¹ See, for example, Amnesty International, Universal Jurisdiction: The Duty of States to Enact and Implement Legislation, September 2001, AI Index IOR 53/2001, at chapter 14, accessible at <http://www.web.amnesty.org/web/web.nsf/pages/legal_memorandum>.

² Rome Statute of the International Criminal Court, adopted July 17, 1998, reprinted in 37 I.L.M. 999 ( 1999) [hereinafter ICC Statute].

³ R. v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (Amnesty Internationaland Others Intervening), (No. 3), [1999] 2 All E.R. 97 (H.L.) [hereinafter Pinochet decision]. The Belgian warrant is discussed in Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, ICJ General List no. 121, February 14, 2002, accessible at <www.icj-cij.org> [hereinafter Yerodia decision].

⁴ Article 27 of the ICC Statute, supra note 2, rejects immunities for persons once they are before the International Criminal Court [hereinafter ICC], yet Article 98 explicitly contemplates that some persons will not be surrendered to the ICC, because of their immunities, unless a waiver is obtained. See the discussion under the heading “ICC: Relinquishment through Treaty” later in this article. The Pinochet principle addresses former heads of state, whereas each one of the seven Law Lords painstakingly emphasized that had Pinochet been a current head of state, he would have received absolute immunity ratione personae, even against charges of torture or crimes against humanity. See the discussion under the heading “Inroads into Immunities Ratione Materiae: The Pinochet Principle” later in this article. The Belgian arrest warrant against the foreign minister of the Democratic Republic of Congo [hereinafter DRC] was a high-water mark in the efforts to ensure accountability, but even that warrant explicitly recognized that the foreign minister would have complete immunity if he came to Belgium for official business. See the discussion under the heading “The ICJ Yerodia Decision” later in this article. There is, in addition, a consistent state practice of respecting immunities ratione personae against national court proceedings, even for international crimes. See the discussion under the heading “National Jurisprudence and State Practice” later in this article.

⁵ Yerodia, supra note 3.

⁶ See, for example, Orentlicher, Diane F., Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537 (1991)Google Scholar.

⁷ See, for example, UN Security Council Resolution 827 (1993) (International Criminal Tribunal for the Former Yugoslavia), Resolution 955 ( 1994) (International Criminal Tribunal for Rwanda), and Resolution 1315 (2000) (Sierra Leone Special Court), and see ICC Statute, supra note 2 at preamble and Articles 1 and 5.

⁸ Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Charter of the International Military Tribunal, August 8, 1945, 82 U.N.T.S. 279 [hereinafter Nuremberg Charter).

⁹ Charter of the International Military Tribunal for the Far East, January 19, 1946 (General Orders No. 1), as amended, General Orders no. 20, April 26, 1946, T.I.A.S. No. 1589 [hereinafter Tokyo Charter], accessible at <http://www.yale.edu/lawweb/avalon/imtfech.htm>.

¹⁰ 1949 Geneva Conventions, including Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12,1949, 75 U.N.T.S. 31; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12, 1949, 75 U.N.T.S. 85; Convention (III) relative to the Treatment of Prisoners of War, August 12, 1949, 75 U.N.T.S. 135; Convention (IV) relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Conventions].

¹¹ Convention on the Prevention and Punishment of the Crime of Genocide, UN General Assembly Resolution 260(A)(III), UN GAOR, 3^rd Sess., Supp. No. 1921, Dec. 9, 1948, 78 U.N.T.S. 227 [hereinafter Genocide Convention].

¹² Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, 1465 U.N.T.S. 85 [hereinafter Torture Convention].

¹³ For example, this made possible precedent-setting developments such as the arrest of General Pinochet in 1998. See the discussion under the heading “Inroads into Immunities Ratione Materiae: The Pinochet Principle” later in this article.

¹⁴ Since the drafting of this article, the author has had the benefit of reading some of the subsequently published commentaries reacting to the Yerodia decision and notes that others share the conceptual framework of seeking a proper “balancing” between accountability concerns and maintaining international relations: Cassese, Antonio, “When May Senior Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case” (2002) 13 Eur. J. Int’l L. 853;CrossRefGoogle Scholar Wirth, Steffen, “Immunity for Core Crimes? The ICJ’s Judgment in the Congo v. Belgium Case” (2002) 13 Eur. J. Int’l L. 877 CrossRefGoogle Scholar; Broomhall, Bruce, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law, Monographs in International Law, edited by Brownlie, I. (Oxford: Oxford University Press, 2002)Google Scholar; Gaeta, Paola, “Official Capacity and Immunities” in Cassese, Antonio et al, eds, The Rome Statute of the International Criminal Court: A Commentary (Oxford: Oxford University Press, 2002)Google Scholar; and Kress, Claus, “War Crimes Committed in Non-International Armed Conflict and the Emerging System of International Criminal Justice” (2000) 30 Israel Y.B.H.R. 103 Google Scholar.

