Diplomatic Immunity, Head of State Immunity, State Immunity: Misconceptions of a Notorious Human Rights Violator

1999 ◽  
Vol 12 (2) ◽  
pp. 361-371
Author(s):  
Jürgen Bröhmer
Keyword(s):  
Human Rights ◽  
Human Rights Violations ◽  
State Immunity ◽  
Head Of State ◽  
House Of Lords ◽  
Diplomatic Immunity

This decision of the House of Lords is significant because it is the first decision of a major court of an important country refusing to grant a former head of state immunity from adjudication in the context of alleged gross violations of human rights. It is shown that state immunity, diplomatic immunity and head of state immunity are to be distinguished and the rules pertaining to head of state immunity are explained. Whereas the author agrees with the result of Lords' decision, he disagrees with the reasoning because the majority circumvented the immunity question by artificially qualifying the alleged human rights violations of General Pinochet as private acts.

The First Pinochet Case: Immunity of a Former Head of State

1999 ◽  
Vol 48 (1) ◽  
pp. 207-216 ◽  
Author(s):  
Colin Warbrick ◽  
Dominic McGoldrick ◽  
Hazel Fox
Keyword(s):  
Criminal Liability ◽  
Sovereign Power ◽  
Criminal Proceedings ◽  
State Immunity ◽  
Head Of State ◽  
House Of Lords ◽  
Civil Proceedings ◽  
Protection Of Human Rights ◽  
The Individual ◽  
Reversal Of Fortune

The case of Pinochet has aroused enormous interest, both political and legal. The spectacle of the General, whose regime sent so many to their deaths, himself under arrest and standing trial has stirred the hopes of the oppressed. His reversal of fortune, loss of liberty with a policeman, on the door, has been heralded by organisations for the protection of human rights as one small step on the long road to justice. For lawyers generally, the House of Lords' majority decision of 1998 that General Pinochet enjoyed no immunity signalled a shift from a State-centred order of things.1 It suggested that the process of restriction of State immunity, so effectively begun with the removal of commercial transactions from its protection, might now extend some way into the field of criminal proceedings. And it further posed the intriguing question whether an act categorised as within the exercise of sovereign power, so as to relieve the individual official of liability in civil proceedings, may at the same time, as well as subsequent to his retirement, attract parallel personal criminal liability.

Part I Context, Challenges, and Constraints, 4 The ICC and the AU

2015 ◽  
Author(s):  
Maunganidze Ottilia Anna ◽  
du Plessis Anton
Keyword(s):  
Human Rights ◽  
African Countries ◽  
International Crimes ◽  
State Immunity ◽  
Court Of Justice ◽  
Head Of State ◽  
Political Background ◽  
The Impact ◽  
The Relationship

The relationship between the ICC and the AU has become a frequent bone of contention. The impact is naturally political, but it has also had an appreciable influence on ICC practice. This chapter analyses the legal and political background to the persistent disagreement, including the origin and foundation of divergent positions, such as, for instance, on head of state immunity and cooperation duties. It cautions against an oversimplification of ‘African’ views while also highlighting the progress made by some African countries in investigating, prosecuting, and adjudicating international crimes. It further examines the proposed expansion of the African Court of Justice and Human Rights’ jurisdiction to deal with serious crimes, including international crimes, and the implications thereof.

Immunity of a Former Head of State General Pinochet and the House of Lords: Part Three

2000 ◽  
Vol 13 (1) ◽  
pp. 229-237 ◽  
Author(s):  
Jürgen Bröhmer
Keyword(s):  
Human Rights ◽  
International Crime ◽  
Foreign Country ◽  
Criminal Courts ◽  
The Third ◽  
Head Of State ◽  
House Of Lords ◽  
Heads Of State

The third decision of the House of Lords in the Pinochet matter is significant, because the House of Lords upheld the majority view taken in the first decision: heads of state can, under certain circumstances, be held responsible for gross violations of human rights in the criminal courts of a foreign country. The decision is based on three main pillars. The Lords had, first, to clarify what constitutes an extradition crime under the Extradition Act 1989; second, to construct torture as an international crime; and, finally, to reject the plea of immunity of a former head of state in the context of the international crime of torture.

Introduction

2018 ◽  
Author(s):  
Edward Chukwuemeke Okeke
Keyword(s):  
International Organizations ◽  
Proper Understanding ◽  
State Immunity ◽  
Head Of State ◽  
Diplomatic Immunity ◽  
Conceptual Confusion

This chapter introduces the purpose of the book, which is to clarify the conceptual confusion that has bedeviled the proper understanding of both the jurisdictional immunities of States and of international organizations. It also sets out the scope of the book, which is to cover the similarities and dissimilarities between the jurisdictional immunities of States and international organizations. It examines the distinct rules of diplomatic immunity and head-of-State immunity to the extent they have a bearing on the scope of the immunities of international persons that are the main focus of this book. Furthermore, it examines the nature of jurisdictional immunity and lays out the structure of the book.

Sacrificing the Effectiveness of the European Convention on Human Rights on the Altar of the Effective Functioning of Peace Support Operations: A Critique of Behrami & Saramati and Al Jedda

2009 ◽  
Vol 11 (2) ◽  
pp. 155-183 ◽  
Author(s):  
Alexander Breitegger
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Human Rights Violations ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Effective Functioning ◽  
European Court ◽  
House Of Lords ◽  
Effective Remedy ◽  
The Uk

AbstractThe European Convention of Human Rights is unlikely to be an effective remedy for local individuals alleging human rights violations by European states participating in peace support operations abroad in the future. This conclusion is substantiated by analysing the restrictive and legally flawed stance taken by the European Court of Human Rights in the joint cases of Behrami and Saramati which had not only a precedential effect on this court's own jurisprudence but also on the case of Al Jedda v. UK Secretary of Defence before the UK House of Lords. Ultimately, the decisions in these cases may be understood by the choice to let the rationale of effective functioning of peace support operations prevail over the effectiveness of human rights protection of local individuals.

