A SPOTLIGHT ON THE IMMUNITY OF HEADS OF STATE AND PROSECUTION OF INTERNATIONAL CRIMES BEFORE INTERNATIONAL COURTS
Keywords:
Immunity, International Crimes, SubpoenasAbstract
This article contextualizes the issues of immunity and prosecution of international crimes at the International court and how the immunity of Heads of State has been treated at the International court level. The question of immunity of Heads of State officials from prosecution for international crimes has been treated differently by international courts while international criminal law is clear in itself that no Heads of State official is immune from prosecution for international crimes, the jurisprudence of international criminal tribunals reveals that there is a disagreement as to the extent of immunity accorded to Heads of State officials. Furthermore the discussion of the topic also addresses that, there is no uniform treatment or application of the immunity of Heads of States before international courts. The article argues further that the problem arises regarding issuance of subpoenas against Heads of state to testify or produce evidence before international courts. The jurisprudence of international courts indicates that such courts have adopted different positions on the extent and scope of immunity accorded to Heads of States where as Heads of state officials do not receive the same treatment before international courts hence this article examines the inconsistencies and loopholes on the aspect of subpoenas to Heads of state officials.
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xvi JL Mallory ‘Resolving the confusion over head of State immunity: The defined rights of Kings’ (1986) 86
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xviii Art 64(6), Rome Statute.
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xxiv
. A Cassese (2008) International criminal law, 2nd revised edn, 313-313. The position stated by Cassese
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xxvi Prosecutor v Miloševis, Case No. IT-02-54-T, Request for Bind ing Order to be Issued to the Government
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xxvii Prosecutor v Miloševis, Case No. IT-02-54-T, Request for Bind ing Order to be Issued to the Government
of the Federal Republic of Germany for the Cooperation of Certain Witnesses pursuant to Rule 54bis, 26
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xxviii United Kingdom and Germany were represented by Prof Christo pher Greenwood, QC, Mr. Chris
Who mersley, and Mr. Dominic Raab, and Dr Ed mund Duckwitcz and Prof Christian Tomuschat
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xxix Prosecutor v Miloševis, Case No. IT-02-54-T, ‘Decision on Assigned Counsel Application for Interview
xxx Paras 34-47.
xxxi Para 69 (b) and (c).
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xxxiii Prosecutor v Blaškis, Case No.IT-95 -14-PT, Decision on the Objection of the Republic of Croatia to the
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Croatia of an Interlocutory Decision o f a Trial Chamber (Issuance of Sub poenae Duces Tecum) and
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xxxiv Ibid Para 3.
xxxv Ibid Para 23.
xxxvi Ibid Para 24.
xxxvii Ibid Para 25
xxxviii See, Reparation s for Injuries Suffered in the Service of the United Nations Case, 1949 ICJ Reports 171;
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xxxix Prosecutor v Blaškis, Case No. IT-95-14-PT, Decision on th e Objection of the Republic of Croatia to the
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xl Para 31.
xli Prosecutor v Blaškis, Case No. IT-95-14-PT, Decision on the Objection of the Republic of Croatia to the
Issuance of Subpoenae Duces Tecum, Trial Chamber II, 18 July 1997, para 32.
xlii Ibid Para 47.
xliii Para 64
xliv Ibid Para 66.
xlv Ibid Para 66.
xlvi Para 69.
xlvii Paras 7 2-73, 78.
xlviii Paras 7 9 and 86.
xlix Prosecutor v Ka remera, Ngirumpatse and Nzirorera, Case No. ICTR-98-44-T, Decision on Joseph
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l Para 3, quoting Joseph Nzirorera’s Motion for Subp oena to President Paul Kagame, filed on 28 January 2008.
li Ibid Paras 3, 12 and 14.
lii Ibid Para 12.
liii Para 13.
liv Paras 15 and 16.
lv Prosecutor v Karemera, Ngirumpatse and Nzirorera, Case No. ICTR-9 8-44-T, Application for
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February 2008.
lvi Prosecutor v Ka remera, Ngirumpatse and Nzirorera, Case No. ICTR-98-44-T, Decision on Joseph
Nzirorera’s Application for Certifica tion to Appeal Decision on Joseph Nzirorera’s Motion for Subpoena to
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lvii Testimony of Jean Kambanda in Prosecu tor v Bag osora, Kabiligi, Ntabakuze a nd Nsengiyumva, Case
No. ICTR-98-41-T, 11 July 2006. The text of the testimony is reprinted in J Laughland (2008) A history of
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lviii Prosecutor v Norman, Fofana and Kondewa, Case No. SCSL-04-14-T, Decision on Motions by Mo inina
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Tejan Kabbah, President of the Republic of Sierra Leon e, Trial Chamber I, 13 June 2006, see the Separate
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lix See, Prosecutor v Norman, Fofana and Kondewa, SCSL-0 4-14-T, Fofana Motion for Issuance of a
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lx Paras 5 8, 9 8 and 100 of the SCSL Decision on Motions in Norman, Fofana and Kondewa.
lxi PM Hassan-Morlai, ‘Evidence in International Criminal Trials: Lessons and contributions from the
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lxii Prosecutor v Blaškis, Case No. IT-95-14-PT, Decision on the Objection of the Republic of Croatia to the
Issuance of Subpoenae Duces Tecum, Trial Chamber II, 18 July 1997, para 32.
lxiii See, Prosecutor v Norman, Fofana and Kondewa, SCSL-0 4-14-T, Fofana Motion for Issuance of
a Subpoena Ad Testificandum to President Ahmad Tejan Kabbah, 15 December 2005, para 13.
lxiv Prosecutor v Ka remera, Ngirumpatse and Nzirorera, Case No. ICTR-98-44-T, Decision on Joseph
Nzirorera’s Motions for Subpoena to Leon Mugesera and President Paul Kagame, Trial Chamber III, 19
February 2008, paras 1-16.
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