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HEADS OF STATES
Heads of states•Absolute immunity from jurisdiction of other states (criminal, civil);–It is irrelevant whether the act was an official or a private act;•In Australia: –S 3(3)(b) FSIA – reference to a ‘foreign state’ includes reference to a HOS acting in public capacity (s 9 subject to the limitations in ss 10-21) [immunity in relation to civil jurisdiction for official acts];–S 36 FSIA extends the immunities of heads of missions under the VCDR (with the exceptions in art 31(1)) to heads of states and their spouses (ratione personae immunity) [immunity in relation to criminal jurisdiction andimmunity in relation to civil jurisdiction for private acts].
Heads of statesExamples-Thor Shipping A/S v. The Ship “Al Duhail” (2008) 252 ALR 20 (Federal Court of Australia) –head of state of a foreign state entitled to immunity in proceedings arising from a private contract because none of the exceptions in art 31(1) VCDR applied;-Arrest Warrant (ICJ)para 51: ‘firmly established’ that certain high-ranking officers of a state, such as the HOS, HOG and Min of Foreign Affairs enjoy immunity from the jurisdiction of other states; -R v Bow St Magistrates ex parte Pinochet -Lord Browne-Wilkinson: HOS in power and ambassadors in post have complete immunity from all actions and prosecutions, whether related to their office or not (immunity ratione personae).
Former heads of states
Former heads of states•Entitled to continuing immunity onlyin relation to official acts performed while in office; –This immunity can be waived by the state (see Belgium v Senegal);–What if the HOS is ousted unconstitutionally (in a coup, for example)?•Pinochet per Lord Browne-Wilkinson: –‘Senator Pinochet as former head of state enjoys immunity ratione materiaein relation to acts done by him as head of state as part of his official functions as head of state’.
Former heads of statePinochet-Was torture an official function of a head of state?-‘The question….is whether the alleged organisation of state torture by Senator Pinochet (if proved) would constitute an act committed by Senator Pinochet as part of his official functions as head of state’.-‘Can it be said that the commission of a crime which is an international crime against humanity and jus cogensis an act done in an official capacity on behalf of the state? I believe there to be strong ground for saying that the implementation of torture as defined by the Torture Convention cannot be a state function….’ -Why torture under the CAT cannot be a state function?-Art 2 CAT required the criminalisation of torture by all state parties; -CAT (to which Chile, Spain and UK were parties) made torture a crime subject to universal jurisdiction (and it obliged these states to assume universal jurisdiction in relation to torture);-By definition, torture under CAT is an official act (committed by state officials or with state endorsement) –permitting immunity for torture would mean that perpetrators of torture