¹⁵ See earlier texts such as Ogdon, Montel, Juridical Bases of Jurisdictional Immunity (Washington DC: John Byrne and Company, 1936) at 63-104 and Wilson, Clifton, Diplomatic Privileges and Immunities (Tucson: University of Arizona Press, 1967) at 1-5.Google Scholar

¹⁶ See, for example, Pinochet, supra note 3 at 171 (Lord Millett): “The immunity of a serving head of state is enjoyed by reason of his special status as the holder of his state’s highest office. He is regarded as the personal embodiment of the state itself. It would be an affront to the dignity and sovereignty of the state which he personifies and a denial of the equality of sovereign states to subject him to the jurisdiction of the municipal courts of another state … he is not liable to be arrested or detained on any ground whatever.”

Likewise, see Lord Phillips, ibid. at 185-86: “An acting head of state enjoyed by reason of his status absolute immunity from all legal process. This had its origin in the times when the head of state truly personified the state … it would have been contrary to the dignity of a head of state that he should be subjected to judicial process and this would have been likely to interfere with the exercise of his duties as a head of state.”

¹⁷ See Ogdon, supra note 15 at 105-65 and Wilson, supra note 15 at 1-5.

¹⁸ See Tachiona v. Mugabe 169 F. Supp. 259, US Dist. at 277 (October 30, 2001).

¹⁹ See Schooner Exchange v. M’Fadden 11 U.S. 116 at 137 (1812) as well as Pinochet, supra note 3 at 171 and 185-86.

²⁰ On the need to move away from a “dignity” rationale, see Lauterpacht, H., “The Problem ofJurisdictional Immunities of Foreign States” (1951) 28 B.Y.I.L. 220 Google Scholar. See also Wirth, supra note 14 at 888.

²¹ The rationale of political expediency is candidly discussed in US jurisprudence. See, for example, Tachiona v. Mugabe 169 F. Supp. 259, US Dist. at 290-91 (October 30, 2001), referring to “fraying sensibilities,” “embarrassment,” and “harm to diplomatic relations.” See also Ogdon, supra note 15 at 59-60. In the first Pinochet hearing of the House of Lords, Lord Lloyd of Berwick was very concerned that “issues of great sensitivity have arisen between Spain and Chile” and “the UK is caught in the crossfire”: Pinochet, infra note 97 at 934.

²² See, for example, Vienna Convention on Diplomatic Relations, April 18, 1961 , 500 U.N.T.S. 95 at preamble, paragraph 1 [hereinafter Vienna Convention].

²³ Frey, Linda S. and Frey, Marsha L., The History of Diplomatic Immunity (Columbus: Ohio State Press, 1999)Google Scholar; Barker, J. Craig, The Abuse of Diplomatic Privileges and Immunities: A Necessary Evil? (Aldershot: Dartmouth, 1996) at 14–31 Google Scholar, tracing “one of the oldest branches of international law” from prehistory and antiquity; Ogdon, supra note 15 at 8-20; and McLanahan, Grant V., Diplomatic Immunity (New York: St. Martin’s Press, 1989) at 18–25 Google Scholar.

²⁴ Barker, supra note 23 at 32; Frey and Frey, supra note 23 at 3; McLanahan, supra note 23 at 18-21.

²⁵ Ogdon, supra note 15 at 16.

²⁶ Vienna Convention, supra note 22 at preamble, paras. 2-4.

²⁷ Even its conceptual foundation is unclear. Some commentators treat it as a type of state immunity, which deals with the immunity of the state itself against foreign courts. (Significant inroads have been made in the context of civil suits, as opposed to criminal prosecutions, against foreign states in certain situations. This vast area is beyond the scope of this article.) Others consider it a type of diplomatic immunity. Neither of these analogies is entirely apt, so it seems most accurate to regard head of state immunity as a separate category. See, for example, Mallory, Jerrold, “Resolving the Confusion over Head of State Immunity: The Defined Right of Kings” (1986) 86 Colum. L. Rev. 169 CrossRefGoogle Scholar; Bröhmer, Jürgen, State Immunity and the Violation of Human Rights (The Hague: Martinus Nijhoff, 1997) at 29–32 Google Scholar.

²⁸ Vienna Convention, supra note 22.

²⁹ Lewis, , State and Diplomatic Immunity, 3rd edition (London: Lloyd’s of London Press, 1999) at 125 Google Scholar: “The sovereign’s personal immunity at common law, whereby he may not be directly impleaded, is total, though he made waive it by an actual submission.” See also Mallory, supra note 27 and see the Pinochet decision, supra note 3 at 179 (Millet): “[A] serving head of state or diplomat can still claim immunity ratione personae if charged with [torture] ... The nature of the charge is irrelevant; his immunity is personal and absolute.” Likewise, see Lord Hope (at 152), holding that even in respect of “serious international crimes,” “a head of state is still protected while in office by the immunity ratione personae.” All of the lords conirmed the absolute nature of this immunity, even with respect to international crimes: Ibid at 111, 119-20, 152, 168-69, 179, and 181.

