explains the perpetuity of impunity within countries, which continuously infringes the human rights. However, evolution of the judicial procedures has established that such cultures of impunity would be addressed within international as well as regional courts, which deal with state responsibility. Moreover, the establishment of international criminal tribunals has been established and deals with the penal responsibility regarding persons. It is however worth noting that human rights enforcement by such courts is inhibited by the reason that there may lack optimum legal jurisdictions addressing the specific issues in question at any specific time. Due to this reason, international justice advocates have pointed that domestic courts of other states may prevail to offer favorable solution to the crimes committed by such persons under the immunity and whose native jurisdictions would not address. However, the judicial procedures must establish the levels of immunity enjoyed by the state officers prosecuted within its provisions because the state official are often under the cover of the sovereign nations to which they were acting or the represented. Literature reveals that the immunity advanced to the state officials such as the government heads, diplomats as well as the other state officials by international law is meant to ensure the proper relations of countries that would be involved in the case and not as otherwise should be the reason behind the perpetuity of impunity by these persons. However, the major concern that has been a nag for the international law has been to address the civil cases leveled against a state, civil cases leveled state official as well as the criminal cases tabled against state officials. This has been a major cause of concern by the international community and the jurisdictions4. Despite that, there are well-established international courts whose obligations and procedures of working are clearly stipulated, the court systems fall short of the capacity to prosecute all crimes of international caliber, which are committed throughout the globe. Impunity has lowered the capacity of the international legal system to effect successful prosecution to the state personnel but in the contrary has made prosecution only possible for junior staff as against the main perpetrators who are the state officers and the government heads. Sovereignty of the individual states confers immunity to these persons against prosecution for crimes committed along their official duties. Clarity lacks to substantiate the position of prosecution of former state personnel against crimes committed during their term of office with tension being notable on the requirement to maintain effective relations between countries and persons through international procedures and the need to observe the requirement of justice. The bottom line to the whole discussion is that modern day legal frameworks are the acknowledgement that persons have the capacity to perform criminal activities, which are interpreted to constitute international crime regardless of the observed state laws. This explains the reason that history has some state personnel prosecuted and charged for committing crime against humanity while in office. Nevertheless, the sovereignty of the domestic legal frameworks offers immunity to such persons except not within the frameworks of the international courts such as the ICC 5. The international courts are often made and set to work for specifically defined purposes such as the one to persecute the perpetrators of human rights or the like of other crimes against human beings. The frameworks upon which the international courts are formed shun off most of the immunity sovereignties that the state persons enjoy for the purpose of effectiveness in carrying out the responsibility as stipulated. However, politicizing the roles and the provisions governing the international justice systems has often been cited as the main obstacle in having the international criminal proceedings efficiently running6. The modern day office provisions entitle many persons to act on behalf of a country at one time hence the challenge in prosecuting the office bearers who on the other hand enjoy the state immunity. The international community in having clear-cut provisions pertaining to when the immunity of persons in imposed and whenever such immunity is shed however has challenged this. Moreover, the previous arguments have pointed to the controversy of pursuing the regal requirements as they stand or compromise them to favor diplomatic ties between the states represented in the legal suit. On other special focus, immunity to state persons have limitations and are thus not holistic in coverage as would be expected. Establishing the intention and reason for the state person visit a foreign country where they engage in the violation of human rights or committing crimes is a basic procedure in commencing in the arrest and prosecution of these persons. For persons to be on official duty within a foreign country, the host country must have been aware and at the same time consented to host the persons. This therefore brings a different dimension in undertaking the judicial procedures in international jurisdictions targeting the international crime in violation of human rights or general crime while in the country. Independent nations are sovereign even on matters of judicial provisions where all state courts are equal and hence one country cannot be prosecuted in another sovereign country. The understanding of the supremacy of the independent countries has been the basis of the operations of the international judicial systems to which sovereign countries assent. The international law is therefore designed and actualized at a higher level in comparison to the state courts7. It is therefore empowered to adjudicate on criminal and civil cases, which entail the state persons who enjoy immunity on personal rationale as well as the based on the duty assigned. Sovereign countries therefore are immune from liability under civil law in the international laws but liability is limited and as such, the sovereign country cannot be prosecuted. As regards to the levels of liability, the individuals who are covered against the consequences of their unlawful acts define the legal immunity as used in the legal provisions. Through this, the immunity therefore serves to exempt some individuals from the ordinary course of rules of jurisdictions as provided within the legal frameworks. This is in spite the legal provision that a visiting foreigner in any country consents to be a subject to the prevailing legal procedures governing the visited country. The persons assent to the requirement that he/she must observe the extraterritorial provisions governing the state visited while at the same time being ready to be prosecuted on the account of offenses committed while in the country. Whenever one country has extradition agreement with another country to try individuals of other territories against crime committed, a visitor may hence be subject to the extradition within this country and the subsequent arrest. This may permit even for crime committed within other territories and the visited country has assented to the international legal