Head of State Immunity from Foreign Criminal Jurisdiction and a Human Rights Exception : Legacy of the Pinochet Case

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Title: Head of State Immunity from Foreign Criminal Jurisdiction and a Human Rights Exception : Legacy of the Pinochet Case
Author: Kinnunen, Katariina
Contributor: University of Helsinki, Faculty of Law
Publisher: Helsingin yliopisto
Date: 2019
Language: eng
URI: http://urn.fi/URN:NBN:fi:hulib-202001131032
Thesis level: master's thesis
Discipline: Kansainvälinen oikeus
International law
Abstract: The thesis is focused on two battling concepts: head of state immunity from criminal proceedings in foreign national courts and accountability of heads of state for international crimes and human rights violations they have committed. These concepts are studied in the light of the developments after a remarkable judgment by the United Kingdom’s House of Lords regarding Chile’s former president Augusto Pinochet, who according to the judgment did not enjoy immunity of a former head of state for crimes of torture. This year, 20 years have passed since this revolutionary judgment was given on March 24, 1999. Head of state immunity can be derived from state immunity, although currently it must be considered as a distinguished concept from the rules of state immunity. It has also similarities to diplomatic immunity. However, currently there is no separate convention regarding only head of state immunity. The International Law Commission (ILC) has been drafting articles on immunity of state officials from foreign criminal jurisdiction since 2006, but the work is not yet finished. This can be counted as an important expression of opinion in the area of head of state immunity. Thus, currently customary international law plays the most central role when trying to reconcile head of state immunity and current requirements of international criminal and human rights law. A possible human rights exception could include international crimes and other serious human rights violations. International crimes include core international crimes and additionally few other crimes. Serious human rights violations include breaches of human rights that cannot be derogated. These criminal actions are often subject to universal jurisdiction, which means that they should be punished wherever committed, and more importantly, by whoever. Thus, also the most high-ranking officials, such as heads of state should be held individually responsible. Since head of state immunity is divided to immunity ratione personae (reserved for incumbent heads of state) and immunity ratione materiae (covering official acts of former heads of state), which are distinctively different from each other, a possible human rights exception must be established separately to these doctrines. The elements of established rules of customary international law, state practise and opinio juris, show that a certain kind of human rights exception exists to immunity ratione materiae, whereas immunity ratione personae remains inviolable. The national and international cases and national legislations alongside other state practise and opinio juris, such as the ILC’s work and multilateral treaties however demonstrate, that the scope of the exception is not general, but including mainly just international crimes and excluding other serious human rights violations. Rationale for immunity, proper functioning of states, does not require that former heads of state should not be held responsible in foreign courts.

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