Edited by Alexander Orakhelashvili
Chapter 14: Immunities and international criminal tribunals
Immunities for international crimes, and the state of international criminal justice more generally, are often seen as bellwethers for the state of development of international law. Furthermore, it is true that while state action is not a sine qua non for all international crimes, such activity remains the paradigmatic example of such cases (and, for the crime of aggression, it is a definitional element of the offence). As a result, it is often the case that state officials are putative defendants before international criminal courts. This is one reason why immunities have proved so controversial. State officials, particularly high ranking officials, who are meant to be the target of prosecutions before international criminal courts, are very effective about getting their (often personal) concerns foregrounded in international affairs. A notable example of this, which is directly relevant to immunities for international crimes, is the action of the African Union in relation to the International Criminal Court (ICC), in which the charge against the ICC was led, in large part, by high ranking indictees, or similar figures who were appearing before the Court. However, immunities have also been controversial as they raise tensions between values that different aspects of international law seek to further. International criminal law seeks to limit impunity, albeit not at all costs; immunities, on the other hand, prioritize stability in international relations. These sometimes competing interests are in a state of balance which, as Judges Higgins, Kooijmans and Buergenthal made clear in the Yerodia case, is not immutable.
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