Is Immunity to Prevail over Human Rights - Assignment Example

 Is Immunity to Prevail over Human Rights’? Perhaps the starting point in addressing the issue of immunity is to try to understand the technical direction of the immunity. In the quaint language of the earlier English cases, a sovereign is not to be brought into litigation in the courts of another sovereign for what ever reason except by consent. This meant complete exemption, but in recent times the immunity has come to be limited to matters involving sovereign acts. It must be stressed that there is very little room for immunity for individuals indulging themselves in genocide, murder or any breaches of the criminal law. The Immunity referred to is largely directed at civil litigation. The Genocide Convention of 1948 confirms that criminals involved with genocide any where in the world would face the international court without the protection of a single human rights legislation. The convention brought about the international court to specifically prosecute crimes against humanity. “The statute calls for the establishment of a permanent international criminal court with power to investigate and bring to justice individuals who commit the most serious crimes of international concern, including genocide, crimes against humanity and war crimes.”1 It is however, worth noting that, there is a persistent tension in the case law between the profile of state immunity and the principles of human rights. The European court of human rights has determined that the principles of state immunity under international law are compatible with the right of access to court by virtue of Article 6(1) of the European convention on human rights. The court has adopted the position that the grant of state immunity in civil proceedings pursued the legitimate aim of complying with international law in order to promote comity and good relations between the states. The English courts have adopted the same approach, also in the context of civil claims. In Jones v Soudi Arabia,2 the House of Lords, in a case involving claims of torture by officials of the Kingdom of Soudi Arabia, relied upon various sources, including the Al-Adsani decision by the Grand chamber of the European court with respect to the United Nations convention provisions. Lord Bingham stated:” Thirdly, the UN Immunity convention of 2004 provides no exception from immunity where civil claims are made based on acts of torture. The working Group in its 1999 Report makes plain that such an exception was considered, but no such exception was agreed. Despite its embryonic status, this convention is the most authoritative statement available on the current international understanding of the limits of state immunity in civil cases….”3 It must be further said that a problem which has faced the international court, and various national courts, is the relationship between the immunity of Heads of state any government minister from criminal jurisdiction in respect of conduct during their periods of office and the concept of international crimes having the character of jus cogens. In its judgment in the arrest warrant case, Democratic Republic of Congo v Belgium4, the International court, dealing with the status of an incumbent minister for foreigh Affairs drew the following conclusions: “53. In customary International law, the immunities accorded to ministers for foreign Affairs are not granted for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective states. In order to determine the extent of these immunities, the court must therefore first consider the nature of the functions exercised by a minister for foreign Affairs…” The court concluded that the functions of a minister for foreign Affairs are such that, throughout the duration of his or her office, he or she when abroad enjoys full immunity from criminal jurisdiction and inviolability. That immunity and that inviolability protect the individual concerned against any act of authority of another state which would hinder him or her in the performance of his or her duties. In Al-Adsani v United Kingdom5, the decision involved upholding such immunity even in respect of alleged crimes under international law, namely, war crimes against humanity. The European court of human rights has also maintained the application of the principle of immunity in cases based upon the European convention. It should be noted that certain municipal courts have challenged the validity of the principle of immunity in cases involving charges on international crimes. In the Pinochet case, the House of Lords, in the second appeal dealt with charges of torture brought against a former Head of state of Chile by the Spanish Government. Several law Lords in the second appeal stated that the standard of whether torture was lawful or not was set by international law, not by domestic law, and for that reason torture cannot constitute acts committed in performance of the official function of a Head of state. It should noted that the state immunity Act 1978 governs all matters of immunity under the UK law within the meaning of the international law. “This part of this Act does not apply to criminal proceedings.”6 In the Bosnia & Herzegovina v Yugoslavia a (Genocide case), the international court adopted the view that territorial restriction do not apply to rights and obligations which are e-ga omnes. The court stated:” The origins of the convention show that it was the intention of the United Nations to condemn and punish genocide as a crime under international law involving a denial of the right of existence of entire groups, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the United Nations under Resolution 96(1)of the General Assembly, 1946. The court noted that the obligation each state thus has to prevent and punish the crime of genocide is not territorially limited or protected by human rights by the convention. Furthermore, following the development of the armed conflict in Yugoslavia in 1991, the security council decided to create a tribunal to deal with those responsible for breaches of international humanitarian law. These were breaches to security council Resolution 808 which was adopted on 22nd February 1993. The creation of the tribunal is a clear indication that individual perpetrators of genocide or war crimes cannot expect to seek immunity from prosecution under the name of human rights. The whole issue of individual criminal responsibility is dealt with comprehensively in Article 7 of the statute. “A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Article 2 to 5 of the present statute shall individually responsible for the crime.”7 Article 7(1-4) provisions reflect generally accepted principles governing individual responsibility but with the qualification that the denial of immunity is controversial. It is also worth pointing out that the international criminal tribunal for Rwanda(ICTR) was established to deal with the perpetrators of genocide by virtue of security council Resolution 955, 1994. “The international tribunal for Rwanda shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of neighbouring states, between 1 January 1994 and 31 December 1994, in accordance with the provisions of the present statute.”8 As to whether immunity has to prevail over human rights, the answer seems unlikely in so far as crimes against humanity or genocide or war crimes are concerned under the international law. According to Article I of the charter, the purpose of the organization is to promote and encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion. That is not to say murders involved in genocide or war crimes should go un punished in the name of human rights. In conclusion, it may be submitted that while rights come first at the UN,an individual or the state claiming immunity on the crimes against humanity or genocide or indeed, war crimes, cannot expect to escape punishment in the name of human rights. Bibliography Brownlie, I(2008),Principles of Public International law,7th ed,OUP, Oxford Than, C &, Shorts, E(2003), International criminal law, & Human rights, 1st ed, Sweet & Maxwell, London Gardiner, R, R(2003), International law,1st ed, pearson, London Fasulo, L(2004), An insider’s Guide to the UN, Yale University United Nations(2008), Basic Facts about the United Nations, UN, New York Statutes International Human rights Act 1998 Convention on the Prevention and punishment of the crime of Genocide 1948 Convention against torture and other cruel, Inhuman or Degrading Treatment or punishment 1984 Geneva Convention 1949 State immunity Act 1978 Read More