Immunity Privileges of Official Individuals

Individual and State are not always in opposite sides to each other. Individual can also have immunity privileges when the matter is about heads of state, ministers of foreign affairs, and etc. (further- official individuals)

It is decided here to present without going into details the same main points like in the first chapter such as measure of immunity privileges of official individuals in private international law in comparison with public international law and exceptions of immunity privileges of official individuals.

2.1. Overview of immunity privileges of official individuals

Historically, heads of state along with states were absolutely immune for committed acts before organs of foreign states. However, with appearance of restrictive doctrine of state immunity it was raised the question whether heads of state would follow to the restrictive doctrine of state immunity or international community would preserve more immunity privileges for heads of state.

As result it was formed two legal doctrines. One legal doctrine holds that heads of state are absolutely immune for public and private acts [1] ; second one holds that heads of state shall be immune in public, not private acts. [2] It should be clarified here that public acts covers official acts of heads of state, which relate to his duties on post. And logically private acts are all acts not covered with his duties on post and committed for personal benefits. [3] In author’s view it follows some difference in interpretation of such categories as public and private acts in immunity privileges of state and head of state. As we remember, state in contrast to official individual cannot commit any act without pursuing as own benefit as realization of its official functions and tasks. Thus, in my view, categories of public and private acts for state and head of state have slightly different content in the course of different status of state as organization and head of state as individual in international law.

The uncertainty in measure of immunity privileges of heads of state was solved by recent court practice. In 2000 Congo submitted claim before ICJ concerning an international arrest warrant issued by Brussels Tribunal Court against the Minister for Foreign Affairs of Congo, Mr. Yerodia. In Belgium’s arrest warrant it was demanded the extradition of Minister for Foreign Affairs of Congo for “serious violations of international humanitarian law”. [4] On the basis of elaboration of international law the ICJ stated that: “it is firmly established that, as also diplomatic and consular agents, certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal”. [5]

Further ICJ marked in this case the only exceptions to immunity privileges of official individuals. These exceptions are 1) “head of state is not immune under international law from process in his own country; 2) likewise, a head of state’s home country may waive his immunity in foreign courts; 3) a former head of state is not immune for acts committed before or after his period in office or for private acts (including international crimes) committed while in office; and 4) a head of state enjoys no immunity when that immunity has been validly abrogated by an international tribunal”. [6]

It shall be noticed here that despite this case related to criminal jurisdiction, ICJ considered necessary to cover civil cases as well. In my view, by this decision ICJ brought clarity in such question whether individuals could bring the civil claim against state officials besides criminal actions.

Moreover, it makes the author of thesis think that in comparison with immunity privileges of states, the measure of immunity privileges (exceptions) of official individuals will be the same regardless of the type of case, whether it is civil or criminal case.

To sum up the judgment of ICJ it could be noticed that ICJ found golden middle between two legal doctrines on immunity privileges of head of state, one of which for absolute immunity privileges, another one for restrictive immunity privileges. And in this judgment could be seen both doctrines. Thus, according to the judgment “sitting” head of states, ministers for foreign affairs enjoy absolute immunity privileges. However, as soon as head of states becomes “former” head of state, he deprives head of state’s absolute immunity privileges and can be responsible for acts committed before or after period in office and private acts committed in office including international crimes. [7]

It could be seen that ICJ considered the absolute immunity as necessary indispensable instrument for conducting foreign affairs. Absolute immunity allows to head of state to realize his official duties including traveling to foreign states without any fear of being arrested or sued before foreign courts. [8] Without such guarantee as absolute immunity heads of state would prefer just to stay at their states and not to be engaged in international diplomacy abroad. [9] As an example could be remembered the intention of Belgium to bring Ariel Sharon to trial. After such publicly entertained idea of Belgium, the Israeli Prime Minister could not visit European organizations in Brussels and it was prepared by Israeli advisors the list of states, which exercise universal jurisdiction. [10]

Moreover, as in case of state immunity, in immunity of heads of state it is also quite possible to use civil or criminal suits just with pure political aims against “unpopular” leaders. [11]

