Integrity Risks Pertaining to Head of State and Diplomatic Immunity: How Political Considerations Impact on the Law

Abstract

Many states in the Common Market for Eastern and Southern Africa (COMESA) and the Southern African Development Community (SADC) region recognize customary and conventional international law pertaining to the head of state immunity as deriving mainly from the concept of sovereign immunity. A number of these states have enacted legislation to provide for immunity of a head of state from criminal prosecution. Some states such as Kenya, Gambia, Burundi and South Africa are now beginning to question the waiver of the immunity of a head of state from prosecution under the 2002 Rome Statute of the International Criminal Court, contending that the said waiver targets mainly African heads of state. This chapter argues that all state parties to the 2002 Rome Statute of the International Criminal Court must, pursuant to the international law doctrine of pacta sunt servanda, remain committed to the ideals and dictates of that treaty, and that withdrawing from the said treaty or from membership of the International Criminal Court should only be the last resort after exhausting all possible options to reform the International Criminal Court. The reform of the Court would enable it to prosecute also (sitting and former) heads of state of western countries for committing crimes covered under the 2002 International Criminal Court Statute.