Balancing State Sovereignty and Human Rights

Are There Exception in International Law to the Immunity Rules for State Officials?

Abstract

To what extent are state officials held accountable for their actions? This essay will examine a specific aspect of this question, namely whether there is an exception to the general rule that the Head of State, Head of Government and Foreign Minister are immune from prosecution in another country’s national courts for serious international crimes. It will begin with a brief review of the relevant treaty provisions relating to immunity of state officials. Second, it will examine some pre-Arrest Warrant case law specifically on the issue of potential exceptions to the immunity rule for state officials. Third, it will review the Arrest Warrant Case, an ICJ decision that halted this trend and discuss some of the issues left unresolved by the decision. Fourth, it will review the ICJ’s discussion of immunity post-Arrest Warrant in Djibouti v. France. Finally, it will explore the concept of jus cogens and whether this could help reconcile the competing interests (state sovereignty and accountability for serious international crimes) at play in this issue. This essay will conclude that while the jus cogens nature of serious international crimes does not equate to an automatic carte blanche for removing immunity, it does strongly support the developing norm of limited exceptions to the general rule of immunity.