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Immunity from prosecution is a doctrine of international law that

allows an accused to avoid prosecution for criminal offences.
Immunities are of two types. The first is functional immunity, or
immunity ratione materiae. This is an immunity granted to people
who perform certain functions of state. The second is personal
immunity, or immunity ratione personae. This is an immunity
granted to certain officials because of the office they hold, rather
than in relation to the act they have committed.

Functional immunity[edit]
Functional immunity arises from customary international
law and treaty law and confers immunities on those performing acts
of state (usually a foreign official). Any person who in performing an
act of state commits a criminal offence is immune from prosecution.
This is so even after the person ceases to perform acts of state.
Thus it is a type of immunity limited in the acts to which it attaches
(acts of state) but will only end if the state itself ceases to exist. This
type of immunity is based on respect for sovereign equality and
state dignity.
The offices usually recognised as attracting this immunity are Head
of State or Head of Government, senior cabinet members, Foreign
Minister, and Defence Minister.[1] Such officers are immune from
prosecution for everything they do during their time in office. 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 a presently serving Head of State at the
time the proceedings were brought.[2] Other examples are the
attempts to prosecute Fidel Castro in Spain and Jiang Zemin in the
USA.

However, the moment accused leaves office, they are liable to be

prosecuted for crimes committed before or after their term in office,
or for crimes committed whilst in office in a personal capacity
(subject to jurisdictional requirements and local law). Pinochet was
only able to come to trial because Chile and the UK had both
signed and ratified the UN Convention Against Torture through
which such immunities were waived.
It may be the case that functional immunity is itself being eroded. 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. In any case, Taylor had ceased to be an
incumbent Head of State by the time of the court's decision so the
arresting authorities would have been free to issue a fresh warrant
had the initial warrant been overturned. Nevertheless, this decision
may signal a changing direction in international law on this issue.
Recent developments in international law suggest that this type of
immunity, whilst it may be available as a defence to prosecution for
local or domestic crimes or civil liability, is not a defence to an
international crime. (International crimes include crimes against
humanity, war crimes, and genocide). This has developed in the
jurisprudence of the International Criminal Tribunal for the Former
Yugoslavia, particularly in the Karadzic, Milosevic,
and Furundzija cases (though 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). The reasons commonly given for why this immunity is not
available as a defence to international crimes is straight forward: (1)
that is genocide, war crimes and crimes against humanity are not
acts of state. Criminal acts of the type in question are committed by
human actors, not states; and (2) we cannot allow the jus
cogens nature of international crimes, i.e. the fact that they are nonderogable norms, to be eroded by immunities.
However, the final judgment of the ICJ regarding immunity may
have thrown the existence of such a rule limiting functional
immunities into doubt. See in this respect the criticism of the ICJ's
approach by Wouters, Cassese and Wirth among others, though
some such as Bassiouni claim that the ICJ affirmed the existence of
the rule.
Regarding claims based on the idea that a senior state official
committing International crimes can never be said to be acting
officially, as Wouters notes This argument, however, is not
waterproof since it ignores the sad reality that in most cases those
crimes are precisely committed by or with the support of highranking officials as part of a states policy, and thus can fall within
the scope of official acts. Academic opinion on the matter is divided
and indeed only the future development of International Customary
law, possibly accelerated by states exercising universal
jurisdiction over retired senior state officials, will be able to confirm
whether state sovereignty has now yielded partially to
internationally held human rights values.

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 enjoyed
official immunity under customary international law, and they further
claimed that the immunity exists after the official has left office. [3]

Personal immunity[edit]
See also Diplomatic immunity
This type of immunity arises from customary international
law and confers immunity on people holding a particular office
from the civil, criminal, and administrative jurisdiction. This
immunity is extended to diplomatic agents and their families
while posted abroad (and is also valid for their transfer to or from
that post, and is only valid for the country to which they are
posted). Under personal immunity, private residence, papers,
correspondence, and property of an official enjoying personal
immunities are inviolable.
According to Cassese (2005), personal immunities are extended
to cover personal activities of an official, including immunity from
arrest and detention (though the host state may declare the
person persona non grata), immunity from criminal jurisdiction,
immunity from the civil and administrative jurisdiction of the host
state. No immunities hold for private immoveable property unless
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 where the official
has voluntarily submitted to the proceedings. Example in the
case of Miles Agha, Mazen Agha who is currently residing in

Dallas TX. Personal immunities cease with the cessation of the

post.
This type of immunity is not for the officials personal benefit but
is based on the need for states to function effectively and hence
not be deprived of their most important officials.

Cases of overlap[edit]
When a person, who enjoys a personal immunity and has
committed a criminal act covered also by functional immunity,
leaves office, the personal immunity is removed as usual. This is
what happened in the Pinochet case before the House of Lords.
Senator Pinochet was only able to be extradited to face charges
that were not caught by the functional immunity (and also met
the separate tests for extradition under English law).