³⁰ See Barker, supra note 23 at 219-42, on the necessity of the diplomatic function and the necessity of immunities for the fulilment of that function.

³¹ As an illustration, consider the use in Malaysia of libel suits against a special rapporteur on the independence of judges and lawyers. That was a civil matter, but criminal measures could also be used to hinder important international work, thus demonstrating the value of immunities in preventing such abuse. See, for example, Bekker, Peter, “Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights. Advisory Opinion” (1999) 93 Am.J.L. 913 CrossRefGoogle Scholar.

³² See Zelnicker, Lindsay, “Toward a Functional International Criminal Court: An Argument in Favor of a Strong Privileges and Immunities Agreement” (2001) 24 Fordham Int’l L. J. 988.Google Scholar

³³ Satow’s Guide to Diplomatic Practice, 5^th edition (London: Longman, 1979) at 9: “A head of state who has been deposed or replaced or has abdicated or resigned … will be entitled to continuing immunity in regard to acts which he performed while head of state, provided that the acts were performed in his official capacity.” This approach has now been developed by Pinochet, supra note 3. See the discussion under the heading “Inroads into Immunities Ratione Materiae: The Pinochet Principle” later in this article.

³⁴ As will be discussed later in this article, the Pinochet decision, supra note 3, highlights that immunities ratione personae do not prevent prosecution for international crimes, since the commission of such crimes cannot constitute state functions.

³⁵ Wicquefort, A. van, The Embassador and His Functions, 2 ^nd edition (London, 1740)Google Scholar (translated into English by John Digby) at 251, quoted in Ogdon, supra note 15 at 128-29. Thus, the only remedy, regardless of the gravity of the offence, was to expel the offending diplomat.

³⁶ Codified in the Vienna Convention, supra note 22, Article 41(1).

³⁷ Over the centuries, diplomatic agents have been implicated in plots against mon-archs, espionage, drug smuggling, and even crimes of violence such as murder.

³⁸ In 1571 and 1584, when ambassadors in England were detected in plots against the Crown, some urged that foreign ambassadors should lose their immunity for treason and high crimes. In the end, these arguments did not prevail and the diplomats were expelled. Similar practices were followed in other countries. See Ogdon, supra note 15 at 56-59.

³⁹ The murder of policewoman Yvonne Fletcher in the United Kingdom in 1984 provoked a massive outcry and a parliamentary review of diplomatic immunities. The review concluded, however, that attempts to renegotiate the Vienna Convention, supra note 22 , would create more problems that it would solve. The United Kingdom therefore resolved to take irmer steps within the existing framework of diplomatic immunities. See Barker, supra note 23 at 135-52.

⁴⁰ Bills to limit immunity have been introduced several times over the decades in the US Congress, including in the late 1920s, 1930, 1941, and 1956. See Wilson, supra note 15 at 37-38. In 1987, Jesse Helms introduced a bill to remove diplomatic immunity for crimes of violence, drug trafficking, and drunk driving. This bill was rejected as it would violate the Vienna Convention and put US diplomats at risk. McClanahan, supra note 23 at 167-71.

⁴¹ Sir Edward Coke proposed that an ambassador should lose immunity for any crime contra jus gentium, “such as Treason, Felony, Adultery or any other crime which is against the Law of Nations,” a suggestion that was not picked up in state pratice. Ogdon, supra note 15 at 44.

⁴² See the examples in notes 38-40 in this article. Barker, supra note 23, after extensively reviewing state practice, concludes that, despite all of the problems immunities create, the beneits in terms of preserving the diplomatic function in volatile situations outweigh the disadvantages and that immunities are therefore a “necessary evil” (at 243-46).

⁴³ Ambassador Roosevelt, providing the executive branch’s response to proposed US legislation to limit the immunities of foreign diplomats, quoted in Barker, supra note 23 at 232 .

⁴⁴ Ibid. at 148.

⁴⁵ See, for example, the Canadian case, Rose v. The King (1946), [1947] 3 D.L.R. 618 . This case allowed certain incursions into normal privileges for diplomatic documents in extreme cases where diplomats imperilled the security of the host state (the judges therefore admitted as evidence documents that had fallen into Canada’s possession). However, the foreign diplomat himself can under no circumstance be summoned before the criminal jurisdiction of the receiving state: “If the diplomat violates the law of nations, it does not follow that the other State has the right to do likewise” (at 645).

⁴⁶ Vienna Convention, supra note 22, Article 31(1). See Denza, Eileen, Diplomatic Law: A Commentary on the Vienna Convention on Diplomatic Relations (New York: Oceana Publications, 1976) at 149 and 174-75.Google Scholar

⁴⁷ Vienna Convention, supra note 22, Article 32.

⁴⁸ Ibid., Article 9.

⁴⁹ Barker, supra note 23 at 159, discusses a 1984 US policy affirming that former diplomats returning to the US could be tried for crimes in the United States unless they related to official functions: This position dovetails well with the Pinochet decision, supra note 3. There are a few other options to control abuse. Receiving states are entitled to refuse agrément, that is, to refuse to accept a particular individual proposed as a head of mission to the state. States can also encourage or pressure the sending state to prosecute. See the additional suggestions under the heading “Future Avenues for Development” later in this article.

