APPLICATION OF IMMUNITY IN THE PROSECUTION OF SERVING SENIOR STATE OFFICIALS OVER INTERNATIONAL CRIMES

C. J. UBANYIONWU, Maurice Canice Chukwu

Abstract


The immunities of serving senior State officials charged with the most serious crimes of international concern such as genocide, crimes against humanity, war crimes and aggression remain a hotly debated concept of International Criminal Law. Existing judicial authorities have not helped to calm the tides of this debate. In some cases, courts have considered that crimes under international law are not part of the functions of the State and, consequently, they have not recognized immunity. In other cases, however, courts have considered that these are acts clearly exercised in an official capacity, even if they are illegal, and have therefore granted immunity. While courts and scholars alike are yet to reach a consensus on this, it appears that on the basis of the weight of recent decisions such as the 27 July 2017 International Criminal Court (ICC) decision under Article 87(7) of the Rome Statute on the non-compliance by South Africa with the request by the ICC for the arrest and surrender of President Omar Al-Bashir of Sudan, the arguments now appear to swing towards waiving immunities for crimes committed in violation of international crimes and holding serving State officials responsible for their crimes while they are still in office.

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