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It is well accepted in international law that Heads of State, Heads of Government and ministers of Foreign Affairs enjoy immunity from prosecution by virtue of the office that they hold. This immunity extends to acts committed in an official capacity whilst in office, after they have left office. In recent years, however, this concept of functional immunity has been challenged by allegations that former government officials have committed international crimes whilst in office. In what has been hailed as a ‘landmark’ decision, the Federal Criminal Court of Switzerland considered that the former Algerian Minister of Defence, who is charged with having committed war crimes and torture whilst in office in 1992-1993, is not entitled to immunity before the Swiss courts. In reaching this conclusion, the Court considered that it would be contrary for international law to prohibit genocide, war crimes and crimes against humanity as fundamental norms but then to allow for a broad interpretation of functional immunity the result of which would be that beneficiaries of this immunity would be immune from prosecution even where they allegedly committed such crimes. 

Indonesia illegally occupied East Timor from 1975 until 2002. Members of the Indonesian Armed Forces (TNI) worked together with local police forces and pro-autonomy militia groups to perpetrate a campaign of violence against suspected independence supporters.

The Accused, Florencio Tacaqui, was an advisor and member of the Sakunar militia group, which operated in Passabe. In 1999, both prior to and after s referendum in August in which the Timorese people voted overwhelmingly in favour of independence, it carried out a number of attacks. In particular, the Tacaqui was involved in the abduction, detention and beating of approximately 40 independence supporters at the home of a Sakunar chief. He was also involved in the attack on a village in which numerous individuals died, homes were burnt down and livestock stolen. He was convicted for 4 counts of crimes against humanity and sentenced to 12 years’ imprisonment. The Special Panel was unable to convict him for the Passabe massacre in which 47 individuals were marched from their homes to a remote area and executed. Witness testimony was contradictory and the evidence inconclusive to support his presence at the scene. The remaining 10 individuals with whom Tacaqui was indicted remain at large. 

Prior to becoming President of the greater Kigali branch of the Mouvement Révolutionnaire National pour la Démocratie er le Développement (MRND) political party in 1993, the Accused, Laurent Semanza, served as Bourgmestre (mayor) of Bicumbi commune. On 15 May 2003, Trial Chamber III of the ICTR found him guilty of complicity in genocide, extermination, torture and murder as crimes against humanity. Semanza submitted 22 grounds of appeal against his convictions. The Appeals Chamber dismissed his argument that he should be acquitted of all charges because the Trial Chamber was biased against him.

Instead, the Appeals Chamber accepted the Prosecutor’s argument and convicted Semanza for ordering, rather than aiding and abetting, the massacre of Tutsis at Musha church. Because the Accused had more serious culpability for the crimes at the church, the Appeals Chamber increased his sentence from 15 to 25 years  on Counts 7 and 13 of the indictment. More specifically, the Chamber affirmed the conviction for genocide charges and increased his sentence by 10 years for ordering the murder, torture and rape of Tutsi civilians at the church. The Appeals Chamber also reversed the Trial Chamber’s acquittal on the charges of serious violations of Common Article 3 and Additional Protocol II of the Geneva Conventions. Semanza was sentenced to a total of 35 years imprisonment. 

Following the coup by members of the Revolutionary United Forces in Sierra Leone, the democratically elected government of President Kabbah was replaced by a military junta headed by the Armed Forces Revolutionary Council (AFRC) in 1997.

The Accused, Brima, Kamara and Kanu, were leading members of the fighting forces of the AFRC throughout the armed conflict until the hostilities ended with the Lomé Peace Accord in July 1999. Trial Chamber II of the Special Court for Sierra Leone found all three Accused responsible for ordering, committing, planning the crimes perpetrated by AFRC forces against civilians, including murder, rape, enslavement, collective punishment, mutilation, burning of civilian property and use of child soldiers in the hostilities. The Accused were also liable as the superiors in charge of AFRC forces for failing to prevent the rapes committed by their subordinates. 

The case relates to eight Guantanamo detainees who challenged the determination of the Combatant Status Review Tribunal (CSRT) that they are “enemy combatants”. The case comprises the petitions of Haji Bismullah on the one hand, and of Huzaifa Parhat and six other men on the other.

On 20 July 2007, the US Court of Appeals ruled that that, in order to perform a meaningful review of the CSRT determination, it must have access to the information that was available to the CSRT as well. The US Government requested a rehearing or, in the alternative, a rehearing en banc.

On 3 October 2007, the Court of Appeals denied the US Government’s request on both aspects raised by it. First, the Court of Appeals found that the scope of the record that will be reviewed must include all the Government Information. Second, the extent to which the Government may withhold information from the detainee’s counsel should not affect the burden vested upon the Government of producing the requested Government Information.