⁵⁰ “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” Judgment of the International Military Tribunal for the Trial of German Major War Criminals, Nuremberg Trial Proceedings, vol. 22, at 466.

⁵¹ Instrument of Surrender, May 8, 1945, 59 Stat. 1957, Executive Agreement Series 502, accessible at <http://www.yale.edu/lawweb/avalon/wwii/gs11.htm>. The Allies accordingly exercised sovereign functions within Germany, including making provision for the trial of all war criminals. See Declaration Regarding the Defeat of Germany and the Assumption of Supreme Authority by Allied Powers, June 5, 1945, esp. Articles 11 and 13, accessible at <http://www.yale.edu/lawweb/avalon/wwii/ger01.htm>.

⁵² Instrument of Surrender, September 2, 1945, accessible at <http://www.yale.edu/lawweb/avalon/wwii/j4.htm>.

⁵³ Article 6 of the Tokyo Charter, supra note 9, did not refer directly to the head of state, since a special agreement had been reached not to prosecute Emperor Hirohito. Article 6 therefore simply provided: “Neither the official position, at any time, of an accused, nor the fact that an accused acted pursuant to order of his government or of a superior shall, of itself, be sufficient to free such accused from responsibility for any crime with which he is charged, but such circum-stances may be considered in mitigation of punishment if the Tribunal determines that justice so requires.”

⁵⁴ See, for example, Penrose, Mary Margaret, “It’s Good to Be the King!: Prosecuting Heads of State and Former Heads of State under International Law” (2000) 39 Colum. J. Transnat’l L. 193 at 194-95.Google Scholar

⁵⁵ Some have interpreted Article 7 as meaning that those responsible for genocide, crimes against humanity, and war crimes can never beneit from immunities of any kind: See ibid.; Bianchi, Andrea, “Immunity versus Human Rights: The Pinochet Case” (1999) 10 Eur. J. Int’l L. 237 CrossRefGoogle Scholar; and Amnesty International, supra note 1 . This interpretation is simple and clear, as it does not require any cumbersome distinctions between immunities ratione materiae and immunities ratione personae, nor between national courts and international courts. It is also morally attractive because it seems to sweep away all obstacles to the prosecution of war criminals. However, such an interpretation is profoundly and increasingly contradicted by the applicable jurisprudence and state practice, which consistently continues to uphold certain immunities ratione personae regardless of the nature of the allegation. Therefore, a more sophisticated theory is necessary to take into account this jurisprudence and state practice.

⁵⁶ Judgment of the International Military Tribunal for the Trial of German Major War Criminals (London: His Majesty’s Stationery Office, 1946) at 42.

⁵⁷ This is sensitively addressed in The Princeton Principles on Universal Jurisdiction, Program in Law and Public Affairs, 2001, accessible at <www.princeton.edu>, which is the product of a working group of scholars on the principles of universal jurisdiction. Principle 5 endorses the rule that official position does not relieve a person of criminal responsibility. The commentary notes that “[t]here is an extremely important distinction between ’substantive’ [rationae materiae] and ’procedural’ [rationae personae] immunity”(at 48). The commentary says that the rejection of substantive immunity, covering conduct committed in an official capacity, “keeps faith with the Nuremberg Charter.” “Nevertheless, in proceedings before national tribunals, procedural immunity remains in effect during a head of state’s or other official’s tenure in office, or during the period in which a diplomat is accredited to a host state” (at 49). Diplomats and other officials enjoy an “unqualified ex officio immunity” while they perform a particular role, but they are subject to prosecution once they step down. The Princeton Principles wisely take an agnostic position with respect to the future development of immunities rationae personae, suggesting that such immunities “may be in the process of erosion” and leaving open the possibility of further developments in this area.

⁵⁸ Charter of the United Nations,June 26, 1945, Can. T.S. 1955 No. 7 [hereinafter UN Charter].

⁵⁹ Ibid., Article 25.

⁶⁰ See, for example, Prosecutor v. Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case no. IT-94-1 -AR72, International Criminal Tribunal on the Former Yugoslavia [hereinafter ICTY] Appeals Chamber, October 2, 1995, relying, inter alia, on the principles laid down by the ICJ in Effect of Awards of Compensation Made by the United Nations Administrative Tribunal (1953-1954), [ 1954] I.C.J. Rep. at 47 (power to create tribunals). This conclusion has recently been conirmed in Prosecutor v. Milosevic, Decision on Preliminary Motions, November 8, 2001, Trial Chamber, Doc. IT-02-54.

⁶¹ ICTY Statute, annex to SC Resolution 827 (1993), reprinted 32 I.L.M. 1192 (1993) , Article 7(2); International Criminal Tribunal for Rwanda [hereinafter ICTR] Statute, annex to SC Resolution 955 (1994), reprinted 33 I.L.M. 1604 (1994) , Article 6(2).

