An assessment of whether functional and absolute immunities can be ivoked in criminal proceedings by foreign state officials in relations to international crimes

nicht angegebenThis thesis is an assessment of whether functional and absolute immunity can be invoked in criminal proceedings by foreign state officials in relation to international crimes. It sought to achieve three main objectives: to provide a legal discussion as what are international crimes; to provide better understanding to nature of both functional and absolute immunity under international law and; to provide a critical discussion on the foreign state officials who can enjoy functional and absolute immunities. Under international criminal law, no one has immunity before any international criminal tribunal court, such as the International Criminal Court, if accused of international crimes. This means that state officers may not plead any form of immunity as a defence to avoid criminal prosecution before international judicial institutions. However, heads of state and other high ranking officials are often accorded functional and absolute immunities in foreign states under customary international and treaty laws. Bearing this in mind, the Rome Statute of the International Criminal Court states unequivocally that no one enjoys immunity with regard to crimes over which the ICC has jurisdiction. However, given the fact that the ICC only has a complementary jurisdiction, national courts are viewed as having the primary jurisdiction to try those who have been accused of international crimes, while this scenario does not pose any challenge with civilians, a significant challenge arises where states officers have been accused of international crimes, because of equality between sovereign states and, most importantly, state immunity. Therefore, this thesis sought to assess whether state officers can invoke functional and absolute immunity before foreign national courts, if accused of international crimes. In achieving the objectives above, a doctrinal approach was used in the assessment. After the assessment, it has been concluded that, even though no one enjoys any immunity before international criminal tribunals including the ICC, based on customary international law, reasoning in the ICJ’s decided case, national case laws and international conventions, heads and former heads of states, heads and former heads of governments and other incumbent and former high ranking state officials enjoy both functional and absolute immunities when accused of international crimes. However, consuls enjoy such immunities only to the extent that they have not engaged in grave crimes. With respect to functional immunities, the defence of immunity is only with regard acts performed in an official capacity. It is also concluded that functional immunities continues beyond the tenure of office, while absolute immunity ends after tenure in office