Immunities, Amnesties, Defenses, and Excuses

• Pages: 249-275
• Author: Beth Van Schaack,Ronald C. Slye

249

Chapter 9

IMMUNITIES, AMNESTIES,

DEFENSES, AND EXCUSES

Although opportunities to hold individuals accountable for

violations of international crimes have increased tremendously in the

last century, potential defendants are not without their own arsenal

of defenses. Most of the defenses found in domestic legal systems—

such as mistake of law, mistake of fact, incapacity, consent, and self-

defense—are also found in the jurisprudence of international

criminal law (ICL). We focus here on those defenses that have been

most commonly raised in ICL proceedings, or those that raise special

issues at the international level. In particular, individuals accused of

the commission of international crimes may benefit from the

application of immunities, amnesties, and a variety of defenses that

predate the development of modern ICL. The impact of the first two—

immunities and amnesties—have been weakened by the

jurisprudence of the human rights and ICL courts (with the

significant exception of combatant immunity, which remains a

hallmark of international humanitarian law (IHL)). Most forms of

immunity and many amnesty laws are now viewed with skepticism

by the human rights and international justice advocacy communities,

although amnesties are still frequently enacted by states to facilitate

the end of a dictatorship, an armed conflict, or atrocities by armed

actors. Excuses, a third form of defense, play a similar role at the

international level as they do in a domestic system—they lessen, and

sometimes negate, liability for an otherwise illegal act.

1

All of these exceptions to criminal accountability are justified as

furthering important social values. Immunities protect the necessary

and legitimate functions of government officials by, for example,

shielding such officials from politically-motivated or otherwise

distracting and disruptive legal claims and charges. Combatant

immunity—which provides that privileged combatants cannot be

prosecuted for lawful acts of war—reflects the fact that combatants

act with the approval of the state that deploys them into combat and

polices the distinction between permissible and impermissible

warfare. Amnesties are justified as means to achieve peace and social

1

Some defenses (e.g., self-defense or necessity) take the form of justifications

for criminal conduct; i.e., they recognize the illegality of the conduct but provide a

defense for socially beneficial outcomes. Other defenses are more in the nature of

excuses—they offer a defense because the defendant is deemed not fully responsible

for unlawful actions due to factors that remove moral blame (e.g., duress, insanity, or

other forms of incapacity).

250

INTERSECTIONS

Pt. II

stability by providing a “carrot” to armed actors to lay down their

arms and, at times, to participate in transitional mechanisms of

accountability, reparation, and truth-seeking. Excuses (such as self-

defense) are justified as furthering fundamental moral values and

ensuring that criminal liability only attaches if there is true fault on

the part of the defendant.

A. Immunities

The immunities from legal process historically afforded to

diplomats, other state officials, and heads of state have all eroded in

the last few decades. Defenses that once provided absolute protection

to official actors under both domestic and international law now

appear to provide little, if any, protection for violations of ICL,

especially before international tribunals. The Rome Statute of the

International Criminal Court (ICC) with its categorical rejection of

most immunities, the transnational prosecutions of Augusto

Pinochet (Chile) and Hissène Habré (Chad), the international

prosecutions of Charles Taylor (Liberia) and Omar Al Bashir

(Sudan), recent decisions of national courts and the International

Court of Justice (ICJ), the work of the International Law Commission

(ILC), and the enactment of qualified immunity statutes all reflect

the weakening of official state immunities for certain international

crimes. As noted later, exceptions to this general trend are the

doctrine of combatant immunity under IHL, although its application

to the global “war on terror” remains contested, and head of state

immunity, which continues to be applied by domestic courts.

1. Functional and Personal Immunities

Under international law, there are two general types of

immunity enjoyed by state officials: functional and personal.

Functional immunity protects an individual from liability for conduct

performed on behalf of the state, or “official acts,” and is also referred

to as immunity ratione materiae, or subject matter immunity. Thus,

a state official who engages in an ordinary criminal act for his or her

own personal benefit (for example, theft or sexual assault) will not be

protected from liability by functional immunity. Officials continue to

enjoy functional immunity for official acts taken while in office even

after they are no longer in government. Debate continues as to what

types of conduct constitutes “official acts.” Courts, the ILC, and states

negotiating new institutions are moving in the direction of rejecting

functional immunities for the commission of international crimes.

Personal immunities—also referred to as immunity ratione

personae—attach to certain state personnel by virtue of the office

they occupy and provide a defense to legal process regardless of the

nature of the act in question (official or personal). In contrast to