Legal Immunity and the Pinochet Case (a warning to “Strongmen” violators of Human Rights)

Generally, immunity prohibits the prosecution of government officials for violating any civil or criminal violations. The three bases of immunity are state immunity, functional immunity, and personal immunity. State immunity argues state sovereignty prevents state officials from being prosecuted by another state for violating any law. Sovereign immunity is a product of treaty law, customary international law, and domestic law. The primary domestic statute governing Jurisdictional Immunity, by determining whether an American court will afford a foreign state immunity, is the U.S. Foreign Sovereign Immunities Act. Conventions on Jurisdictional Immunities of States include the UN. Convention on Jurisdictional Immunities of States, the European Convention on State Immunity, and the UN Charter — “Organization is based on the principle of sovereign equality of all its [member states].” Cases relating to the issue of state immunity include Prefecture of Voiotia v. The Federal Republic of Germany (the Distomo case), where an Italian court found that Germany was liable to compensate an Italian citizen for labor violations occurring during WWII. In Voitia, Germany brought the case to the ICJ and argued the state was entitled to sovereign immunity. The ICJ held for Germany, signifying that regardless the heinous crime, a state is immune because of its sovereignty. On the contrary, in Princz v. Federal Republic of Germany, the court was the first to find that sovereign immunity must give way in the face of grave human rights abuses. Although Princz ultimately lost, the Princz court provided an approach to sovereign immunity that points the way to a comprehensive analysis rooted in the basic values of the international legal order.

Functional immunity is a construct of customary international law, where current or former state officials are deemed immune from prosecution, extradition, and compelled testimony against inhumane conduct if the alleged conduct occurred in the performance of their official duties. Functional immunity does not end when the person leaves office, because it is focused on the conduct and not solely the individual. The rational of functional immunity is that state officials should not have to compromise their decisions based on the interest of their government, in fear of later being penalized and brought to court. An analysis of the conduct requires courts to identify on a scale from purely private to official acts. Functional immunity conflicts with the International Criminal Court statute the “Rome Statute,” and the ‘Convention Against Torture,” both of which say the sitting heads of state are not immune from prosecution against crimes made against humanities. One example of the codification of functional immunity is the Vienna Convention on Consular Relations Article 43 Immunity from the jurisdiction. This article grants consular officers and employees’ immunity for conduct or acts “performed in the exercise of consular functions.” The ICJ views functional immunity as an extension of state immunity, as evidenced in Certain Questions of Mutual Assistance. This doctrine of immunity has been deteriorating in recent years. Additionally, in 2008, when France prosecuted Donald Rumsfeld for the crimes committed in Guantanamo Bay, Donald Rumsfeld argued he was acting under his official capacity as the Secretary of Defense. Donald Rumsfeld was immune from prosecution under functional immunity even though the charges against him were for heinous crimes. Further, during the period of civil conflict in Sri Lanka, the United States initiated suit against the President of Sri Lanka, and he was later found to be immune under functional immunity.

Finally, personal immunity is the immunity granted to certain officials because of the office they hold, rather than in relation to the actions they have committed. This type of immunity is extended to diplomatic agents and their families posted abroad. Private residence, papers, correspondence, and property are inviolable. Personal immunities are extended to cover the personal activities of an official including immunity from arrest and detention, criminal jurisdiction, and civil and administrative jurisdiction of the host state. A state is however able to declare the person persona non grata. Like functional immunity, personal immunity protects state officials from being brought into a foreign jurisdiction and being accused of civil or criminal violations. Like function immunity, personal immunity is also in conflict with the International Criminal Court statute the “Rome Statute,” which says the sitting heads of state are not immune from prosecution for conducting torture. However, unlike functional immunity, personal immunity does not extend beyond the time the official is in office, the immunity exists only when the official is working under the capacity of their function.

Universal Jurisdiction explains that a state has jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism, even where [no other] bases of jurisdiction … is present. In other words, Universal Jurisdiction gives all states the responsibility of prosecuting the individuals who commit heinous crimes, because the matters can be heard by any domestic court. Immunity can limit the authority of Universal Jurisdiction by prohibiting states from holding individuals accountable for their crimes against humanities under the claims of sovereign, functional or personal immunity. In the Pinochet case, however, the authority of immunity excluded torture and murder as being part of the official function of government officials and therefore did not immune Pinochet from prosecution. In the Pinochet case, an indictment was brought against Pinochet in Spain under Universal Jurisdiction for the heinous crimes committed while he was President of Chile. In defense, Pinochet argued that under sovereign immunity he could not be charged for the acts he committed under his official capacity, and the court ruled in favor of Pinochet. On appeal Pinochet was denied sovereign immunity on the principle that torture and murder cannot be part of an official function and therefore he is not protected under sovereign immunity. Following an issue with a biased judge on the panel, the third and final trial against Pinochet held that under the C.A.T., Pinochet was not immune from prosecution for conducting crimes against humanities because the C.A.T. prohibited government officials from committing torturous acts. Thus, under the support of Universal Jurisdiction, the Pinochet case changed the landscape on immunity by not allowing Pinochet to hide behind the shield of neither sovereign immunity, functional immunity, or personal immunity.