⁶² UN Charter, supra note 58, Articles 25, 41, 49, and 103. See especially Article 103: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”

⁶³ Ibid., Articles 25, 41, 49, and 103. The situation is less clear with respect to diplomats or officials of a state not party to the UN Charter, although an argument can be made based on Article 2(6) of the UN Charter and Article 4 of Security Council Resolution 827, supra note 7, requiring that “all States shall cooperate fully with the International Tribunal … including the obligation of States to comply with requests for assistance or orders issued by a Trial Chamber under Article 29 of the Statute.” In any event, immunities may also be relinquished through a treaty in which the state pledges to cooperate with the ICTY. See, for example, the Dayton Peace Accords, November 21, 1995, reprinted 35 I.L.M. 75 ( 1996), Article IX, accessible at <http://www.yale.edu/lawweb/avalon/intdip/bosnia/day01.htm>, where parties pledge to cooperate fully with the ICTY.

⁶⁴ Prosecutor v. Kambanda, Judgement and Sentence, Case no. ICTR 97-23-S, September 4, 1998, accessible at <www.ictr.org>.

⁶⁵ Prosecutor v. Milosevic, Indictment, Case no. IT-02-54, May 24, 1999, accessible at <http://www.un.org/icty/indictment/english/mil-ii990524e.htm>.

⁶⁶ “Milosevic Indictment Threatens Peace Plan,” Toronto Star, May 28, 1999; “Indictment Was Poorly Timed,” Montreal Gazette, May 28, 1998.

⁶⁷ The ICC Statute, supra note 2, has been signed by 139 states.

⁶⁸ By July 1, 2003, one year after the statute’s entry into force, the number of ratifications had already reached eighty-nine, demonstrating the considerable momentum behind the court. See <www.icc.gc.ca> for updates on the number of ratifications. Of course, some significant countries remain unconvinced — see, for example,“US Notiication of Intent not to become a Party to the Rome Statute” (2002) 96 Am. J. Int’l L. 724 — but the global trend is otherwise an encouraging one.

⁶⁹ ICC Statute, supra note 2, Articles 5-9.

⁷⁰ The safeguards in the ICC Statute are too numerous to list, but examples include Articles 15-19, 22-24, 36, 40-47, 53-55, 57, 63-67, 72-73, 81-82, and 112.

⁷¹ ICC Statute, supra note 2, Article 86 (obligation to cooperate), Article 89 (surrender of persons to the Court), and Article 120 (no reservations).

⁷² See, for example, Kress, Claus and Lattanzi, Flavia, eds., The Rome Statute and Domestic Legal Orders, volume 1 (Baden Baden: Il Sirente, 2000).Google Scholar

⁷³ See, for example, Robinson, Darryl, “The Rome Statute and Its Impact on National Laws” in Cassese, Antonio et al., eds., The Rome Statute of the International Criminal Court — A Commentary (Oxford: Oxford University Press, 2002)Google Scholar; and see the study for the French Senate, La Responsabilité Pénale des Chefs d’Etat et de Gouvernement, September 2001, accessible at <http://www.igc.org/icc/html/French_Study.pdf>.

⁷⁴ Article 27(1) of the ICC Statute, supra note 2, contains the familiar principle that “official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute.”

⁷⁵ Similarly, Article 98(2) of the ICC Statute respects obligations under international agreements pursuant to which the consent of a sending state is required to surrender a person of that State to the Court. This refers to status of forces agreements.

⁷⁶ ICC Statute, supra note 2, Article 17 and Article 86.

⁷⁷ Ibid., Articles 27 and 86.

⁷⁸ This interpretation was conirmed in an informal document circulated by interested states after extensive discussions at the ICC Preparatory Commission (“Informal Paper by Canada and the United Kingdom” [on ile with author]). There were two distinct routes by which delegations reached this conclusion. Some delegations reached this conclusion by interpreting “third state” as referring only to non-party states. Others reached this conclusion on the grounds that ICC states parties have already relinquished any immunities against ICC proceedings by virtue of ratifying Article 27 and Article 88 and thus do not possess immunities “under international law” vis-à-vis the ICC. See Gaeta, supra note 14 at 992-95; Broomhall, supra note 14 at 128-50; and Kress, supra note 14 at 159-61.

⁷⁹ For further discussion, see Wirth, Steffen, “Immunities, Related Problems and Article 98 of the Rome Statute” (2001) 12 Crim. L. Forum 429.CrossRefGoogle Scholar

⁸⁰ For more information, see the Pinochet decision, supra note 3, which is discussed later in this article.

⁸¹ UN Charter, supra note 58, Articles 25, 41, and 103.

⁸² In such a case, the options are to seek a waiver, seek a Security Council referral, or wait for the person’s term in office to come to completion.

⁸³ Pinochet, supra note 3.

⁸⁴ Ibid. at 152 and 186-87.

⁸⁵ Ibid. at 113 and 177-78.

⁸⁶ Ibid. at 113 and 168; Torture Convention, supra note 12.

