CYIL 2012

PETRA BAUMRUK CYIL 3 ȍ2012Ȏ international community and in all circumstances (including in times of war). Jus cogens rules constitute obligatio erga omnes, meaning legal obligations such as the duty to prosecute or extradite which arise from the higher status of serious international crimes. The characterization of certain crimes as jus cogens places upon all states the obligatio erga omnes not to grant impunity to the violators of such crimes. 28 2.2 Incumbent or former Head of State Until recently the status of heads of state had not produced much controversy. Over the last few years, however, some controversial issues concerning heads of state have been brought up. These issues include problems concerning proceedings which have been brought against both the serving heads of state and former heads of state in respect of alleged international crimes committed while in office. International criminal law has therefore brought potential changes and issues definitely worth discussing. 29 Recognising a person as the head of state (the prime representative of his state) provides in international law the justification for affording the holder of such office immunities before the national courts of other states. 30 Immunity of head of state is related to state immunity, at least if the conduct at issue is related to the discharge of official functions in a wider sense. 31 Historically the relationship between state immunity and the head of state is close because the sovereign ruler tended to personify the state and no distinction was made between the immunity of the sovereign and the immunity of the state. 32 Further, immunities of heads of state are closely related to diplomatic immunity, especially when a head of state is officially travelling in another country. 33 In addition to functional immunities (immunity for official acts), heads of state and other high ranking officials enjoy privileges and immunities with regard to the premises where they perform their official transactions or live, and also for their private acts. 34 The serving head of state enjoys personal immunity (ratione personae) , which is considered to be absolute according to the International Court of Justice (hereafter ICJ) in the Arrest Warrant case 35 so even when accused of international crimes he is inviolable and immune from prosecution on the strength of the international rules on such personal immunities. 36 When heads of state leave their office they are still entitled to immunity in respect of official acts performed while in office. However, immunity is removed with regard to conduct performed in their private capacities before they attained office. Incumbent heads of state, as soon as they leave the office, may therefore no longer enjoy personal 28 M. Cherif Bassiouni: “International Crimes Jus Cogens and Obligatio Erga Omnes ”, p. 63-66. 29 M. Cherif Bassiouni: “International Crimes Jus Cogens and Obligatio Erga Omnes ”, p. 66. 30 Hazel Fox: The Law of State Immunity, p. 673.

31 Jürgen Bröhmer: State Immunity and the Violation of Human Rights, p. 29-30. 32 Jürgen Bröhmer: State Immunity and the Violation of Human Rights, p. 30.

33 Richard K. Gardiner: International Law, p. 384. 34 Antonio Cassese: International Law, p. 117. 35 See sub-chapter 2.2.2. 36 Antonio Cassese: International Criminal Law, p. 310.

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