LAW OF HEAD OF STATE IMMUNITY VIS A VIS THE PRINCIPLE OF INDIVIDUAL CRIMINAL LIABILITY

Luganje Anthony Nyanje () and Dr. Ronald Rogo ()

International Journal of Law and Policy, 2017, vol. 1, issue 2, 21 - 45

Abstract: Purpose: Evaluate the relevance of the Law of Head of State Immunity against the principle of individual criminal responsibility.Methodology: This descriptive and analytical discourse made constructive usage of both primary and secondary data. Primary data entailed basic documents viz; Constitutions, statutes, treaties as well the relevant resolutions by the United Nation. Secondary data comprised majorly of publications by most highly qualified publicists in the nature of Journals and ArticlesResults: In the light of the foregoing research, it is true to assert that the in as far as the ICC jurisdiction is concerned; there exists a conflict between the principle of individual immunity and that of executive immunity. This conflict is resolved by the operation of a jus cogens principle of ICR with the effect of nullifying a mere international customary rule of jurisdictional immunities. Further, a party to the Rome Statute is bound by its provision among which is article 25 and 27 of the former. Consent to be bound by article 25 and 27 of the Rome Statute is an equivalence of a waiver of such immunities.Unique contribution to theory, practice and policy: The ultimate object to resolution of the conflict between the two doctrines is this. That the "˜most serious crimes of concern to the international community of states must not go unpunished.' Further that the objects and purpose of international criminal justice not to be defeated. The Judgement of the International Military Tribunals, Trials of the Major War Criminals case held that sole rationale of international criminal law regime is to attribute criminal liability to individuals without exception to their official capacity and most importantly to defeat the defence of official capacity or act of state. The position is further buttressed by an internal provision of fundamental importance, article 143 (4) of the Constitution of Kenya. This expressly waives the principle of executive immunity attached to the president for crimes committed within the jurisdiction of the ICC. Thus if this object must be met, the principle of executive immunity must not bar the principle of individual criminal responsibility.

Keywords: State immunity; criminal responsibility; law; tribunal; trials; war criminals (search for similar items in EconPapers)
Date: 2017
References: Add references at CitEc
Citations:

Downloads: (external link)
https://iprjb.org/journals/index.php/IJLP/article/view/340 (application/pdf)

Related works:
This item may be available elsewhere in EconPapers: Search for items with the same title.

Export reference: BibTeX RIS (EndNote, ProCite, RefMan) HTML/Text

Persistent link: https://EconPapers.repec.org/RePEc:bdu:ojijlp:v:1:y:2017:i:2:p:21-45:id:340

Access Statistics for this article

More articles in International Journal of Law and Policy from IPRJB
Bibliographic data for series maintained by Chief Editor ().