The Idea of Immunity of State Officials - Essay Example

To what extent do officials enjoy immunity from prosecution for international offences? I. Introduction The idea of immunity of officialsfrom prosecution for international offenses stems from the principle of equality among states and that a state is free from the jurisdiction of another state (Manaczuk P 1997 also cited in Tunks M. 2002). Under the principle of absolute immunity for sovereign states, no states could be sued and “put into trial without its consent” (Tunks M 2002). However, as countries become more involved in proprietary and commercial activities, there is a notable shift in from the traditional concept of absolute immunity to what we now call “restrictive sovereign immunity” (Manaczuk P 1997 also cited in Tunks M. 2002). Under the principle of restrictive sovereign immunity, states will only be immune from suit if it is exercising government functions but not when it is doing private acts or entering into commercial transactions (Tunks M. 2002). When the immunity of the state from suit is restricted, the immunity of its officials is also restricted. Accordingly, there are three distinct principles that involve the idea of the immunity of the head of state and other government officials who are visiting other countries like the United States. These three principles are the state sovereign immunity principle, the diplomatic immunity principle and the head of state immunity principle (Tunks 2002). The origins of the principle of head-of-state immunity derives from the idea that the state and its rulers are one and the same ( Mallory J. 1986). As the alter ego of the state, the state officials are therefore accorded with some degree of immunity which, like that of the immunity of the state itself, is subject to restrictions. Although there are some decided cases involving the immunity of state officials from prosecution for international offences, this area had remain gray for most part. If we take a closer look at the laws and treaties governing the United States and its visiting foreign state officials, there has not really been a clear cut policy of government on the extent of the immunity enjoyed by state officials form prosecution for international offences (Bederman D. 2001). We shall discuss this principle more thoroughly in the later part of the paper. On the other hand, diplomatic immunity is anchored on the principle that diplomats are representatives of their country and that without such immunity; they will not be able to carry out property their official functions. Under the Vienna Convention on Diplomatic Relations, the purpose of diplomatic immunity was clearly outlines as to “ensure the efficient performance of the functions of diplomatic missions.” 1 However, diplomatic immunity gives a more restrictive form of immunity. Diplomatic agents are considered immune from arrest and from criminal prosecution. Furthermore, they are immune from civil prosecution except in cases which involve their personal or private properties and those activities that are already outside of the realms of their official functions. II. Limitations of the Immunity of Heads of States and other State officials Heads of state are accorded with immunity to freely interact with other states without fear of being prosecuted or subjected to the host state’s jurisdiction. As the symbol of the state, the head-of-state is accorded with appropriate respect in many countries all over the world. However, with the shift towards restrictive form of inviolability of states and its officials, there are now some instances where the inviolability of the heads of state is outweighed by more important state interests and treaties (Fitzgerald 2001). According to the case of Lafontant V Aristide (1994)2, the restrictions on the immunity of the heads of state makes it a distinctive legal concept that there is a need to “reconsider the extent to which the goals of sovereign equality and functional necessity” in order to justify the exemption of the heads of state from judicial process of international courts and other states. Moreover, there are now sectors which seek to undermine the head of state immunity doctrine on the ground that where this doctrine is considered absolute, it will “prevent states from bringing some violations of the most serious international crimes to justice...”(Osoftsky 1997 also cited in Tunks 2002). In must be noted that in the past years, many heads of states has been involved in violent activities that have caused deaths and sufferings among their subjects. Yet, to what extent can a head of state hide behind the mantle of the immunity of the head of state doctrine? Can a head of state who is accused of violating the human rights of its people be considered as no longer protected by this doctrine and can therefore be tried in the Courts? When the United States Congress codified the Foreign Sovereign Immunities Act (FSIA) in 19763, it allowed the American courts to take jurisdiction over foreign states in certain acts involving commercial dealings of that country within American soil. The FSIA defined a foreign state to include both the state itself and all its political subdivisions including agencies and instrumentalities. However, the FSIA is silent when it comes to the jurisdiction of the courts when it comes to the head of state. According