As for former head of states, there could not be seen any necessity to grant them the same absolute immunity privileges for committed private acts in the period of office. Serious abuses like international violation of human rights cannot fall within the scope of official duties of head of states. [12] Seeking accountability for private acts of former head of states does not infringe on state’s sovereignty. Even if there would be certain infringement of state sovereignty, this infringement could not be compared with that harm caused by infringement of fundamental human rights. [13] Furthermore, accountability of former head of states for committed private acts in the period of office does not interfere with state aim of promoting diplomatic relations. Current head of states and other diplomats will travel to foreign states and international relations between states will not unduly spoiled. [14]

The subsequent practice of national courts reflected the judgment of ICJ in Congo vs. Belgium case. One of such recent cases could be considered the case against President of Zimbabwe, Robert Mugabe. In 2004 the citizens of Zimbabwe brought the private application for extradition of President of Zimbabwe before UK Court. [15] The sitting President was accused in organized assassinations, torture and other acts committed by him in order to quash his opposition. [16] The Court stated that: “Whilst international law evolves over a period of time, international customary law, which is embodied in our Common Law, currently provides absolute immunity to any Head of State”. [17]

However, the citizens of Zimbabwe were not reconciled with decision of UK court and brought the civil claim before US court for serious human rights violations prohibited by such acts as Alien Tort Claims Act, the Torture Victim Protection Act and international norms. [18] In 2004 the Court of Appeals of USA refused to establish jurisdiction stating that President was entitled to absolute immunity on the basis of Convention on Privileges and Immunities of the United Nations and the Vienna Convention on Diplomatic Relations. [19]

Besides head of states, there is also another category of official individuals such as diplomatic agents. Immunity privileges of diplomatic agents are regulated in above-mentioned Vienna Convention on diplomatic relations (1961). Under Article 31 of Vienna Convention diplomatic agents are immune from civil jurisdiction, except the following cases:

1)“A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

2) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;

3) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions”.

The analysis of Vienna Convention shows also that besides these three exceptions, immunity of diplomatic agent can be waived by desire of sending state, because the immunity belongs to state, not to the diplomat.

To sum up the immunity privileges of official individuals it could be said that on the basis of elaborated court practice there is no significant differences in immunity privileges (exceptions) of official individuals as in civil as in criminal cases. And also despite official individual and state play in one team in question of immunity privileges, the measure of their immunity privileges (exceptions) is different.

Conclusion

In this master thesis the author tried to consider the broad and controversial relationships between individual and state in the matters of immunity privileges in private international law. In the first view it can be supposed that relationships between Individual and State in the matters of immunity privileges can be based only on opposition to each other, notably when Individual claims against immune State. However, it was shown in thesis that Individual and State in matters of immunity privileges can be interrelated between each other when it comes to official individuals: heads of state, ministers for foreign affairs. In other words, immunity of official individuals is conditioned by states themselves.

Though, the author of thesis chose as the main part of thesis the first type of relationships when Individual claim against State. This choice was caused with desire of author to help somehow to individual as the weakest part in relationships “Individual versus State” without forgetting the interests of State behind which the millions of citizens as well. Thus, after consideration by author in the role of “independent arbiter” the numerous cases “Individual versus State” it was made the following conclusions.

Individuals had never reconciled with absence of justice when their rights were broken by state. The first significant achievement of individuals was the replacement of absolute doctrine of state immunity by restrictive one. Originally the restrictive doctrine supposed that state would be liable for wrongs committed during its commercial activity. Adoption and application of nature-test instead of dominated previously purpose-test allowed to broad the scope of acts covered by commercial exception. Elaboration of nature-test by judges could be considered as their realization of infringements of individual’s rights. However, the makers of justice could not make more for individuals as they had obstacles such as bounding legal frameworks of legislative acts.

After that the restrictive doctrine was broaden with tortious exception. Some torts (death, physical injury) constitute the violations of fundamental human rights. However, individuals shall show the territorial nexus between forum state and damage in order to invoke this exception. The same requirement is provided in international conventions on state immunity as well. But nobody can deny that there is a breach of fundamental human rights, which cannot be protected because of immunity privileges of states. Both fundamental human rights (jus cogens) and state immunity (international rule) are obligatory international principles for all courts. That is why the golden middle should be found between these two international rules because judgments in favor of states cannot be justified under pressure of individuals anymore.

