Search results

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. 

In March 2003, Phil Pritchard and Toby Olditch, peace activists, entered the bases of the Royal Air Force (RAF) and tried to disable the planes located there. They acted in an attempt to prevent a crime by the U.K. and the U.S., namely the preparation of a war against Iraq. Two other activists, Margaret Jones and Paul Milling, also entered the RAF base. All the activists were charged in the U.K. In their defence, they claimed that the actions of the U.K. and the U.S. were illegal. Their defence was rejected by the English courts because the alleged crime was a crime under international law but not under English criminal law.

On 1 December 2003, Trial Chamber II of the ICTR sentenced Kajelijeli to two concurrent life terms for genocide and extermination as a crime against humanity and to an additional 15 years imprisonment for direct and public incitement to commit genocide. All three sentences were to run concurrently.

The Appeals Chamber overthrew Kajelijeli's cumulative convictions for genocide and extermination as a crime against humanity under Counts 2 and 6 insofar as they were based upon a finding of command responsibility. However, the Appeals Chamber found that the Trial Chamber was required to take its finding on Kajelijeli’s superior position (Article 6(3)) into account at sentencing as an aggravating factor. The Appeals Chamber found that the Trial Chamber had done so. The appeal was dismissed in all other respects.

However, the Appeals Chamber ruled that in view of the serious violations of his fundamental rights during his arrest and detention in Benin and at the UN detention facility from 5 June 1998 to 6 April 1999, the two life sentences and the 15 year sentences which were to run concurrently imposed by the Trial Chamber should be converted into a single sentence of imprisonment for 45 years. The Appeals Chamber ordered that Kajelijeli be given credit for time already served in detention.

Ten men were certified by the Secretary of State as suspected international terrorists and were detained in the Belmarsh prison in London. The certification was made on the basis of information obtained by torture (infliction of severe pain or suffering on a person in order to obtain information). The men appealed their certification and claimed that the tainted information should not have been admitted. The House of Lords held that such information, indeed, should not have been admitted and allowed the appeals.

Abimael Guzmán was the founder of the Shining Path, a guerrilla group in Perú. The aim of the Shining Path was to overthrow the Peruvian government. Between 1980 and 2000, the Shining Path was responsible for an extensive campaign of violence, including the killings of thousands of people.

Guzmán was arrested in 1992, and in the same year, a secret military court sentenced him to life imprisonment. This decision was found to have been based on unconstitutional laws in 2003, and resulted in the retrial of Guzmán and the other Shining Path leaders. The charges included terrorism, murder and other offences. The lower Peruvian court found Guzmán guilty of terrorism and other offences, sentencing him, and his second in command, Elena Iparraguirre, to life imprisonment. The other ten co-defendants were also found guilty, and received sentences between 24 and 35 years of imprisonment.