to the case of Lafontant v Aristide (1994)4, “the view that the FSIA is inapplicable to a head of state comports with both the history of the FSIA and the underlying policy of comity”. Since the FSIA is silent on the jurisdiction of the courts regarding heads of state, Fitzgerald (2001), commenting in the case of Pinochet said that the result of the FSIA exclusion of the definition of the jurisdiction of the Courts on heads of state brings about the “division of the principles of the sovereign immunity and head of state immunity.” In effect, since the time the FSIA was enacted by the United States Congress, the courts have consistently interpreted the law to include only state sovereign immunity and not the heads of states of foreign governments5. Although the jurisdiction of hearing cases against heads of state technically resides in the Courts6, the United States courts have always been reluctant to exercise jurisdiction over heads of state since such exercise of jurisdiction . In the case of Doe v United States (1988)7, the court recognizes that the exercise of such jurisdiction over heads of state could have some bearings on the international relationships of nations. As a result, the Court said that “the fielded of foreign relations is largely confided to the President by Article II of the Constitution” thus in the case of Republic of Mexico v Hoffman (1945)8 and in the later case of Baker v Carr (1962)9, the court ruled that when the executive branch deems it proper to accord immunity to a foreign leader, then such decision of the executive branch shall be binding upon the federal courts. Only when the executive branch of the government is silent on the status or the immunity accorded to a head of state shall the courts venture into exploring the issue of immunity10. According to the recent decisions of the courts regarding the issue of immunity of the head of state, the court will take cognizant of the immunity of the private acts of foreign heads of states and officials when these conditions are met namely (1) the person seeking immunity is the incumbent head of state and is currently setting as such11 (2) the United States government recognizes that person as the legitimate head of that state12 (3) the foreign state has not waived the immunity13. These three requisites for the granting of immunity is absolute and the absence of one of these requisites would not entitle the defendant to immunity under the United States courts (Tunks 2002). Technically, the immunity of the head of state has been one of the most well discussed topics in international law. For the past several years, cases involving the immunity of the head of state have reached various courts all over the world. In the United States, the most popular cases involving immunity of the head of state from international crimes are the cases of Tachiona v Mugabe (2001)14 , United States v Noriega (1997)15, In re Estate of Ferdinand Marcos (1994)16 , Lafonte v Aristide (1994)17 and the case of R v Bow Street Magistrates; ex parte Pinochet Ugarte (No 3) [2000]18. In the case of In re Estate of Ferdinand Marcos (1994)19, the United States court ruled that former heads of states shall not enjoy any protection on their private acts committed while in office. Note that in the case of Marcos, it was alleged that the former president of the Republic of the Philippines authorized the torture and execution of thousands of people who criticized the government during the declaration Marshall Law in the county. The Court recognized that the authorization of violence and killings is illegal per se and could not be part of the official acts of the head of state. Since the authorization of the military to perpetuate acts of violence against the people that they are sworn to protect is contrary to law and public morals, such acts of violence should therefore be considered as private offenses of which a former head of state must answer to. In the decision of the court in this case, the court said that “He was not the state, but the head of state, bound by the laws that applied to him.”20 Since Marcos was no longer a head of state at the time the trial was conducted, the court ruled that such actions against Marcos does not have any effects on the ability of the Philippines as a nation to effectively engage in diplomatic relations with other nations. The case of the former Panama dictator Manuel Noriega presents a case where the defendant was not recognized by the United States as the legitimate ruler of a country. In the case of Noriega, he assumed power after a disputed presidential election. The United States did not recognize him as the rightful ruler of Panama, thus, when he was brought to trial in Florida for drug charges, the court ruled that he is not entitled to immunity as head of state since he was never recognized by the US Government as such21. In contrast to the case of Noriega, the case of Lafonte v Aristide (1994)22, the United States Government continued to recognize President Jean-Bertrand Aristide as the legitimate head of state of Haiti even after he was ousted in a military coup in 1991. While Aristide was in exile in the United States, he was accused of orchestrating a political assassination. Relying on the fact that the US government still recognizes Aristide as the head of state of Haiti and is therefore immune from suit, the