⁸⁷ The Pinochet rationale, supra note 3, adopted does not depend on “waiver” by treaty; instead it stipulates that acts condemned and prohibited as international crimes cannot at the same time be “official functions.” So the rationale should apply equally to customary international law prohibitions.

Several judges said that a single act of torture would not suffice and that the crime would have to constitute a crime against humanity, that is, “widespread or systematic torture as an instrument of state policy” (see Lord Hope at 144 and 150-51 ). On the other hand, Lord Hutton felt that a single act of torture would suffice (at 166). One possible way to reconcile this is to suggest that for states parties to the Torture Convention, a single act of torture sufices because the state has accepted the convention deinition. In addition, the principle applies to serious international crimes, namely, genocide, crimes against humanity, and war crimes. This conclusion is consistent with the conclusion reached by Cassese, supra note 14 at 864-65 and Kress, supra note 14 at 158-59.

⁸⁸ Pinochet, supra note 3. For pinpoint cites, reference will also be made to the page numbers in Brody, Reed and Ratner, Michael, eds., The Pinochet Papers: the Case of Augusto Pinochet in Spain and Britain (The Hague: Kluwer, 2000)Google Scholar, which also reproduces the decision.

⁸⁹ Pinochet, supra note 3 at para. 56; Brody and Ratner, supra note 89 at 83.

⁹⁰ Pinochet, supra note 3 at para. 58; Brody and Ratner, supra note 89 at 84.

⁹¹ Pinochet, supra note 3 at para. 63-65; Brody and Ratner, supra note 89 at 85-86.

⁹² Pinochet, supra note 3 at para. 63; Brody and Ratner, supra note 89 at 86.

⁹³ Pinochet, supra note 3 at para. 68; Brody and Ratner, supra note 89 at 86.

⁹⁴ ICTY Statute, supra note 61 .

⁹⁵ ICTR Statute, supra note 61 .

⁹⁶ Pinochet, supra note 3 at para. 68; Brody and Ratner, supra note 89 at 87.

⁹⁷ R. v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (Amnesty International and Others Intervening), (No. 1) [1998] 4 All E.R. 897 (H.L.).

⁹⁸ A re-hearing was necessitated by the perceived conflict of interest of one of the judges in the irst hearing: R. v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (Amnesty International and Others Intervening), (No. 2), [1999] 1 All E.R. 577 (H.L.).

⁹⁹ Pinochet, supra note 3 at 183.

¹⁰⁰ Ibid. at 163 (Lord Hutton).

¹⁰¹ Byers, Michael, “The Law and Politics of the Pinochet Case” (2000) 10 Duke J. Comp & Int’l L. 415 Google Scholar.

¹⁰² See, for example, Vienna Convention, supra note 22, Article 37(3), giving members of the service staff of a diplomatic mission immunities only “in respect of acts performed in the course of their duties.”

¹⁰³ See the second section in this article under the heading “Functional Necessity and the Consistent Rejection of any Exceptions to Immunities Ratione Personae.”

¹⁰⁴ See Wicquefort, supra note 35.

¹⁰⁵ Pinochet, supra note 3 at 152 (Lord Hope).

¹⁰⁶ Ibid. at 179 (Lord Millett).

¹⁰⁷ Cour de cassation — Chambre criminelle, Arrêt no. 1414 du 13 mars 2001, accessible at <http://courdecassation.fr/agenda/arrets/arrets/00-87215.htm>, holding that “la coutume internationale s’oppose à ce que les chefs d’Etat en exercice puissent, en l’absence de dispositions internationales contraires s’imposant aux parties concernées, faire l’objet de poursuites devant les juridictions pénales d’un Etat étranger” (author’s informal translation: “international custom forbids, in the absence of a contrary international provision binding on the parties concerned, that a serving head of state be subjected to prosecution before the criminal jurisdiction of a foreign state”).

¹⁰⁸ Order of March 4, 1999 (Doc. 1999/2723). See “Spain Rules It Has No Jurisdiction to Try Castro,” Agence-France Presse, March 8, 1999, Doc. 1999 WL 2560095.

¹⁰⁹ Tachiona v. Mugabe, 169 F. Supp. 259, US Dist. at 297, October 30, 2001. This case was about civil liability rather than criminal responsibility, but it canvassed various aspects of head of state and diplomatic immunity, including the complete immunity from criminal jurisdiction.

¹¹⁰ Amnesty International press release, “Amnesty International Calls on Denmark to Fulfill Its Obligations under the UN Convention against Torture,” August 14, 2001, accessible at <www.web.amnesty.org> and Howard Knowles, “Amnesty Demands Gillon Investigation,” Copenhagen Post, August 8, 2001 , accessible at <http://cphpost.periskop.dk/>. Amnesty International argued that the Vienna Convention did not immunize Ambassador Carmi Gillion (of Israel) from torture charges; but the Danish government concluded that diplomatic immunity prevented prosecution. See also “Lawyer Regrets French Decision on Burkina President’s Immunity from Prosecution,” October 13, 2001, transcript from the British Broadcasting Corporation [on ile with author], reporting on the Paris prosecution office’s rejection of torture charges against the serving president of the Burkina Faso president, on the grounds that such proceedings would violate international law.