In order to find this golden middle could be used Prof. J. Brohmer’s test. The meaning of this test is included in possibility to deny the state immunity in favor of human rights of individuals on condition that state ability to function as state is not deprived.

Three elements are necessary to justify the denial of state immunity. The first element is “option”. “Option” means that state is free in choice of participation or not participation in commercial activity. In case of making choice for commercial activity state must be liable for possible risks of its acts. The next element is “risk calculability”. “Risk calculability” means ability of state to adapt its actions in proper way. This ability follows from state’s opportunity to estimate and control its possible risks. And the last element is “preservation of international peace of justice” which activated only in case of unacceptable liability of state. [20]

All violations of human rights in the framework of this test can be divided on “individualized” and “community of individuals”. In “individualized” violations or violations against concrete individual the state has such option as to act against individual or desist from committing action; state has full control under its actions and possible risks; and at last the denial of immunity will not deprive the state’s ability to function as state (organization).

Violations of human rights against “community of individuals” (people, nation) constitute war crimes, genocide. In this case it is impossible for states to calculate their liability risks. And if state had been deprived of its immunity, then it would become obvious that after numerous claims of victims state would loose its ability to function as state. It would not be able to take responsibility for all its actions in violation human rights against “community of individuals”. [21] It means that the international peace of justice stated as the third element of test for justification of state immunity will be not preserved.

In my view it could be also made analogy of Prof. J.Brohmer’s test with the elaborated by ECJ test in justification of restrictions of fundamental freedoms in EU. In other words it is offered by author just to evaluate and compare the interests at issue. For example, ECJ had such cases [22] when at issue were fundamental freedoms on the one hand (which are the core idea of EU and also in some way the significant element for the full functioning of EU) and human rights on the other hand. In these cases ECJ tried to evaluate all interests of both parties of the dispute. More precisely ECJ decided whether the measure for restriction of fundamental freedoms was necessary, suitable and proportionate for promotion of state’s public interest (one type of public interest were human rights) and whether state had other less restrictive measure to reach that public interest. In general all these actions of ECJ combined in the so-called “proportionality” test.

It is thought by author that the question of state immunity is still under broad discussion, because everybody understands that state is wrong in “individualized” situations and why the interest of state should prevail under the interests of individual. Over long period of time, the simple answer to this question was just “state sovereignty”. But after above mentioned tests it could be seen that state sovereignty is not under big threat in “individualized” cases anymore. Furthermore, denial of state immunity in these cases will promote “minimum level of protection of human rights”, “minimum level of social welfare”, peace and security.

In cases against of “community of individuals” it could be seen that the interests of state would be more valuable than the interests of “community of individuals”. State could not be financially able to pay for all damages committed to numerous individuals, i.e. in wartime, and as result state would be ceased to exist. The cessation of independent activity of state in international arena would make more harm for state’s citizens and even for other states, which could have business relationships with that state in general.

In author’s view in the long dispute the answer to the question whether fundamental human rights shall prevail under state sovereignty will be given finally by judgment of ICJ in case Germany versus Italy. To sum up, the judgment of ICJ in favor of Italian judgments could give to individuals new tools to take the shield of state immunity in torts and support my argument as follows.

Firstly, such international rules as fundamental human rights (jus cogens) and state sovereignty conditioned each other’s application. Thus, this statement made me thinks that not only fundamental human rights could prevail under state sovereignty but also, on contrary, state sovereignty under fundamental human rights. The rationale between these two obligatory rules could be found by evaluation of interests at issue individually for each case.

Secondly, recognition of universal jurisdiction in civil cases could eliminate such obstacle for individuals as strict territorial nexus between forum state and damage. However, there is still not all states recognized the principle of universal jurisdiction in their legal systems.

Thirdly, approval by ICJ of Italian justification in consideration of international violation by domestic court after relying on international customary law as on part of national law could solve the problem of non-competence of domestic courts to consider cases with international violations. In accordance with Article 10 of Italian Constitution the international customary law is the part of Italian law. In case of positive decision of ICJ it would be possible to apply the same idea in common law states as well. Common law states do not need to fulfill any special procedures in order international law could become the part of their national law.

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