529. [5] However, other jurists hold that heads of state and state officials still can be prosecuted by foreign courts after the end of their terms of office.[6][7]. International and Comparative Law Quarterly, 48. Nevertheless, sovereign immunity properly so-called, that is the immunity of the sovereign or head of state remained, although the juridical basis of such immunity is unclear. 41. Even as Lord Browne-Wilkinson attempted to explain the intricacies of the decision, the matter of immunity appeared settled and of secondary consideration to the 'new' requirement of double criminality which alone, it seemed, had resulted in the considerable reduction in the list of crimes for which Pinochet could be extradited to Spain. Functional immunity arises from customary international law and treaty law and confers immunities on those performing acts of state (usually a foreign official). 1: Underhill v. Fernandez (1897) 169 U.S. 456; Buttes Gas and Oil Co. v. Hammer (1982) A.C. 888; W.S. Regarding claims based on the idea that a senior state official committing International crimes can never be said to be acting officially, as Wouters notes: "This argument, however, is not waterproof since it ignores the sad reality that in most cases those crimes are precisely committed by or with the support of high-ranking officials as part of a state’s policy, and thus can fall within the scope of official acts." Closer examination of the reasoning of their Lordships, however, quickly dispels that impression and reveals a range of opinions across a wide spectrum. and 21. What a very well-written and highly topical blog. Pinochet Case: Immunity of a Former Head of State’, 48 ICLQ (1999) 207. In November 2007, French prosecutors refused to press charges against former US Secretary of Defense Donald Rumsfeld for torture and other alleged crimes committed during the course of the US invasion of Iraq, on the grounds that heads of state, heads of government and foreign ministers all enjoyed official immunity under customary international law, and they further claimed that the immunity exists after the official has left office. To access this article, please, Access everything in the JPASS collection, Download up to 10 article PDFs to save and keep, Download up to 120 article PDFs to save and keep. 536, 542, did not provide a code in respect of matters which it did not purport to cover. However, once the accused leave their offices, they are immediately liable to be prosecuted for crimes committed before or after their term in office, or for crimes committed in a personal capacity whilst in office (subject to jurisdictional requirements and local law). Parliamentary Written Answers, 9 12 1998, Vol.322, cols.213–217. That is so even after the person ceases to perform acts of state. Like foreign sovereign immunity, head of state immunity is based upon the notion of comity between independent states. Access supplemental materials and multimedia. Click here to email these CVs to a colleague, For more information contact the Practice Desk on, Consideration of state immunity where former head of state at issue, Healthcare, Mental Health and Mental Capacity, Integrity + (Governance, Investigations and Solutions), http://www.bailii.org/ew/cases/EWCA/Civ/2015/481.html, Visit Matrix's virtual booth ar the Bar Council's online Pupillage Fair on Saturday 17th October to find out more…. Published online by Cambridge University Press: URL: /core/journals/international-and-comparative-law-quarterly. This was rejected by a majority of the Law Lords (3-2), who ruled that some international crimes, such as torture, did not. 3. 897. In late March, 2020, after the failure of Juan Guaidó to wrest de facto control of the state of Venezuela from President Maduro despite support from (and recognition by) the US and some fifty other states, the US Department of Justice unveiled criminal indictments against Maduro and thirteen others of his current or former members of his government.