¹¹¹ See, for example, Canada’s Crimes against Humanity and War Crimes Act, R.S.C. 2000, c. 24, s. 48, accessible at <http://www.parl.gc.ca/36/2/parlbus/chambus/ house/bills/government/C-19/C-19_4/C-19_cover-E.html>; or the United Kingdom’s International Criminal Court Act (U.K.) 2001 , c. 17, s. 23, accessible at <http://www.legislation.hmso.gov.uk/acts/acts2001/20010017.pdf>. See also the Canadian government’s testimony before the Standing Committee on Foreign Affairs, June 1 , 2000, accessible at <http://www.parl.gc.ca/ InfoComDoc/36/2/FAIT/Meetings/Evidence/faitev52-e.htm> at 1140 to 1205.

¹¹² Yerodia, supra note 3.

¹¹³ Article 7 of Belgium’s Loi relative à la répression des violations graves du droit international humanitaire [hereinafter Belgian Law], which was adopted on February 10, 1999, reprinted 38 I.L.M. 918 (1999).

¹¹⁴ Ibid., Article 5(3).

¹¹⁵ The Democratic Republic of the Congo Institutes Proceedings against Belgium Concerning an International Arrest Warrant Issued by a Belgian Examining Judge against the DRC’s Acting Minister for Foreign Affairs, ICJ Press Release, October 17, 2000, accessible at <http://www.icj-cij.org/icjwww/ipresscom/iprpencobe.html>.

¹¹⁶ Yerodia, supra note 3.

¹¹⁷ Ibid. at para. 75.

¹¹⁸ Ibid. at para. 56-58.

¹¹⁹ Ibid. at para. 58.

¹²⁰ Ibid. at paras. 51-60.

¹²¹ Ibid. at para. 53.

¹²² Ibid. at para. 55.

¹²³ This is not to suggest that it is inappropriate to consider rationales and policy implications underlying legal principles — indeed, the thesis of this article is the need to consider such implications — but such analysis must be a secondary process to evaluate or to reine rules found in recognized sources of international law.

¹²⁴ Yerodia, supra note 3 at paras. 60 and 61.

¹²⁵ Ibid. at para. 75 (Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal), accessible at <www.icj-cij.org>.

¹²⁶ Ibid. at para. 60. The ICJ judgment should be interpreted not as contradicting, but rather as passing in silence, on the Pinochet principle.

¹²⁷ Wirth, supra note 14 at 881.

¹²⁸ Cassese, supra note 14 at 872.

¹²⁹ See ibid. at 874; and Wirth, supra note 14 at 892.

¹³⁰ An alternative solution, to regard international crimes as inherently “private acts,” may raise more problems than it solves, as is discussed in Spinedi, Marina, “State Responsibility versus Individual Responsibility for International Crimes: Tertium Non Datur?” (2002) 13 Eur. J. Int’l L. 895.CrossRefGoogle Scholar

¹³¹ See the section in this article under the heading “Re-evaluate the Law of Non-Official Visits”.

¹³² See the comments in note 87. It is suggested here that ratification of treaties should not be pivotal since certain crimes are well established under customary international law. The rationale of Pinochet does not depend on “waiver” by treaty, but rather on the fact that a state can hardly claim that its “official functions” include actions that it renounces and condemns as serious international crimes.

¹³³ See the discussion earlier in this article under the heading “A Bridge Too Far: National Courts and Immunities Ratione Personae.”

¹³⁴ See the discussion in this article under the heading “Relinquishment of Immunities to International Tribunals and Courts.”

¹³⁵ As was noted earlier in this article, the United States has emphatically indicated that it does not intend to ratify and that it is opposed to the ICC. It remains to be seen whether the United States would go so far as to veto Security Council efforts to refer situations to the ICC.

¹³⁶ Vienna Convention, supra note 22, Articles 4 and 5.

¹³⁷ Ibid., Article 32.

¹³⁸ Ibid., Article 31(4).

¹³⁹ On the duty to prosecute generally, see, for example, Orentlicher, supra note 6; Edelenbos, Carla, “Human Rights Violations: A Duty to Prosecute?” (1994) 7 Leiden J. Int’l L. 5 Google Scholar; Roht-Arianna, Naomi, “Non-Treaty Sources of the Obligation to Investigate and Prosecute” in Roht-Arianna, Naomi, ed., Impunity and Human Rights in International Law and Practice (New York: Oxford University Press, 1995)Google Scholar; Scharf, Michael, “The Letter of the Law: The Scope of the International Legal Obligation to Prosecute Human Rights Crimes” (1996) 59 Law … Contemporary Problems 41 CrossRefGoogle Scholar.

¹⁴⁰ See, for example, the Torture Convention, supra note 12, Article 6; and the Geneva Convention (IV), supra note 10, Article 146.

