The Practical Guide to Humanitarian Law

« Calling things by the wrong name adds to the affliction of the world. » Albert Camus.

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Immunity

Immunity is a legal privilege attributed to certain persons (State officials) and recognized by national and international law which enables them to exercise their functions free from outside constraints or pressures, including legal ones. At the international level, immunity is a tool that protects the sovereignty and independence of States by preventing them or their agents from being prosecuted before foreign courts. Individuals entitled to immunity from jurisdiction can thus avoid legal pursuit before national or international courts. This immunity exists mainly for diplomats, United Nations personnel, and parliamentarians, as well as government members and heads of State or of government. Immunity has been laid down in customary international law and several international conventions.

Immunity is never absolute and is generally restricted to acts committed in the exercise of official functions, during the time the person holds that official position. It is generally accepted that there are two types of immunities (under both national and international law):

  1. Functional immunities, attached to the function—that is, which cover certain activities performed by various State officials, and which survive the end of office.
  2. Personal immunities, attached to the persons because of their stature—which cover all acts performed by those who benefit from the immunity and last while the persons concerned remain in office. Immunity may be lifted in the case of grave violations by the political or legal entities that control the various official functions.

Immunity cannot be claimed in the case of prosecutions before the International Criminal Court, in virtue of specific provisions of its Statute (Art. 27.2 of the ICC Statute). However, immunity of jurisdiction for the State and its agents concerning prosecutions before foreign courts remains an absolute principle in customary international law. This principle was recognized in several decisions by the International Court of Justice. The ICJ recalled that this immunity could not be assimilated to impunity because immunity was a procedural guarantee limited in time. Immunity can postpone the application of criminal responsibility, but it does not erase it (infra Jurisprudence).

The responsibility of the State for illicit behavior is different from criminal responsibility and can be engaged before the International Court of Justice and some regional courts.

Contrary to some misconceptions, members of humanitarian organizations and relief personnel do not benefit as such from any form of immunity in the strict sense. The phrase humanitarian immunity refers to the prohibition of deliberate attacks in times of conflict on civilians and relief and medical personnel provided by international humanitarian law. Deliberate attacks on such personnel may constitute a war crime, punishable under international or national law. However, international tribunals have granted to humanitarian personnel a partial immunity of cooperation in criminal proceedings. They have accepted a limit to the duty of witnessing in order to protect the security of humanitarian personnel in areas of conflict and the ability of relief organizations to maintain assistance in situation of armed violence (infra Jurisprudence). This immunity was officially recognized to the International Committee of the Red Cross and to professions covered by professional secrecy in Rule 73 of the Rules of Procedure and Evidence of the International Criminal Court.

International Criminal CourtWar crimes/Crimes againsthumanity

The Excuse of Official Functions

There are no international treaties that specifically establish immunity for heads of State and government. At an international level, the immunity of heads of State is the result of custom and is similar to diplomatic immunity. By definition, this custom is always susceptible to amendments, as proved in 1999 by various judgments rendered by the British and Spanish judicial authorities in the case of the former president of Chile, Augusto Pinochet; the indictment of the Yugoslav head of State, Slobodan Milosevic, by the International Criminal Tribunal for the Former Yugoslavia; or the indictment of the former Liberian head of State, Charles Taylor, by the Special Court for Sierra Leone in May 2004.

On the other hand, the national laws of each State often clearly establish systems regulating immunities and criminal responsibilities of heads of State (generally in the constitution). However, these national provisions cannot take precedent over international law; therefore, they cannot shield such individuals from international legal procedures initiated against them in cases limited to the most serious crimes of international law, such as crimes against humanity, genocide, war crimes, and torture.

In fact, in the case of such grave crimes, international law expressly establishes that no immunity can be invoked to shield an individual from justice.

Article 27 of the Statute of the International Criminal Court (which has jurisdiction over individuals accused of war crimes, crimes against humanity, and genocide) stipulates that the Court has jurisdiction over “all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.”

