Week 8(ii) - Immunities

Question 1

What is an immunity?

Answer 1

1) A procedural bar to jurisdiction (of a tribunal) or enforcement over certain entities or subject-matter separate from questions of lawfulness
2) Arrest Warrant

Question 2

What is the relationship between jurisdiction (of States) and Immunities? (3)

Answer 2

1) First, a tribunal must have jurisdiction (by means of the state exercising adjudicative jurisdiction on one of the 4 bases of jurisdiction)
2) then the question of immunity of the entity arises
3) Arrest Warrant

Question 3

What is the rationale underlying immunities? (3)

Answer 3

1) Immunity is an expression of the principle of sovereign equality of States
2) Immunities are at odds with States territorial sovereignty (a balance must be struck)
3) Jurisdictional Immunities Case

Question 4

What is the purpose of immunities? (2)

Answer 4

1) to prevent national courts from determining the legality of certain acts of foreign States
2) Akande and Shah

Question 5

In what courts may immunity be invoked by a State or its officials?

Answer 5

Domestic courts ONLY (not ICJ) or potentially international tribunals that States have not consented to jurisdiction of.

Question 6

What is the consequence of a State’s domestic court ignoring the immunity of another State or its official? (2)

Answer 6

1) State Responsibility of the State violating the immunity

2) Arrest Warrant

Question 7

Can immunity be waived? (2)

Answer 7

1) Yes

2) Can be waived by the State to whom it belong (can even waive immunity of officials against their will)

Question 8

What are 2 exercises of state jurisdiction against which one may have immunity? (4)

Answer 8

1) Adjudicative immunity (immunity from jurisdiction of a domestic court)
2) Enforcement Immunity (immunity from having a judgment enforced against one’s person/property)
3) the two types are separate and require separate waivers of immunity
4) Jurisdictional Immunities

Question 9

What are the 3 main types of immunity?

Answer 9

1) Immunity of State as such
2) Immunity of State officials
3) Immunity of State property

Question 10

For what acts do the State as such enjoy immunity? (4)

Answer 10

1) acta jure imperii (sovereign acts) –> immunity
2) no immunity for acta jure gestionis (commericla acts/private acts) –> no immunity
3) Jurisdictional Immunities
4) Cf. some countries incl CHI do not recognize this restrictive view of immunity but prefers absolute immunity (i.e. immunity for all acts of State)

Question 11

What State property enjoys immunity? (3)

Answer 11

1) property used for public purposes –> immunity
2) property used for non-governmental purposes –> no immunity
3) Jurisdictional Immunities

Question 12

Which types of immunities exist for State officials? (2)

Answer 12

1) Immunity Ratione Personae

2) Immunity Ratione Materiae

Question 13

When/to what does immunity ratione personae apply? (5)

Answer 13

1) Who: Head of State, Head of Govt, Minister of Foreign Affairs (High-ranking state officials)
2) When: only whilst in office
3) What: covers ALL acts including those committed prior to taking office
4) Irrelevant for what purpose the official is abroad
5) Arrest Warrant

Question 14

What are the rationales for immunity ratione personae? (4)

Answer 14

1) ensuring uninhibited exercise of official functions (Arrest Warrant)
2) Symbolic sovereignty (official represent State and its dignity)
3) Principle of Non-intervention (interfering with State officials amounts to interference with State’s politics/autonomy)
4) Akande and Shah

Question 15

What is the status of domestic legislation setting aside immunities ratione personae in deomstic courts? (2)

Answer 15

1) Such legislation is ineffective/invalid

2) Arrest Warrant

Question 16

Does immunity ratione personae only apply to a closed category of people? (3)

Answer 16

1) It is enjoyed by “holders of high-ranking offices in a State SUCH AS the Head of State, Head of Govt and Minister of FA” (Arrest Warrant)
2) ICJ in Arrest Warrant extend to Ministers of Foreign Affairs based on functions in international relations (not actual practice and opinio juris) but could this not extend to all govt ministers? (Akande and Shah)
3) HOWEVER ministers other than of Foreign Affairs symbolize State less and arrest/detention interfere less with autonomy/sovereignty (see rationales for the immunity) (Akande and Shah)

Question 17

To when/who/what does immunity Ratione Materiae apply? (4)

Answer 17

1) Who: ALL State officials
2) What: only acts committed in official capacity
3) When: forever (even after leaving office)
4) Pinochet (No 3) (UKHoL)

Question 18

What is the rationale underlying immunity ratione materiae? (4)