¹⁴¹ Some states may object that this sounds like a novel obligation, but it is important to recall that the initial obligation was to prosecute; so the burden of following up with another state is merely a “next best” alternative flowing from that duty.

¹⁴² See Vienna Convention, supra note 22, preamble, para. 4. It is of course undesirable for high officials to be subject to frivolous prosecutions, but the same is true for everyone, yet this is not seen as necessitating immunities for everyone in the world. Vacationing officials should be in the same position as former officials and indeed as every other citizen. Determining the appropriate rule involves a balancing of risks or interests and in this case it seems better to side with accountability.

¹⁴³ See, for example, The Schooner Exchange v. M’Faddon, 11 U.S. (7 Cranch) at 137 ( 1812 ): “A nation would justly be considered as violating its faith, although that faith might not be expressly plighted, which should suddenly and without previous notice, exercise its territorial powers in a manner not consonant to the usages and received obligations of the civilized world.”

¹⁴⁴ Quoted in Yerodia, supra note 3 at para. 68 [emphasis added].

¹⁴⁵ This was the wording originally appearing in the UK legislation, which may have reflected customary international law. There was a suggestion by a member of Parliament to change the provision on the rather curious grounds about concerns about heads of state outside of the United Kingdom, and agreement was reached to go along with the change. See Pinochet, supra note 3 at 191-92.

¹⁴⁶ United Nations Convention on Special Missions, December 16, 1969, Ann. to UN General Assembly Resolution 2530 (XXIV), December 8, 1969, Article 21 [emphasis added].

¹⁴⁷ American Law Institute, Restatement of Foreign Relations Law, Third Edition (St. Paul: American Law Institute, 1986) at 464, n. 14.

¹⁴⁸ Vienna Convention, supra note 22, Article 40.

¹⁴⁹ Even if one were to conclude that the special status of the head of state justiied immunity ratione personae even during private visits — a proposition that is doubtful — this should not be extended without reflection to other officials such as heads of government or foreign ministers. Sir Watts, Arthur, “The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers” (1994) 3 Rec.des Cours 1 at 109Google Scholar, states:

Although it may well be that a Head of State, when on a private visit to another State, still enjoys certain privileges and immunities, it is much less likely that the same is true of heads of government and foreign ministers. Although they may be accorded certain special treatment by the host State, this is more likely to be a matter of courtesy and respect for the seniority of the visitor, than a reflection of any belief that such a treatment is required by international law.

¹⁵⁰ The warrant specifically allowed for immunity during official visits to Belgium but did not clearly specify that such immunity would be respected during official visits to other countries, thus producing the “chilling effect” on the minister’s ability to perform his representational duties.

¹⁵¹ Yerodia decision, supra note 3 at paras. 1-3 (Dissenting Opinion of Judge Al-Khasawneh); paras. 18-21 (Dissenting Opinion of Judge Van den Wyngaert); and para. 14 (Dissenting Opinion of Judge Oda), which are all available at <www.icj-cij.org>.

¹⁵² For example, the Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal agrees that “a Minister of Foreign Affairs is entitled to full immunity during official visits” (ibid. at para. 83), but finds that “whether he is also entitled to immunities during private travel and what is the scope of any such immunities, is far less clear” (at para. 86).

¹⁵³ Ibid. at para. 6 (Separate Opinion ofJudge Koroma).

¹⁵⁴ See the discussion in this article under the headings “Functional Necessity and the Consistent Rejection of Any Exceptions to Immunities Ratione Personae” and “A Bridge Too Far: National Courts and Immunities Ratione Personae.”

¹⁵⁵ Given the intractable problems of abuse of diplomatic immunity, it would also be desirable to consider similar exceptions for serious domestic crimes, such as murder and sexual assault, committed by diplomats in the host state. If the agreement contained the safeguards suggested here, it might overcome some of the preoccupations that have hitherto necessitated absolute immunities.

¹⁵⁶ For example, Zimmerman, Andreas, “Sovereign Immunity and Violations of Jus Cogens — Some Critical Remarks” (1995) 16 Mich. J. Int’1 L. 433 Google Scholar, who notes potential problems flowing from the vagueness of even jus cogens prohibitions. For example, the European Court of Human Rights jurisprudence regards the “death row phenomenon” as “inhuman treatment,” an interpretation with which the United States almost certainly does not agree. Such interpretation, while acceptable in a human rights context, would be unacceptably broad in an international criminal law context.

¹⁵⁷ Considerable precision and clariication is already provided in the deinitions contained in the ICC Statute, supra note 2, Articles 5-8, which are further elaborated in the ICC Elements of Crimes, UN Doc. ICC-ASP/1/3, accessible at <www.un.org/law/icc/asp/aspfra.htm>. These are explained in further detail in Lee, Roy S. et al., eds, The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Ardsley: Transnational, 2001)Google Scholar.

¹⁵⁸ See discussion in note 39 of this article.

¹⁵⁹ Yerodia decision, supra note 3 at para. 75 ( Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal).