Immunity from prosecution (international law)

For example, an English court held that a warrant could not be issued for the arrest of Robert Mugabe on charges of international crimes on the basis that he was serving as head of state at the time that the proceedings were brought.

The indictment in 1998 in Spain (and subsequent arrest in the UK) of Chile's Pinochet was a landmark decision by European judges and the UK's House of Lords, which set aside functional as well as local immunities,[d] by ruling that the crimes Pinochet was accused of fell within the scope of the United Nations Convention against Torture, being international crimes so heinous that they are: The principle of depriving immunity for international crimes was developed further in the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia, particularly in the Karadzic, Milosevic, and Furundzija cases (but care should be taken when considering ICTY jurisprudence due to its ad-hoc nature).

This was also the agreed position as between the parties in their pleadings in the International Court of Justice case concerning the arrest warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium).

In 2004 the Appeals Chamber of the Special Court for Sierra Leone held that indicted Liberian president Charles Taylor could not invoke his head of state immunity to resist the charges against him, even though he was an incumbent head of state at the time of his indictment.

However, this reasoning was based on the construction of the court's constituent statute, that dealt with the matter of indicting state officials.

It is worth noting that the decisions of the Spanish and UK courts in relation to Pinochet were based directly on existing domestic law, which had been enacted to embody the obligations of the treaty.

Although a state party to the treaty, Chile itself had not enacted such laws, which define the specified international crimes as crimes falling within the domestic criminal code and making them subject to universal jurisdiction, and thus Chile could only prosecute on the basis of its existing criminal code – murder, abduction, assault etc., but not genocide or torture.

In November 2007, French prosecutors refused to press charges against former US Secretary of Defense Donald Rumsfeld for torture and other alleged crimes committed during the course of the US invasion of Iraq, on the grounds that heads of state, heads of government and foreign ministers all enjoyed official immunity under customary international law, and they further claimed that the immunity exists after the official has left office.

No immunities hold for private immoveable property unless it is held on behalf of the sending state for the purposes of the mission, issues of succession, professional or commercial activity exercised outside of official functions, or the official has voluntarily submitted to the proceedings.