Jus CogensafterGermanyv.Italy: Substantive and Procedural Rules Distinguished

2012 ◽  
Vol 25 (4) ◽  
pp. 979-1002 ◽  
Author(s):  
STEFAN TALMON
Keyword(s):  
Human Rights ◽  
International Law ◽  
The State ◽  
Human Rights Violations ◽  
Limited Effect ◽  
State Immunity ◽  
The Icj ◽  
Jus Cogens ◽  
The Relationship

AbstractIn the case concerningJurisdictional Immunities of the State, the ICJ held that rules ofjus cogensdid not automatically displace hierarchically lower rules of state immunity. The Court's decision was based on the rationale that there was no conflict between these rules as the former were substantive rules while the latter were procedural in character. The ‘substantive–procedural’ distinction has been heavily criticized in the literature. Much of the criticism seems to be motivated by the unwanted result of the distinction, namely de facto impunity for the most serious human rights violations. This paper takes a step back from the alleged antinomy of human rights and state immunity and broadens the picture by looking at the relationship between substantive and procedural rules more generally. It is shown that substantive rules of ajus cogenscharacter generally leave procedural rules unaffected and, in particular, do not automatically override such rules. Substantive rules may, however, have a limited effect upon the interpretation and application of procedural rules. It is argued that the ‘substantive–procedural’ distinction is well established in international law and makes eminent sense even when substantive rules ofjus cogensand procedural rules of immunity are involved.

Domestic Workers’ Human Rights Versus Diplomatic Immunity: Developments in International and National Jurisprudence

2013 ◽  
Vol 22 (1) ◽  
pp. 201-220 ◽  
Author(s):  
Fulvia Staiano
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal Protection ◽  
Domestic Workers ◽  
Human Rights Violations ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
International Human ◽  
Diplomatic Immunity

Diplomatic immunities significantly contribute to a protection gap for domestic workers in diplomatic households who are victims of egregious forms of exploitation and abuse, and thus, of serious human rights violations. The abuse of such immunities by diplomatic agents in order to shun judicial review by the courts of the receiving States constitutes indeed a serious obstacle to obtaining redress. The resulting conflict between international rules on immunity and domestic workers’ human rights epitomizes the increasingly frequent challenges posed by international human rights law to classic rules of international law, and raises the issue of how to find balanced solutions to such conflicts. Against this background, the uncertain and discretional character of diplomatic measures prevents them from constituting a tool of legal protection for domestic workers experiencing human rights violations. With that in mind, this contribution inquires on alternative remedies available in international and domestic law, with a specific focus on the relationship between international rules on immunities and two other bodies of law, i.e. international human rights law and peremptory norms of international law.

State Immunity, State Atrocities, and Civil Justice in the Modern Era of International Law

2008 ◽  
Vol 45 ◽  
pp. 223-270
Author(s):  
Chile Eboe-Osuji
Keyword(s):  
Human Rights ◽  
International Law ◽  
National Court ◽  
Commercial Activities ◽  
State Immunity ◽  
European Court ◽  
House Of Lords ◽  
Peremptory Norm ◽  
The Face ◽  
Jus Cogens

SummaryThe exercise of civil jurisdiction by a national court over a foreign sovereign has been a perennial source of controversy in international relations. It resulted in the development of the doctrine of state immunity, founded on the notion of the comity of nations. The doctrine at some point was considered an absolute rule. With time, exceptions to the rule were accepted, notably in the area of commercial activities. In recent times, there has been a movement to recognize a further exception involving violation of jus cogens norms in order to limit the tendency of certain state agents to engage in gross violations of human rights and humanitarian norms. Yet this movement has encountered strong resistance. The resistance is apparent in three decisions rendered respectively by the European Court of Human Rights, the Ontario Court of Appeal, and the British House of Lords. In this article, it is contended first that the resistance noted in these cases is largely founded on fundamental misconceptions. It is further contended that the comity of nations is no longer sustainable as a rational basis for the doctrine of state immunity, especially in the face of jus cogens as a peremptory norm of international law.

UN Convention on State Immunity: the Need for a Human Rights Protocol

2006 ◽  
Vol 55 (2) ◽  
pp. 411-426 ◽  
Author(s):  
Christopher Keith Hall
Keyword(s):  
Human Rights ◽  
Government Officials ◽  
National Courts ◽  
State Immunity ◽  
The United Kingdom ◽  
House Of Lords ◽  
Foreign Government ◽  
Civil Suit ◽  
The Uk ◽  
The Right

The United Kingdom (UK) signed the UN Convention on Jurisdictional Immunities of States and their property (Convention) less than a year after it was adopted by the UN General Assembly.1 The signature came only a few months after an open, but not well publicized, consultation with academics and society,2 and several months before a crucial appeal, in which the Secretary of State for Constitutional Affairs is a party, is heard by the House of Lords of a decision permitting a civil suit to proceed against foreign government officials for torture committed abroad.3 Despite the signature, the UK has not yet announced whether it will ratify the Convention and, if so, whether it intends to do so with an understanding, declaration or reservation.4 As discussed below, it appears that the Convention might preclude victims of genocide, crimes against humanity, war crimes, torture and other crimes under international law, as well as other human rights violations, committed abroad from recovering civil reparations in UK courts against states or their current of former officials or agents. In the light of the numerous ambiguities in the Convention and the risk that it will be interpreted by national courts as barring such reparations in those courts, the UK should not ratify it until a protocol is adopted expressly guaranteeing victims and their families the right to recover reparations in such cases.

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