Skip to main content

Diplomatic immunity and head of states


The lack of imputation of criminal responsibility itself cannot preclude the development of international criminal responsibility. Nor in any sense it is accepted for a head of state to commit  any act in his personal capacity for personal gain or/and, as per orders received by the sending state, which leads to crime. Parallel to other perpetrators, head of states also liable under the international criminal responsibility without any defence when they face any tribunals of war against humanity.[1]
For example, In the Rainbow Warrior case, it was concluded that if an action performed by a diplomatic agent in a functional capacity; and at the same time is a serious crime which breaches both, the receiving state’s national laws and the public international law. Then the diplomatic agent can be held personally liable for the actions regardless of whether they were ordered to do so by his sovereign state.[2]

The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.[3]

In considering, whether any exception exists to immunity for head of states, serving or former? There are two approaches in international law adopted by national courts to proceed. The first denies any exception to immunity against any serving or former head of state in proceeding brought before a national court, except for the acts done in his personal capacity. Whereas, the second is such of kind, which grants immunity in order to accommodate the development of general international law.[4]

In general, an official status is no defence to the commission of an international crime; that is a well-established rule. However, still there is confusion when we compare the Vienna Convention on Diplomatic Relations and the current international treaties.  Such as, what nature of acts in criminal capacity to be charged against the diplomat or head of state, and which of those to be considered to be waived off because of immunity they enjoy?



[1] Hazel Fox QC, The Law Of State Immunity (2nd edn, OUP 2008) 686-694
[2] Rainbow Warrior Case, Ruling of the UN Secretary-General, 6th July 1986 in RIAA, XIX 197-221 
[3] Article 7 of International Military Tribunal of Nuremberg
<http://avalon.law.yale.edu/imt/imtconst.asp#art7>; similar approach is taken by legislatures in Article 7(2) of International Criminal Tribunal for the former Yugoslavia <http://www.icls.de/dokumente/icty_statut.pdf> and Article 6(2) of International Criminal Tribunal for Rwanda  <http://www.ohchr.org/EN/ProfessionalInterest/Pages/StatuteInternationalCriminalTribunalForRwanda.aspx> all accessed 25 March 2015
[4] Fox (n1) 695

Comments

Post a Comment

Popular posts from this blog

Oman's oil deficit - need to diversify

The Sultanate of Oman shares borders with Saudi Arabia, United Arab Emirates and Yemen; the country also shares marine borders with Iran and Pakistan. Geographically, it is held on the mouth of Persian Gulf; besides, the Sultanate is also the second largest territory in the Arabian Peninsula. Thus, its physical location and peaceful political situation attract to invest in Oman and offer a convenient place to enhance trade and business relations. It contrast to the excellent opportunities in trade and business. Oman is an oil rich monarchy, which heavy rely on its hydrocarbon resources, mainly oil and gas. Historically, the first ever oil discovery was made in 1956. Later, the first commercial oil discovery was achieved in 1962 and thus, the first ever export of oil cargo was made in 1967. It was accounted that by 2009, in Oman there were more than 135 oil producing fields, which rapidly reached the mark of 162 by 2013. According to the Ministry of Finance, Oman, in the year of 20...
Post a Comment
Read more

The six major non-corporate cases of 'Bankruptcy tourism' in the UK

 1.  Skjevesland v Geveran Trading Co Ltd (No.4) [2002] EWHC 2898 (Ch) The case was about a Swiss banker,  (1)  who had ordinary residence in the UK, because he resided there for 92 days a year; (2)  he had a flat in London to satisfy the fact that he had a place of residence in the UK;  (3) however, his 90% of the economic interests were in Switzerland.  It was held that his ‘Centre of main interest’ (COMI) is outside EU, and the Regulation was not applicable. 2. Staubitz-Schreiber, Re  (C-1/04) [2006] ECR I-701 It was upheld by the European Court of Justice that the COMI to be determined at the time when the debtor lodges a petition for insolvency proceedings and not after that. Therefore, once jurisdiction is established, it is unlikely for a debtors to change COMI.  3. Stojevic v Official Receiver [2007] BPIR 141 It was held that the principle COMI of a natural person is the place where he has his habitual resid...
Post a Comment
Read more

Bankruptcy Tourism & UK

The term ‘bankruptcy’, defined as a procedure by which debtors obtain financial relief and undergo a judicially supervised liquidation of the debtor's assets for the benefit of creditors. It is also known as a state of a person who has been adjudged by a court to be insolvent. Then the court orders the compulsory administration of a bankrupt’s affair so that his assets can be fairly distributed among his creditors. Whereas, the term ‘Bankruptcy Tourism’ refers to a process by which both, corporation and individuals (more oftenly foreign) publicize their insolvency in the jurisdiction of their choice. [1] Alternatively, the terminology is also known as ‘forum shopping’. [2] The law of insolvency varies country wise. Because of that the debtors wish to choose the place of their choice to declare their bankruptcy aiming to take advantage of the most lenient law of insolvency. By doing so they abuse the legal system of that country and get rid of the creditors.    In par...
1 comment
Read more