structure. International law provides for extradition of even offenses committed while at home background of the perpetrator. The international tribunals and courts are established with the sole reason of ensuring peaceful and harmonious co-relation between states and the person while at the same time avoiding conflict. However, the sovereign countries adopt immunity in order to be covered against the implications of the judicial procedures, which if allowed, would erode the sovereign status of the independent states. However, critical analysis of the provisions of the immunity to persons charged with specific roes or even because of occupying specific offices reveals that it is best necessitated for personal interest. The introduction of international or regional court systems has been necessitated by the need to address the ever riding levels of impunity which otherwise fails to be addressed within the local state courts at which the ‘special’ state personnel can easily maneuver. The international law therefore acknowledge the sovereignty of human rights and other privileges which the common citizens would be infringed of as a result of the immunity accorded to the persons in authority or the offices occupied by these people. depending on the nature of a country as either being common law countries or otherwise, the individual persons occupying specific offices and accorded various privileges regarding the legal provision may have their cases tried separately either as civil or criminal cases.. This as well explains the inherent conflict within the international jurisdictions as to what nature of legal procedures should be adopted in such cases. Common law countries therefore often lack coherence in matters pertaining to prosecuting and testing the civil as well as criminal cases within their territories. However, it is worth noting that the observance and acknowledgement of the individuals’ immunity does not fully allow states and persons to overlook their responsibilities while acting on behalf of the sovereign nation or at personal capacity. This is how domestic courts fail to have the capacity to preside over and adjudicate criminal offenses against individual crime perpetrators especially revolving around the state persons8. We therefore find from the ongoing discussion that though logic does not have a place of immunity of persons at international laws, the jurisdiction governing the international court systems are normally under some influence of state immunities. The proceedings of criminal cases that would have been committed before accession to power by government officials as well as other diplomats are hampered by the immunity accustomed to the persons by the virtue of office occupied or even on the virtual of task or responsibility, which the person was undertaking during the occurrence of the crime. However, supporters of the immunity to the persons argue that state persons who are under the cover of immunity are high in government ranking and as such need be safeguarded especially during their tenure of service. The supporters therefore reason that individual cases involving the state officials who enjoy the immunity helps decongest the local courts by being tried in the mechanisms9. Under certain circumstances international legal frameworks refuse to acknowledge the relevance of immunity to persons while at other times, it acknowledges the immunity10. Such instances when the international law would recognize the authority of the immunity would be while the state persons are still in office and while the domestic judicial procedures can be effective in addressing the grievances. However, there are other circumstances where no one is exempted from the consequences of own actions while acting on behalf of a country of at personal effect. The case of such would be in case where a person has been seen to commit crime in territories where their immunity is not appreciated. Under such conditions, the immunity or these persons would be overlooked for the course of jurisdictions. Observers reason that immunity is necessary only within the context of domestic legal procedures as against the generalization to cover the international coverage. Introduction and acknowledgement of immunity within the context of international law would lead to the failure of the institutions because if the domestic courts as well as the international courts fails to challenge the immunity, then the effectiveness of the international cases revolves around the ability to overlook the mandate assigned. In such consideration, the analysts reason that it’s not necessary for the immunity of persons to be upheld while addressing the international crime as well as effectively delivering on the intended mission. Nevertheless, there are other schools of thought, which acknowledge the role played by immunity at the international legal framework. In instances where the state persons are acting on behalf of a sovereign state, then the immunity would be imposed to safeguard the dignity of the sovereign state. In sum, great discussions have been leveled in the past concerning the topic of immunity to persons by the virtual of acting on own behalf or on the behalf of the state. Controversies have always been in the determination of what level of immunity one would enjoy at the domestic level as well as while at the international front. Therefore, in spite of the immunity, persons are seen to be regulated through the direct monitoring in the course of their official duties or concerning personal obligations. References Anon, nd, Immunity. < http://www.enotes.com/immunity-reference/immunity> accessed 18 July 2013 Dapo A. and Sangeeta S. 2011. Immunities of State Officials, International Crimes, and Foreign Domestic Courts. The European Journal of International Law, 21(4)pp. 815–852 Joan F, 2011. Immunity for International Crimes? IL BP 2011/02 Briefing paper. Elizabeth H. F., 2009. Immunity, Individuals and International Law. Which Individuals are Immune from the Jurisdiction of National Courts under International Law? Franey, E. H. 2009. Immunity, individuals and international law: which individuals are immune from the jurisdiction of national courts under international law? < http://etheses.lse.ac.uk/309/> accessed 18 July 2013 Micaela F., 2009, Some reflections on the functional immunity of state officials. The Italian Yearbook of International Law, 6 Jens I., 2012, Head of State Immunity is not the same as State Immunity: A Response to the African Union’s Position on Article 98 of the ICC Statute< http://www.ejiltalk.org/head-of-state-immunity-is-not-the-same-as-state-immunity-a-response-to-the-african-unions-position-on-article-98-of-the-icc-statute/> accessed 18 July 2013 Lori F. D., 2011, Changing the International Law of Sovereign Immunity Through National Decisions. Changing Immunity Law Through National Decisions. < http://www.vanderbilt.edu/jotl/manage/wp-content/uploads/Damrosch-pdf.pdf> accessed 18 July 2013 Malcom D. E 2009, International law. (first edition) United Nations, 2011, Immunity of State Officials Remains at Issue as Legal Committee Ends Review of International Law Commission Report. General Assembly GA/L/342< http://www.un.org/News/Press/docs/2011/gal3428.doc.htm>accessed 18 July 2013 Read More