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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

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