an international crime was committed by a State or in the name of a State, because in conferring this mandate upon themselves, they are exceeding the powers recognised by international law. With respect to immunity for former Heads of State for crimes committed while they were in power, the United Kingdom's House of Lords ruled that Senator Augusto Pinochet was not entitled to immunity in any form for the acts of torture committed under his orders when he was Chile's Head of State. The House indicated that because the alleged acts of torture could not be considered as constituting part of the functions of a Head of State, these acts were not protected by any immunity.
States Parties to the Rome Statute need not eliminate all existing forms of immunity for their representatives. The Statute simply obliges them to provide an exception to the general rule, if they have not already done so.
Obligations
When the ICC requests that a State Party surrender its Head of State or other official because he or she is accused of one of the crimes listed under the Statute, the State in question will not be able to invoke any immunities under national law as a reason for refusal to deliver that person. The State must surrender the person to the ICC, in accordance with articles 59 & 89.
Implementation
a) Provide exceptions to absolute immunity
Where their constitutions provide for absolute immunity for any State official, article 27 may necessitate constitutional or legislative amendments for States Parties. They may need to establish an exception to this absolute immunity, for their Heads of State and any other officials that would otherwise be immune from criminal prosecution. This amendment could be minor, and may simply consist of the addition of a provision making an exception to the principle of immunity for the Head of State or other officials, should they commit one of the crimes listed under the Statute.
However, several European States have decided that they do not need to amend their constitutions, in order to provide for an exception to immunities under national law. They believe it is already implicit in their constitutions. If the unlikely situation arises where the ICC requests the surrender of an official, such as their Head of State, a purposive interpretation of the relevant constitutional provision would allow for that official to be surrendered, given that the purpose of the ICC is to combat impunity for "the most serious crimes of concern to the international community as a whole". If a State official commits such a crime, this would probably violate the underlying principles of any constitution. Therefore, other States may be able to surrender State officials to the ICC, notwithstanding the protection that their constitutions may appear to offer to the official under normal circumstances.
b) Ensure that State courts can prosecute ICC crimes (Complementarity)
A State could also make provisions to ensure that its own courts can prosecute the Head of State for the commission of crimes within the jurisdiction of the ICC. The advantage of this approach is that, as a result of the principle of complementarity running through the Statute, the State would likely exercise jurisdiction in this matter. Another advantage is that it may be easier for States to prosecute their leaders themselves.
Whatever solution is adopted, immunity should no longer be absolute and should not prevent the ICC from prosecuting the perpetrators of the international crimes listed under the Statute.
No statute of limitations
Description
The ICC may not investigate and try crimes that are committed before the Statute enters into force. However, with respect to conduct occuring after the Statute enters into force, perpetrators of crimes covered by the S
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