Answer 18

1) diverting responsibility to the State for acts imputable to it
2) This prevents others from circumventing immunity of state by prosecuting its agents
3) Thus immunity ratione materiae will cover acts by officials amounting to both acta jure imperii and acta jure gestionis
4) Akande and Shah

Question 19

What does Pinochet (No 3) (UKHoL) tell us? (3)

Answer 19

1) Since Torture Convention defines torture as committed by officials, and also imposes obligations to prosecute or extradite, immunity ratione materiae must be excluded to avoid internal conflict (and avoid defeating object and purpose of Convention)
2) Acts prohibited and criminalized by IL cannot be done in an official capacity
3) Cf. Arrest Warrant saying that jurisdictions imposed by Conv cannot be taken to imply a waiver of immunity

Question 20

What is the relationship between HR and immunities? (4)

Answer 20

1) Al-Adsani v UK (ECtHR)
2) domestic courts respecting State immunity in civil claims does not violate the right to access a court (Art 6(1) ECHR)
3) It puruses legitimate aim for promoting good relations between States
4) state immunity does not impose disproportionate restrictions on Art 6(1)

Question 21

How did the ECtHR in Al-Adsani distinguish Pinochet (No 3)? (2)

Answer 21

1) Pinochet was criminal proceedings whereas Al-Adsani’s domestic claim had been civil
2) Al-Adsani was about immunity of State as such whilst pinochet was about immunity ratione materiae

Question 22

What are 3 criticisms of the ECtHR’s distinction of Pinochet (No 3) in Al-Adsani?

Answer 22

1) Why should Torture Convention only apply to individuals but not their States?
2) Permitting civil claims to fall under Torture Convention would merely complement it
3) Pinochet (No 3) never itself distinguished between civil and criminal claims

Question 23

What is the relationship between immunity of officials and jus cogens prohibitions in CIL?

Answer 23

1) Immunity is a procedural bar separate from questions of legality (and thus does not conflict with jus cogens prohibitions which are substantive) –> immunity also applies to breaches of jus cogens prohibitions
2) No CIL exception to absolute immunity ratione personae of ministers of foreign affairs regarding crimes against humanity or war crimes
3) Arrest Warrant

Question 24

Why is there no issue of impunity even if immunity is permitted to stand?

Answer 24

1) Arrest Warrant
2) State representatives have no immunity before their domestic courts
3) States can waive the immunities of their representatives (Cf. realistic if head of state?)
4) immunity ratione personae ends with leaving office
5) Certain international tribunals preclude immunities (ICTY, ICTR, ICC) (Cf. they have to have immunity)

Question 25

What is the relationship between immunity of the State as such and jus cogens prohibitions in CIL?

Answer 25

1) Jus cogens are substantive prohibitions whilst immunity is procedural and thus there is no conflict in which jus cogens can prevail –> immunities thus continue to apply
2) a conflict only arises where there is an obligation to prosecute jus cogens prohibitions, and where that obligation itself is jus cogens
3) Logically one cannot consider whether a jus cogen violation has occurred (merits) before dealing with immunities (procedure)
4) Jurisdictional Immunities

Question 26

What are 3 ways of approach non-Rome Statute signatories’ immunities before ICC upon referral by UNSC?

Answer 26

1) Only MS have waived their immunity through consent to Rome Statute
2) Statutes of past ICL tribunals have all waived state immunities –> CIL exception to immunity for international crimes (Cf. remaining State practice before domestic courts: this points other direction)
3) UNSCres referring and obliging States to cooperate prevails over inconsisting IL (incl. immunities) (Cf. obligation to cooperate can still be breached + seems inconsistent with Art 2(1) UNC)

Question 27

What are 3 mistaken arguments for why immunities should not apply to jus cogens violations? (4)

Answer 27

1) Akande and Shah
2) Jus cogens violations cannot be an acta jure imperii (cf. procedural question, and classification does not depend on legality)
3) jus cogens violations cannot be an official act (same as above, and would lead to discrepancy with attritbution under StateRes)
4) Immunity would conflict with Jus cogens which then takes priority (but procedure and substance do not conflict)

Question 28

What are 2 better arguments for why immunity ratione materiae should not apply to international crimes? (3)

Answer 28

1) Akande and Shah
2) Since ICL was created to ensure responsibility of officials, ratione materiae’s aim of diverting responsibility to the state is made irrelevant
3) the introduction of extra-territorial jurisdiction in Conventions/principles takes priority (by being newer/lex specialis) over ratione materiae’s aim of preventing States from exercising jurisdiction over State’s official acts