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A corollary of the obligation to respect the sovereignty of other States is the recognition of the immunities of States and State officials. This chapter examines the immunities enjoyed by States from the jurisdiction of foreign courts and from execution proceedings against their property and assets. The discussion addresses the issue in general terms and then specifically tackles two issues of significant practical importance, namely the operation of State immunity in employment disputes and in cases where violations of peremptory norms are at stake. It also analyses the functional and personal immunities of certain types of State official, namely diplomatic and consular agents, as well as high-ranking officials, such as Heads of State and Government and Ministers of Foreign Affairs.

This chapter surveys the process of emergence of human rights law in the post-1945 era, focusing on the major milestones, the 1948 Universal Declaration of Human Rights, the two 1966 International Covenants, and the establishment of several regional mechanisms in Europe, the Americas, and Africa. It emphasizes the tension between traditional international law and the development of human rights as a ground-breaking doctrine after the Second World War. In essence the human rights doctrines force States to give account of how they treat all individuals, including their nationals; this make States accountable for how they administer justice, run prisons, and so on. Potentially, it can subvert their domestic orders and requires them to adhere to minimum standards agreed at international level. As a further consequence, human rights doctrines have altered the traditional configuration of the international community as driven only by the interests of States.

One feature of the Special Tribunal for Lebanon (‘STL’) differentiating it from other international criminal tribunals (except for the Nuremberg International Military Tribunal) is that its Statute allows for trials in absentia. The Statute permits such trials when an accused failed to appear in court or even to appoint a defence lawyer, but only on the condition that, where the indictment could not be served or notified to the accused, it was duly publicized through the media or communicated to the state of residence or nationality of the accused. Following the case law of the European Court of Human Rights, Article 22(3) of the STL Statute allows for retrial, except where an absent defendant was represented at trial by counsel of his or her own choosing. The author argues this right to retrial should not be applied either where (i) the accused expressly waived in writing his right to be present, but then failed to appoint counsel of his choosing; or (ii) a state's failure to hand the accused over to the STL does not cure the accused's refusal to voluntarily surrender to the STL. She also argues that the right of retrial following trials in absentia ought to accrue to Lebanese courts, notwithstanding Article 5(1) of the Statute, which seems to prohibit Lebanese courts retrying individuals convicted by the STL. Finally, she takes into account the position of states that prohibit trials in absentia, but are requested to surrender a person convicted in absentia by the STL for the purpose of executing his sentence, suggesting an ad hoc agreement between the state in question and the STL may be required as a remedy.

This chapter considers the various perspectives on the debate that the issuance of an arrest warrant by an international criminal court against a sitting head of state, or rebel leader with the power to settle on a possible peace agreement, creates a fundamental tension between the interests of justice and the possibility of negotiating a cessation to hostilities. Then, it briefly focuses on the prosecutorial discretion of the ICC Prosecutor under Article 53 of the Rome Statute, and considers to what extent the “interests of justice” can and do comprise consideration of political contingencies. Keywords:arrest warrants; interests of justice; international criminal court; peace negotiations; prosecutorial discretion

The international legal order lacks a universal and compulsory system for enforcing international responsibility, and therefore the role that domestic courts play in this regard is crucial. The various facets of the doctrine of international immunities, however, can make the domestic judicial system unavailable in cases of claims against foreign states and (former or sitting) foreign state officials. The application of this doctrine to domestic claims concerning egregious violations of human rights has given rise to controversy. As for foreign state immunity, it has been argued that the jus cogens nature of international rules protecting human rights should prevail over those granting immunities. As for personal immunities, international customary law does not seem to provide for an exception to their applicability in cases of serious violations of human rights amounting to international crimes. It is, however, argued that, de lege lata, there can be cases where domestic courts can refuse to apply the rules on personal immunities in order to avoid a denial of justice. Finally, with regard to functional immunities, the general contention is made that they do not apply for domestic claims concerning international crimes. Nonetheless it would be wrong to consider that this constitutes a derogation from, or an exception to, the customary rules of international law on functional immunities.

Torture is prohibited by a certain number of international instruments — a demonstration of the willingness of the international community to outlaw torture in all its manifestations. Yet this set of legal rules seems to have generated confusion as regards the definition of torture. One controversial aspect concerns the requirement that for torture proper to be committed, it must be carried out by state officials or with their involvement. The author argues that the notion of torture depends upon the particular context in which it is used. In the field of international criminal law, the notion of torture as a crime per se, i.e. as a crime which is punishable as such, even if perpetrated sporadically and regardless of whether it is perpetrated in time of peace or war, requires the involvement of a state official. This is so because it is necessary not to ‘trivialize’ the interference of the international community into the realm of criminal law by imposing the criminalization of every single instance of wicked conduct of an entirely private nature. By contrast, the requirement of state official is not needed anymore for torture as a war crime or a crime against humanity. In both cases the quid pluris that turns the infliction of severe pain and suffering into a crime of international concern is the contextual element, i.e. the particular context of violence surrounding the criminal act, coupled with the need to protect the mental and physical integrity of human beings when they are systematically disregarded by deviant behaviours, or when a situation of armed conflict put them at great risk. On the other hand, the notion of torture is wider in non-criminal law contexts. Under human rights treaties, a state can be held responsible for every single instance of torture, including pain and suffering inflicted by a private individual against another private individual under his custody. The reason is that under such treaties states are obliged not only not to violate themselves the protected rights, but also to act as their ultimate defenders when the full enjoyment of those rights is jeopardized by private individuals. The legal definition of torture is a sort of chameleon that — while always embracing the notion that the infliction of acute pain and suffering upon a person under the control of another is required — by necessity changes the colour of its skin as far as additional elements are concerned, depending on the context in which it is situated.

This paper considers whether the NATO-led multinational force in Bosnia and Herzegovina is authorized to arrest persons Indicted by the International Criminal Tribunal for the Former Yugoslavia and, if so, whether it is also obliged to carry out arrests. After critically scrutinizing views put forward on this topic in the legal literature, the author concludes that the multinational force is legally entitled to execute arrest warrants in the territory of Bosnia and Herzegovina, on the strength of Article VI, para. 4, of Annex 1-A to the Dayton Peace Accord, as implemented by the North Atlantic Council through a resolution adopted on 16 December 1995. The author argues that tw'o consequences follow from this view. Firstly, the power of arrest may be exercised concurrently with that of Bosnia and Herzegovina and the two Entities making up this state. Secondly, regarding cooperation with the Tribunal the Nato-ledforce has so far only been empowered to execute arrest warrants, while it has not yet been authorized to execute other Tribunal orders. The author submits that, by contrast, the NATO-led force is not obliged to arrest persons indicted by the 1CTY, nor is such an obligation Incumbent upon individual troop-contributing states qua states.

The constitutionality of four decrees of the central government in the prosecution of the Chechen conflict was challenged in the Russian Constitutional Court by a group of deputies of the State Duma and the Federal Council of the Russian Federation (hereinafter RF).' Among other things, the applicants argued that two of the decrees at issue, namely those providing for the dispatch of armed forces on the territory of the Chechen Republic, had resulted in a violation of international treaties to which the Russian Federation was a party, and of Article 15, paragraph. 4, of the Constitution, by virtue of which both general and conventional international law shall be part of the Russian legal system.