حصانة رئيس الدولة أمام القضاء الجنائي الأجنبي عقد ارتكاب جرائم دولية

Abstract EN

It is recognised that the Head of State is at the top of power in a State, while there is no single international convention that defines the immunities enjoyed by the Head of State, similar to the 1961 Vienna Convention on Diplomatic Relations, which explicitly enumerates the immunities and privileges enjoyed by ambassadors and diplomats of States.

However, it is recognised in international jurisprudence and judicial practice that the immunities and privileges of the Head of State are governed by the customary international law.

As one of a well-established customary international rule is that the Head of State enjoys immunity similar to that enjoyed by ambassadors of States, and then he/she enjoys immunity from prosecution before a foreign court when committing ordinary criminal offenses.

On the other hand, there is a customary international rule that has been crystallised after the Second World War, specifically after the Nuremberg and Tokyo trials, by which the perpetrators of international crimes can be punished before international courts, regardless of their official character, even if the perpetrator of that crime is a Head of State.

This rule has been confirmed through Article 27 of the Statute of the International Criminal Court.

This research deals with an issue of whether the Head of State enjoys immunity before the national criminal jurisdiction of a foreign State when committing international crimes, as some believe that this hypothesis is not clear.

In particular, international p ractices and judicial precedents in this aspect are not stable, in the absence of an international conventional rule regulating this issue.

The researcher in this article believes that the Head of State should not enjoy any kind of immunity (whether personal or functional) before a foreign criminal court when committing international crimes, due to the jus cogens nature that distinguishes the state’s commitment to preventing and punishing international crimes, as well as the erosion of the customary international rule, proh ibiting the prosecuting the Head of State before the foreign criminal court when committing international crimes.