This article confirms the principles previously set forth in the jurisprudence of the Nuremberg Tribunal and the International Criminal Tribunals for the Former Yugoslavia and Rwanda, thus giving them a permanent and mandatory legal status. It also confirms the provisions already foreseen in several specific conventions—namely:

  • the Geneva Conventions’ provisions concerning perpetrators of grave violations of humanitarian law;
  • the Genocide Convention’s provisions concerning the perpetrators of crimes of genocide;
  • the Torture Convention’s provisions concerning the punishment of this specific crime.

With regard to armed conflicts, international humanitarian law takes into consideration the fact that it would be incoherent to engage the responsibility of individuals if their hierarchical superiors and others exercising their official functions were exonerated. International humanitarian law thus emphasizes the individual criminal responsibility of hierarchical superiors in cases of war crimes, unless they can prove that they did not give the order or that they took all feasible measures to prevent or stop the violations. Humanitarian law thus sets forth the duty to disobey unjust orders.

A very controversial decision of the International Court of Justice ( Democratic Republic of Congo v. Belgium , 14 February 2002) ruled that an incumbent minister of foreign affairs, when abroad, enjoys full immunity from criminal jurisdiction and inviolability, according to customary international law. He may not be arrested, criminally prosecuted, or detained by domestic foreign courts as long as he or she is in office. This rule applies regardless of whether the minister of foreign affairs is, at the time of arrest, present in the territory of the arresting State on an “official” visit or a “private” visit, regardless of whether the arrest relates to acts allegedly performed before the person became the minister of foreign affairs or to acts performed while in office, and regardless of whether the arrest relates to alleged acts performed in an “official” capacity or in a “private” capacity. This decision seems to impact only on universal jurisdiction by foreign domestic jurisdiction, and does not apply to potential proceedings before the International Criminal Court. In a decision of February 2012, the International Court of Justice specified the scope of this decision by clarifying the distinction and the relationship between criminal law rules and those relating to the responsibility of the State ( Germany v. Italy; Greece intervening , ICJ, Judgment of 3 February 2012; infra Jurisprudence).

International law establishes that, in the case of war crimes, crimes against humanity, genocide, and torture, no one may use his or her official status to claim immunity in an attempt to avoid facing justice. This provision is set forth in

  • the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Art. 4),
  • the 1984 Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment,
  • the 1949 Geneva Conventions (GCI Art. 49, GCII Art. 50, GCIII Art. 129, and GCIV Art. 146),
  • the Statute of the Nuremberg Tribunal (Art. 7),
  • the Statute of the International Criminal Tribunals for the Former Yugoslavia and Rwanda (Art. 7.2 of the ITCY Statute, Art. 6.2 of the ICTR Statute), and
  • the Statute of the International Criminal Court (Art. 27).

Diplomatic Immunity

This form of immunity is established by the Vienna Convention on Diplomatic Relations, adopted on 18 April 1961 and entered into force in 1964 (as of June 2015, it had 190 States Parties).

The types of immunities that protect diplomats include the following:

  • Immunity from any form of arrest or detention (Art. 29): This means that “the person of a diplomatic agent shall be inviolable.” He or she cannot be arrested or detained.
  • Immunity from jurisdiction or from legal process (Art. 31): A diplomat may not be prosecuted by any court of the State in which he or she is posted. This guarantee is applicable regardless of the seriousness of the alleged crime (felony or misdemeanor) and whether or not the acts were committed in the exercise of the diplomat’s functions. Article 31 further specifies that a diplomatic agent is not obliged to give evidence as a witness. However, the diplomat’s home State may waive the immunity from jurisdiction.

Note that while the principle of immunity today is said not to extend to the most serious crimes—crimes against the peace, war crimes, crimes against humanity, and acts of genocide—the 1961 Vienna Convention (as well as the 1946 UN Convention, explained later) does not support this stand and provides that immunity is general .

  • Inviolability of the residence and property (Art. 30): The protection enjoyed by such objects is similar to that enjoyed by the premises of the diplomatic mission. Searches or seizures carried out in the diplomat’s residence are prohibited. This inviolability also applies to the diplomat’s papers, correspondence, and property. The term property covers diverse elements, such as luggage, car, salary, and so on.