case filed against him was later on dismissed. Note that according to the established qualifications for immunity, a head of state which is recognized as such by the United States government shall be accorded protection as such under the law. The recent development which was brought about by the decision in the case of R v Bow Street Magistrates; ex parte Pinochet Ugarte (No 3) [2000]23 where the court declared that there is no immunity for former heads of state for crimes against humanity and that the acts which were “performed by the officials under the color of state law are not necessarily state acts when it violates international law”24. In the case of Pinochet, the court did not grant him immunity as “International Law rejects hostage taking and torture as official functions of government (Pierson 2000).” The decision in the case of Pinochet now brings us to question as to what is the present stand of the United States when it comes to the interpretation of the doctrine of immunity. Does the United States still adhere to the principles espoused in the cases of Noriega, Marcos and Aristide or does it follow the recent rulings in the case of Pinochet? In the case of Tachiona v Mugabe (2001)25, the United States court clearly stated that the immunity of the heads of state applies where the state official is recognized as such by the United States government and that the state from which that person came from had not waived such immunity. The immunity extends not only to the head of state but also to other state officials who are conducting official business for and in behalf of their governments. Technically, the case of Mugabe is consonance with the case of The Democratic Republic of Congo v Belgium (2002)26 where the US Federal District Court recognized the immunity of Foreign Minister Abdulaye Yerodia Ndombasi. According to the decision of this case, the immunity and inviolability of an incumbent Minister of Foreign Affairs is clearly defined in the Vienna Convention on Diplomatic Relations of 18 April 1961 (see the preamble and Article 32) and in Article 21 of the New York Convention on Special Missions of 8 December 1969. By the nature of the functions of a Minister for Foreign affairs, the state official shall enjoy full immunity from acts performed whether in his/her “official capacity” and those claimed to be performed in his/her private capacity27. III. Conclusion The immunity of state officials have followed suit in the shift of the doctrine of state immunity. Based on the cases of Marcos, Noriega and Aristide and recent decisions in the Tanchiona v Mugabe case and the case of The Democratic Republic of Congo v Belgium, we can therefore summarize the five important points relating to the subject as to the limitations of the immunity of a state official. First, the immunity doctrine may only be invoked by a person who is legitimately in power28, second, that person who invokes such immunity is recognized by the United States government as having such legitimate powers29, third, the state from which the person came from have not waived immunity30, fourth, bar the prosecution of the criminal offences for a period of time but it could not exonerate the person from the liability of the criminal act31 and fifth in extreme cases where the person concerned have committed heinous international crimes or crimes against humanity, the United States government has the implied power to elect to revoke the official diplomatic recognition of the state official thus making him/her vulnerable to prosecution (Tunks 2002). References: Laws, Journals and Books 1. Bederman D. (2001) International Law Advocacy and Its Discontents, 2 CHI. J. Int’l 475,479 2. Fitzgerald A. (2001) The Pinochet Case: Head of State Immunity Within the United States, 22 Whittier L. REV 987, 1006 3. Foreign Sovereign Immunities Act, 28 U.S.C. at 1602-1611 (2000) 4. Malanczuk P. ( 1997) Akehurst’s Modern Introduction to International law 118 (7th ed) 5. Mallory J. (1986) Resolving the Confusion Over head of state immunity: The defined Rights of King 86 Colum. L. REV. 169, 170 6. Osofsky H. (1997) Domesticating International Criminal Law: Bringing Human Violators to Justice, 107 Yale LJ 191, 206 7. Pierson C (2000) Pinochet and the end of Immunity: England’s House of Lords Holds that a Former Head of State is not immune for Torture 14 Temp. Int’l & Comp. LJ 263, 326 8. Tunks M. (2002) Diplomats or defendants? Defining the future of head of State Immunity retrieved 17 March 2007 http://www.law.duke.edu/journals/dlj/articles/DLJ52P651.HTM#H1N3 9. Vienna Convention on Diplomatic Relations, Apr. 18, 1961, article 29-38, 23 U.S.T. 3227. 3240-45, U.N.T.S. 95, 110-18 Cases: 1. Baker v Carr (1962) 369 U.S. 186, 210 (1962) 2. Case Concerning the arrest warrant of 11 April 2000 retrieved 17 March 2007 http://www.icj-cij.org/icjwww/idocket/iCOBE/icobejudgment/icobe_ijudgment_20020214.PDF 3. Doe v United States (1988) 860 F.2d 40,45 (2d Cir. 1988) 4. In re Estate of Ferdinand Marcos, 25 F. 3d at 1469-72 5. Lafontant V Aristide (1994) 844 F. Supp. 128, 135-37 (E.D.N.Y. 1994) 6. R v Bow Street Magistrates; ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147 7. Republic of Mexico v Hoffman (1945) 324 U.S. 30,35 (1945) 8. Tachiona v Mugabe (2001) 169 F. Supp. 2d 259 (S.D.N.Y. 2001) 9. United States v Noriega, 117 F. 3d 1206, 1211-12 Read More