scholarly journals Diplomats or Defendants? Defining the Future of Head-of-State Immunity

2002 ◽  
Vol 52 (3) ◽  
pp. 651 ◽  
Author(s):  
Michael A. Tunks
Keyword(s):  
State Immunity ◽  
Head Of State ◽  
The Future

I. The Future of Former Head of State Immunity after ex Parte Pinochet

1999 ◽  
Vol 48 (4) ◽  
pp. 937-949 ◽  
Author(s):  
Colin Warbrick ◽  
Dominic McGoldrick ◽  
J. Craig Barker
Keyword(s):  
United Kingdom ◽  
Wide Spectrum ◽  
Prima Facie ◽  
Considerable Reduction ◽  
State Immunity ◽  
The United Kingdom ◽  
Initial Impression ◽  
Head Of State ◽  
House Of Lords ◽  
The Future

While lacking the raw excitement of the live “penalty shoot-out” that was the announcement of the decision of the House of Lords in Reg. v. Bow Street Magistrate, ex parte Pinochet,1 the initial impression of the decision in Reg. v. Bow Street Magistrate, ex parte Pinochet (No. 3)2 was of a solid majority support for the position that Pinochet was not entitled to immunity in the United Kingdom in respect of the criminal acts he is alleged to have committed. Even as Lord Browne-Wilkinson attempted to explain the intricacies of the decision, the matter of immunity appeared settled and of secondary consideration to the “new” requirement of double criminality which alone, it seemed, had resulted in the considerable reduction in the list of crimes for which Pinochet could be extradited to Spain. Closer examination of the reasoning of their Lordships, however, quickly dispels that impression and reveals a range of opinions across a wide spectrum. What agreement there was between their Lordships on the matter of Pinochet's immunity from jurisdiction is diverse and often contradictory. In particular, the Lordships who formed the majority were equally divided on the question as to whether Pinochet was acting within his official capacity when carrying out the acts of which he is accused. Given that immunity rationae materiae appears to be available only in respect of official acts, it is difficult to see how the six could have agreed on the fact that Pinochet was not entitled to such immunity. Indeed, given the fact that Lord Goff (dissenting) was of the opinion that the alleged acts were performed in the course of Pinochet's functions as head of state, there was in fact a majority in favour of the prima facie existence of immunity rationae materiae.

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.

Understanding Diplomatic and Consular Inviolability—Learning from the Jamal Khashoggi Tragedy

2021 ◽  
Vol 54 (1) ◽  
Author(s):  
Shannon Bosch
Keyword(s):  
International Law ◽  
State Responsibility ◽  
Legal Research ◽  
State Immunity ◽  
Head Of State ◽  
Growing Body

The tragic killing of Jamal Khashoggi in the Saudi Consulate in Turkey has once again exposed the potential for abuse of privileges afforded diplomatic and consular missions. This incident, which involves torture and murder, occurred at a time when there was, and still is, a growing body of international jurisprudence that demands accountability for breaches of international law. These trends have seen a dilution in head-of-state immunity and increased calls for state responsibility in such instances. Understanding and interpreting the 1961 Vienna Conventions on consular and diplomatic inviolability, in light of these trends, will help to retain their relevance, foster growing accountability, and prevent breaches of international law. This is a piece of doctrinal legal research.

Part II Institutions and Constitutional Change, A The Crown and the Executive, Ch.6 The Crown in Canada

2017 ◽  
Author(s):  
Firmini Marcella ◽  
Smith Jennifer
Keyword(s):  
Constitutional Change ◽  
Executive Authority ◽  
Head Of State ◽  
The Future ◽  
Constitutional Monarchy

In Canada, the monarch is habitually, albeit erroneously, considered a figurehead in the nation’s system of government. In fact, in a constitutional monarchy, Her Majesty Queen Elizabeth II’s capacity as head of state means that her position is substantive, not merely superficial. Certainly, the Constitution affirms that all executive authority is vested in her. Therefore, it is important to realize the scope and substance of the sovereign’s authority which is often underappreciated. We trace the development of the Crown in Canada, in particular the changes the institution experienced as the country progressed from remote colonial outpost to independent nation. Most importantly, we assess the Crown’s institutional function by explaining the statutory, prerogative, and reserve powers, and conclude with some reflections on the future of the institution in Canada.

