CYIL 2012

INTERNATIONAL LAW ON IMMUNITIES ACCORDED TO HIGHǧRANKING STATE OFFICIALS Incumbent heads of state, prime ministers or ministers for foreign affairs and other high-ranking state officials are accorded both personal immunity and functional immunity. A clear distinction must be made between those two factors as was presented in sub-chapter 1.2.1. When these representatives are brought to trial before foreign national courts they cannot be prosecuted as the accused is then shielded by the international customary rule on personal immunity, as demonstrated in the Qaddafi case, the Sharon case and the Fidel Castro case. Further, national courts do not have the power to issue an international arrest warrant over such persons according to, for example, the Arrest Warrant case. In contrast, international courts and tribunals can issue an arrest warrant for serving or former high-ranking officials without infringing immunities of those representatives, as happened in the case of Omar Al Bashir . This is due to various rules that the courts have adopted, for example Articles 27(2) and 98(1) of the ICC Statute and Article 7(2) of the ICTY Statute. As a result, one can draw the assumption that functional immunity as such cannot hinder the prosecution for core crimes. In contrast state practice has consistently upheld personal immunity, regardless of the nature of the charges, except before international tribunals. The future practice of international law on immunities will hopefully increase the number of those state officials prosecuted for serious crimes under international law, but still refrain from interfering with those that carry out their functions in an amicable way for the sake of peaceful cooperation among states.

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