CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ IS IT POSSIBLE TO PROSECUTE THE HEAD OF STATE? their office, since their actions are covered by immunity, which is also usually referred to as functional immunity. 21 Immunity ratione personae refers to the private conduct of the persons concerned, in case of for example a head of state who is protected only during their stay in office. After the termination of the position, this part of the personal immunity expires and the former representatives of the state can be summoned to court to account for their illegal actions, even for private actions that occurred during the duration of the office. The reason for this distinction is the fact that immunity is not supposed to protect a person, but the honour of the state that that person represents. This ground for protection in the case of private proceedings ceases after termination of office. The biggest problem with the theory of relative immunity lies in determining the boundaries between sovereign and private proceedings. The principle that a specific activity is not judged according to its purpose, but according to its nature, is predominantly applied. In many cases, it is helpful to answer the question of whether the relevant act could be performed by an ordinary citizen as a private person. 22 The stated content of the concept of immunities has evolved from the practice of states in proceedings between states. Therefore, nowadays, a former head of state could be summoned before a court other than the court of their state, if: 1. would be exempted from immunity by the state it represents, 23 2. it is an immunity ratione personae , which expires at the same time as the office is terminated, or 3. the proceedings relate to the prosecution of themost serious crimes under international law and the jurisdiction of the relevant international judicial body is given. 24 An ideal example is the case of Milošević , which was tried before the International Criminal Tribunal for the ex-Yugoslavia (ICTY). Its founding statute regulated the irrelevance of official status in the case of prosecution of persons suspected of having committed relevant crimes under international law. In its decision in this case, the ICTY confirmed that the principle of non-exemption from criminal responsibility due to a person’s official status is a principle of customary law. 25 In the Krstić case, the ICTY emphasized that immunity for crimes under international law can exist in the case of relations between states, 26 but it would be wrong to suggest that it exists before international criminal courts. 27 However, as will be analysed below, this statement can be seen in connection with the fact that the ad hoc tribunals were established by a resolution of the UN Security Council acting on the basis of Chapter VII of the UN Charter. In the case of an international court established by an international treaty, it is necessary to perceive the situation more comprehensively. 21 Akande, Shah, op. cit ., p. 825. 22 Compare Yang, op. cit., p. 59. 23 Compare Art. 32 of the Vienna Convention on Diplomatic Relation which concerns diplomatic representatives. 24 Arrest Warrant Case , op. cit ., para. 61. 25 ICTY, Prosecutor v. Milošević , IT-02-54, Decision on Preliminary Motions, Chamber, 8 November 2001, para. 28. 26 See e.g., the issue of functional immunity, which is discussed by the UN Commission for International Law in relation to the investigated area of immunities of state officials from foreign criminal jurisdiction, where it is discussed in the context of interstate relations, i.e., on the horizontal level, not on the vertical level of relations between the state and the international court. 27 ICTY, Prosecutor v. Krstić , IT-98-33-A, Decision on Application for Subpoenas, Appeal Chamber, 1 July 2003, para. 26.

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