Book III Privileges and Immunities, 12 Privileges and Immunities of the State, The Head of State, State Officials, and State Agencies

2016 ◽  
Author(s):  
Fox Hazel
Keyword(s):  
International Law ◽  
The State ◽  
Legal Person ◽  
State Agencies ◽  
General Description ◽  
Customary International Law ◽  
State Immunity ◽  
Head Of State ◽  
Written Form ◽  
The Law

This chapter provides an account of the immunities of the State, its officials, and state agencies in international law. It first offers a general description of the plea of state immunity and a brief historical account of the development of the law of state immunity. Then it briefly sets out the law relating to the immunities of the State itself as a legal person, followed by the law applicable to its officials and to state agencies. In addition an account based on customary international law will be provided on the immunities of senior state officials. The chapter concludes by taking note of the extent to which the practice of diplomatic missions at the present time accords with requirements of state immunity law as now set out in written form in the 2004 UN Convention on the Jurisdictional Immunities of States and their Property.

Are Emirate Rulers Immune from Civil Suits in English Courts?

2013 ◽  
Vol 27 (2) ◽  
pp. 97-124
Author(s):  
Lucas Bastin
Keyword(s):  
International Law ◽  
Federal Government ◽  
United Arab Emirates ◽  
Abu Dhabi ◽  
State Immunity ◽  
Head Of State ◽  
Political Roles

Abstract This article considers whether the rulers of the seven United Arab Emirates are immune from civil suits before English courts. It commences by summarising the constitutional structure of the UAE and political roles which the Emirate rulers play within its federal government, before setting out the relevant English and international law of State and head of State immunity. Having explained this background, this article assesses the position of each ruler and concludes that the rulers of Abu Dhabi and Dubai are immune from civil suits before English courts but that the rulers of Sharjah, Ra’s al-Khaimah, Fujairah, Umm al-Qaiwain and Ajman are less likely to attract immunity.

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.

The ICC's Al Bashir jurisprudence over the last decade: enforcer of the will of States Parties or of a global jus puniendi?

2021 ◽  
Vol 10 (1) ◽  
pp. 54-72
Author(s):  
Florian Held
Keyword(s):  
Rome Statute ◽  
Case Law ◽  
Criminal Court ◽  
International Courts ◽  
The Past ◽  
State Immunity ◽  
Head Of State ◽  
International Court ◽  
The Will ◽  
Independent Existence

Over the course of the past decade, the question of whether States Parties to the International Criminal Court (ICC) could rely on Al Bashir's Head of State immunity when refusing to execute the Court's arrest warrants has occupied the Court through five different cases, finally reaching an Appeals Chamber decision in May 2019. Although Al Bashir has been deposed from power and the controversy around the case has diminished, there are still valuable lessons to be learned from the case law produced. This article poses the question of what kind of court the ICC really is: is it merely enforcing the will of its States Parties or does it develop an independent existence following its own agenda? In the process, the article will shine a light on how the Appeals Chamber is moving the ICC towards a path of judicial independence: it is willing to stretch the limits of the Rome Statute and to possibly disregard the interests of its States Parties. By pronouncing on the absence of a customary rule of Head of State immunity before international courts, the Appeals Chamber aims to broaden the ICC's jurisdiction and to sharpen its profile as an international court acting on behalf of the international community and enforcing a global jus puniendi. Examining the decade of Al Bashir jurisprudence, it becomes clear where these findings originate and why they were by no means unavoidable. Finally, the article will indicate how the distilled features of the Court's character might be put to the test – or how the result of a decade of case law will silently evaporate.

Sign in / Sign up

Export Citation Format

Share Document