An Examination of the Concept of Presidential Immunity Under International Law

ABSTRACT The study focused an examThation of the concept ofpresident/al immunity under international law. Presidents who commits grave crñnes are chargeable under International Law with all the evil and horrors they have committed Although the ICC analyzed this i~sue of h~nmunity and concluded that the presidents do not possess personal immunity before the ICC for their acts, customary international law recognL~es certain ~degrees of immunity from criminal prosecution for heads of state and other officials. It was found out that the contemporary international law h~’nits the enjoyment of such h~nmunities. An unconditional defence of hnmunity of state officials can hardly be justified nowadays especially in thLs~ era of human rights agenda and protection of humanity from heinous crimes. The conclusion was found to be open to di~pute. Moreover, the consequences it attached to its legal basi~ from the presidential immunity perspective were subject to criticism and found to be incorrect. The considerable attention given to the binding effects of presidential immunity was justified by the fact that previous cases under international Law attempted to establ,~h its international legal basLs’ under UN charter chapter VII powers. Its strongly recommended that there is- no need for ~respect’ or ‘thqnity’ of the Head ofState who suppresses its own people and abuses its official position hi order to engage in commis-sion of worse crimes such as genocide, war crimes or crimes agai~st humanity.

TABLE OF CONTENTS

DECLARATION A

APPROVAL ii

DECLARATION B iii

APPROVAL SHEET iv

DEDICATION v

ACKNOWLEDGEM ENTS vi

TABLE OF CONTENTS vii

ACRONYMS AND ABBREVIATIONS x

LIST OF LEGISLATIONS xi

LIST OF CASES xii

ABSTRACT xvii

CHAPTER ONE 1

THE PROBLEM AND ITS SCOPE 1

1.1 Background of the study 1

1.2 Statement of the Problem 5

1.3 Purpose of the study 7

1.4 Research objectives 7

1.5 Research Questions 8

1.6 Hypothesis 9

1.7 Scope of the study 9

1.8 Operational definition of key terms 9

1.8.1 Immunity’ 10

VII

1.8.2 Jurisdiction .10

1.8.3 Personal immunity 11

1.8.4 Diplomatic immunity ii

1.9 REVIEW OF RELATED LITERATURE ii.

1.10 RESEARCH METHODOLOGY 18

CHAPTER TWO 20

The concept and type of Immunities 20

2.1 Introduction 20

2.2 Types of immunity 23

2.2.1 Personal immunity 23

2.2.2 Qualified immunity 24

2.2.3 Heads of state 24

2.2.4 Functional immunity 25

2.3 Legal framework for international practice with respect to

presidential immunity 26

2.4 Law on immunity before the Nuremberg Trials 35

2.5 Immunity in the Charter of the International Military Tribunal 38

2.6 Immunity under Control Council Law No. 10 41

2.7 Immunity in the Charter of the International Military Tribunal for the

Far East 42

2.8 Immunity in the statutes of international criminal tribunals 43

2.9 The International Criminal for Rwanda (ICTR) 1994 45

2.10 Immunity in the Rome Statute of the International Criminal Court...47

2.11 Immunity in the statutes of hybrid courts 54

2.12 Immunity as covered under treaties 57

VIII

CHAPTER THREE .60

3.0 THE POSITION AND STATUS OF INTERNATIONAL LAW WITH

REGARD TO THE RELATIONSHIP BETAJEEN INDIVIDUAL CRIMINAL

RESPONSIBILITY AND THE LAW OF IMMUNITIES 60

3.1 Immunity in the Rome Statute of the International Criminal Court...60

3.2 The special court for Sierra Leone (SCSL) 64

3.3 The extra-ordinary court of Cambodia ECCC 2004 65

3.4 International Law Commission, 2009, UN General Assembly, UN.

Doc. AICN. 41605, Agenda item No.8 67

3.5 The convention on the non-applicability of statutory limitations to

war crimes and crimes against humanity, 1968 67

CHAPTER FOUR 69

40. Introduction 69

4.1 Jurisdiction as a Precondition for withdrawal of presidential Immunity

before the national and international law 69

4.1.1 Security Counai’c past removals ofpersonal 1mmunities 81

4.2 Challenges faced by the national, international criminal court in

dealing with the impunities of presidential immunity 82

CHAPTER FIVE 86

50. CONCLUSIONS AND RECOMMENDATIONS OF THE FINDINGS 86

5.1 Conclusions 86

5.2 Recommendations 87

BIBIOGRAPHY 90