These prerogatives are granted to the diplomat when he or she is accredited with the host State (meaning that the diplomat’s name appears on the list of individuals registered and therefore effectively considered as diplomats by the host State).

Immunities of United Nations Personnel

The Convention on the Privileges and Immunities of the United Nations was adopted on 13 February 1946 ; as of June 2015 it had 161 States Parties. Its aim is to shelter members of UN personnel from national pressures and to ensure the “exclusively international character” of their mission, in conformity with Article 100 of the UN Charter.

Its provisions are applicable only to individuals who are officials and experts of the UN in the strictest sense. Personnel working in the field for humanitarian agencies of the UN are mostly under different types of working contracts and are therefore not covered by the 1946 Convention. Persons working for UN specialized agencies come under a specific protection regime regulated by the Convention on the Privileges and Immunities of the Specialized Agencies, adopted by the General Assembly of the UN on 21 November 1947 (which had 127 States Parties as of June).

The 1946 Convention grants the following immunities:

  • UN officials enjoy, inter alia, immunity from jurisdiction (or legal process), but only for acts committed in their official capacity (Art. 5, Section 18). They also enjoy immunity from arrest or detention, but this was not established in the 1946 Convention. This gap was filled by the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (adopted on 14 December 1973 and entered into force in 1977; it had 178 States Parties as of June 2015).
  • UN experts enjoy immunity from arrest and detention during the period of their mission and immunity from jurisdiction for acts accomplished in the performance of their mission. This immunity from legal process continues even after the mission is over (Art. 6, Section 22).
  • In addition to the immunities and privileges specified in this Convention, the Secretary-General and all Assistant Secretaries-General of the UN are granted the same immunities, exemptions, and facilities as those accorded to diplomatic envoys, in accordance with international law (Art. 5, Section 19).

Immunities of Members of Peacekeeping Forces

The immunities foreseen for members of peacekeeping forces depend on their status, which is determined by the agreement signed between the UN and the country in which the operation will take place. The model agreements regulating the status of peacekeeping forces establish several different regimes:

  • the special representative, the commander of the military branch of the peacekeeping operation, the chief of the civilian police, and the high-level officials cooperating with the special representative and the commander enjoy full diplomatic immunity;
  • military observers, members of the UN civilian police, and civilian agents who are not civil servants enjoy the immunities foreseen for UN experts;
  • the military personnel of national contingents assigned to the military branch of the peacekeeping operation enjoy immunity from jurisdiction for acts carried out in the exercise of their functions. This immunity remains in force even after they are no longer members of the operation.

The Secretary-General of the UN has the authority to waive the immunity of any official or expert. He has the right and the duty to do so in any case in which, in his opinion, the immunity would impede the course of justice and can be waived without prejudice to the interests of the United Nations. The Security Council of the UN has the right to waive the Secretary-General’s immunity (Art. 5, Section 20, and Art. 6, Section 23, of 1946 Convention).

This point is particularly important given that, in numerous peacekeeping operations, military personnel fall under the double responsibility of the UN and their own national military hierarchy. This situation makes it more complicated to determine which mechanisms must be used to clarify their responsibility in cases in which crimes are committed against individuals that they had a mission to protect.

Jurisdictional Immunity of States

The jurisdictional immunity of States is governed by the European Convention on State Immunity, adopted by the Council of Europe in Basel on 16 May 1972, and by the United Nations Convention on Jurisdictional Immunities of States and Their Property, adopted on 22 December 2004. These conventions provide that a Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State in proceedings that relate to redress for injury to the person or damage to tangible property, if the facts that occasioned the injury or damage occurred in the territory of the State of the forum, and if the author of the injury or damage was present in that territory at the time when those facts occurred (Art. 11 of the European Convention, Art. 12 of the UN Convention).

The European Convention also provides that nothing shall affect immunities or privileges enjoyed by a Contracting State in respect of anything done or omitted to be done by, or in relation to, its armed forces when on the territory of another Contracting State (Art. 31).

