CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ

IS IT POSSIBLE TO PROSECUTE THE HEAD OF STATE?

2. Immunities in International Law and High Officials of State The criminal responsibility of an individual at the international level as such is based on national legal systems, but the question of the prosecution of specific individuals, even of the high state representatives, is fundamentally influenced by international law, because it concerns both the high representatives of the state and moreover, interferes with interstate relations and the very essence of the coexistence and cooperation of states. Part of this area of international law is created by the functional connection of state sovereignty and the status of state representatives, which has been transformed into the legal institute of immunities. The institute of immunities results from the nature of the international community, which is created by states as equal subjects. This equality is guaranteed by the principles of international law, especially the right to political independence and the related sovereignty of the state and the immunity of its representatives. The sovereignty of states and their mutual equality must be understood as equality before the law. 8 There is no “higher power” over states that can legitimately compel states to fulfil their obligations, unless states as sovereign entities themselves decide to create such an instance in some cases. A sovereign state is a model of a legal entity, which is comparable to the concept of a legal entity within national law. Even in the case of states, there are persons who represent their state in relations with other subjects of international law. Each of these representatives have a certain level of immunity that arises from either customary international law or international treaty law. 9 Moreover, it is necessary to distinguish between the immunity of the state and the immunity of its representatives. As such, the institute of immunities is a procedural institute. 10 The immunities of state representatives originate from the principle par in parem not habet imperium (lat. an equal cannot rule an equal) and thus correspond to the principle of sovereign equality. 11 The granting of immunity is an obstacle to the proceedings, which essentially means the impossibility of starting or continuing them. 12 By the term immunity we mean the right to be exempted, or the obligation to exempt a legal entity from the jurisdiction of a judicial body of another state or international organization. 13 However, this principle has its limits, which depend on the aforementioned type of legal entity to which immunity belongs, as well as on the source of international law in which the granting of immunity originates. Exemption from the jurisdiction of the courts of another state, or international organization, is not the result of a purposeless development. It means the protection of specific interests - the dignity of a foreign state, its bodies, and representatives, it enables the 8 ČEPELKA, Č., ŠTURMA, P., Mezinárodní právo veřejné [Public International Law], C. H. Beck, 2008, p. 52. 9 Immunity can be regulated by international treaties (e.g., Vienna Convention on Diplomatic Relations of 18 April 1961, Vienna Convention on Consular Relations of 24 April 1963, Vienna Convention on the Privileges and Immunities of International Professional Organizations of 21 November 1947) or by international customary law (e.g., immunity of heads of state who enjoy at least the same privileges and immunities as diplomats during their stay on the territory of another state based on the Vienna Convention on Diplomatic Relations). 10 Arrest Warrant Case , op. cit ., para. 60. 11 Compare UNCharter, Art. 2(1) See also ILC Report (Report of theWorking Group on Jurisdictional Immunities of States and their Property), ILC Yearbook 1978, vol. II, 2, p. 153. However, see also Yang, X., State Immunity in International Law , Cambridge University Press, 2012, p. 51. 12 Arrest Warrant Case , op. cit ., para. 60. 13 ŠTURMA, P., CHOVANCOVÁ, K., ŠMIGOVÁ, K., VĚTROVSKÝ, J., Immunities of States and Their Officials in Contemporary International Law , rw&w Science & New Media, 2017, p. 9.

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