However, the application of these conventions is limited since a very small number of States have ratified them. The European Convention was ratified only by eight States as of June 2015: Austria, Belgium, Cyprus, Germany, Luxembourg, the Netherlands, the United Kingdom, and Switzerland. Besides, the United Nations Convention on Jurisdictional Immunities of States and Their Property has not yet entered into force, as it needs at least thirty ratifications. As of April 2013 it has been ratified only by eighteen States: Austria, Czech Republic, France, Finland, Italy, Iran (Islamic Republic of), Japan, Kazakhstan, Latvia, Lebanon, Liechtenstein, Norway, Portugal, Romania, Saudi Arabia, Spain, Sweden, and Switzerland.

There is also a draft of an Inter-American Convention on Jurisdictional Immunities of States, which had been approved by the Inter-American Juridical Committee on 21 January 1983 but has never entered into force.

Duty of commandersHumanitarian and relief personnelImpunityInternational Criminal CourtInternational Court of JusticePeacekeepingResponsibility

Jurisprudence

  1. Existence of a Customary International Law of Immunity

In two recent cases referring to personal immunity and to State immunity, the ICJ recalled the principle of jurisdictional immunity of States: Arrest Warrant of 11 April 2000 ( Democratic Republic of the Congo v. Belgium) , Judgment, ICJ Reports 2002 (hereafter referred to as Democratic Republic of the Congo v. Belgium ), paras. 58, 60; and Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening) , ICJ, Judgment, 3 February 2012 (hereinafter referred to as Germany v. Italy ).

In 2000, the ICJ confirmed in the case Democratic Republic of Congo v. Belgium the existence of jurisdictional immunities for heads of States and governments as well as for ministries of foreign affairs in function. The Court affirmed that this immunity does not mean that those persons enjoy impunity for crimes that they could have perpetrated. Indeed, the ICJ considered that jurisdictional immunity and individual criminal responsibility are two distinct notions. Jurisdictional immunity is permanent and prevents criminal prosecutions only for a limited period of time. Besides, it cannot be claimed before the International Criminal Court.

In the 2012 case opposing Germany and Italy on the issue of compensation for victims of Nazism, the International Court of Justice readdressed this notion. In this case, the ICJ held that customary international law imposes the recognition of immunity of States whose armed forces are accused of having committed harmful acts on the territory of another State during an armed conflict. It also affirmed that immunity does not depend on the gravity of the alleged acts (paras. 78–93, 100–101). The Court recalled that the International Law Commission found in 1980 that the rule of State immunity had been adopted as a general rule of customary international law solidly rooted in the current practice of States. The Court held that “that conclusion . . . is confirmed by the record of national legislation, judicial decisions, . . . and that there is a right to immunity under international law, together with a corresponding obligation on the part of other States to respect and give effect to that immunity” (para. 56). The Court affirmed that “the law of immunity is essentially procedural in nature. . . . It regulates the exercise of jurisdiction in respect of particular conduct and is thus entirely distinct from the substantive law which determines whether that conduct is lawful or unlawful” (para. 58). The Court then concluded that “under customary international law as it presently stands, a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law or the international law of armed conflict” (para. 91). Besides, the Court pointed out that “whether a State is entitled to immunity before the courts of another State is a question entirely separate from whether the international responsibility of that State is engaged and whether it has an obligation to make reparation” (para. 100). The Court held that “the two sets of rules address different matters. The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State. They do not bear upon the question whether or not the conduct in respect of which the proceedings are brought was lawful or unlawful” (para. 93).

Through this decision, the ICJ reestablished the distinction between individual criminal responsibility, for which the official function immunity was abolished by the International Criminal Court, and the responsibility of the State, notably in matters of indemnification.

  1. Immunity of Testimony for Humanitarian Personnel and Journalists

In principle, immunities traditionally admissible before domestic courts are not admitted by international criminal tribunals; there is an absolute obligation to cooperate with these tribunals. However, international tribunals recognized the need to protect the public-interest mission of humanitarian organizations and war correspondents during armed conflict.

In the Simic Case (27 July 1999), the International Criminal Tribunal for the Former Yugoslavia ruled that as a matter of customary international law, the ICRC enjoys an absolute privilege to withhold its confidential information (see paras. 72–74). The ICTY Decision concluded that: (1) the ICRC is a unique entity and institution, possessing international legal personality; (2) the ICRC’s mandate to protect victims of armed conflict under the Geneva Conventions, the Additional Protocols, and the Statutes of the Movement represents a “powerful public interest”; (3) the ICRC’s ability to fulfill that mandate depends on the willingness of warring parties to grant the ICRC access to the victims of such conflict and that such willingness, in turn, depends upon the ICRC’s adherence to its principles of impartiality, neutrality, and rule of confidentiality; and (4) the ratification of the Geneva Conventions by 194 States, the recognition by the UN General Assembly of the ICRC’s special role in international relations, and the historic practice of and official opinions expressed by States in respect of ICRC confidentiality give rise to a rule of customary international law providing the ICRC with an absolute right to non-disclosure of information relating to its work.

The ICRC is the only organization that was expressly granted this immunity. The International Criminal Court has gone further by recognizing expressly in its Rules of Procedure and Evidence (Rule 73) that information in the hands of the ICRC is not subject to disclosure, including by way of testimony. The portion of Rule 73 that deals with the ICRC is the result of a compromise. The ICRC had advocated for a rule giving absolute protection. Several States, however, insisted on a rule whereby the Court would play a part in determining on a case-by-case basis what ICRC information, if any, should be released. Rule 73 thus requires the ICRC to consult with the Court where information is deemed by the latter to be “of great importance for a particular case.” The ICRC nonetheless retains the final word on release of its information. This rule also prohibits the use of information obtained in the course of activities covered by professional secrecy.

Since 1999, there has been discussion on whether or not this exemption was only designed for the ICRC or could be extended through analogical reasoning and basis to other humanitarian organizations acting in areas of conflicts and informed about situations and people under investigations of international tribunals. This has been done in 2002 and later to cover war correspondents as well as other humanitarian workers, providing that they would ask for such privilege in a consistent way—making clear that disclosing their sources to judicial bodies will not jeopardize their very professional mission and presence in areas of conflict as well as the ability to discuss and negotiate with leaders and groups involved in violence.

In the Brdjanin & Talic Case (Decision on Interlocutory Appeal, IT-99-36-AR 73.9, 11 December 2002, paras. 36, 38, and 50), better known as the “Randal Case,” the ICTY Appeals Chamber found that war correspondents served a public interest through their work and that they should be considered as independent observers rather than as potential witnesses for the prosecution. Accordingly, the Tribunal granted them the privilege not to testify in front of the Court. The Tribunal further decided that this exemption of testimony could only be reversed by judges where two cumulative conditions exist: the information sought must be “crucial to the case,” and “it cannot reasonably be acquired by other means.” This judgment has since been extended to humanitarian NGO representatives, who also serve a public interest though humanitarian relief work.

International Criminal Tribunals and the ICC have acknowledged the incompatibility between humanitarian action and that of judicial witness. It is clear from the judges’ reasoning that such privilege must be requested on a case-by-case basis and can be refused if the behavior of the organization or the person has already renounced the confidentiality element of their profession and widely disclosed the information.

Duty of commandersHumanitarian and relief personnelPeacekeepingProtectionResponsibilitySecretariat of the UNWar crimes/Crimes against humanity

For Additional Information: Bossuyt, Marc, and Stef Van Deginste. “Immunity.” In Encyclopedia of Genocide and Crimes Against Humanity , edited by Dinah Shelton, 485–89. Detroit: Thomson/Gale, 2004.

Cassese, Antonio. “When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case.” European Journal of International Law 13, no. 4 (2002): 853–75.

Gaeta, Paola. “Does President Al Bashir Enjoy Immunity from Arrest?” Journal of International Criminal Justice 7, no. 2 (2009): 315–32.

Higgins, Rosalyn. Problems and Process: International Law and How We Use It . Oxford: Clarendon Press, 1994, chap. 5.

Wickremasinghe, Chanake. “Immunities Enjoyed by Officials of States and International Organizations.” In International Law , edited by Malcolm D. Evans, 387–413. Oxford: Oxford University Press, 2003.