Various Immunities under International Law

The action of sending a ‘raiding party’ can be viewed under the provisions of United Nations Charter as well as under the provisions of International law. Article 51 of the United Nations Charter recognizes a right of self – defense if an armed attack occurs against any of the member countries. Such a right is offered to the member nation subject to two conditions; one is the necessity of the force for defense and the other one is the test of proportionality of the force that can be used against the attacking force.

However in this case there is no question of US using any force against Mexico and hence it should be analyzed under the provisions of the International Law. The provisions of International Law recognize a limited right of reprisal or right of retaliation in addition to the right of defense. “It is a form of self-help legitimizing certain action that would otherwise be unlawful, in response to an illegal act by or under the aegis of another state” Frederic L. Kirgis (1998) Of course the right of reprisal is also subject to the tests of necessity and proportionality, though the characters of self-defense don’t apply to the act of retaliation.

It is imperative that both the tests are satisfied before force can be used. However it is a precondition for adopting the act of reprisal that all available non-coercive means of settling the issue be tried out before a decision to use the mode of reprisal. Subject to the provisions of Article 2(4) of the UN Charter is clear in prohibiting the use of reprisal measures by saying that "threat or uses of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

" This provision would still approve the use of armed forces only in the case of self defense which is not the case with Mexico claiming to kidnap the murder accused. Hence Mexico is under a legal obligation to use its diplomatic missions to get the extradition of the defendant Perez for conducting trail in Mexico and can not use force to kidnap Perez to undergo trail in Mexico as the proposed action doesn’t satisfy the test of necessity. Different kinds of immunities are granted to different individuals under various circumstances.

Immunity from prosecution is a doctrine of International law under which an accused is permitted to avoid prosecution for criminal offences. Immunities in general can be categorized in to Functional Immunity and Personal Immunity. Functional Immunity is an immunity that is offered to people who are entrusted with some functions of the government. Usually this immunity is granted to Ambassadors who represent their countries in other nations.

Immunity is granted to them from any criminal offense they commit while they are performing the function entrusted to them. The immunity is available even if the people cease to perform the functions of the state. Personal Immunity on the other hand is an immunity granted to various officials by reason of their holding certain offices rather than because they were involved in some functions of the state. The sovereign immunity and head of state immunity can be considered as personal immunity.

In addition immunity granted to foreign ministers is also governed by personal immunity. Both functional immunity and personal immunity arise from the international law. In the case of personal immunity, the immunity will be withdrawn once they are out of their offices. The justification for granting functional immunities to various people can be attributed to the fact that since they have been entrusted with specific functions of the state, any personal disturbances to them will obstruct the flow of the work that was entrusted to them.

Moreover such persons may be carrying the official secrets of the country they are representing and any prosecution of them may demand them to divulge the official secrets of the nation. Whereas in the case of personal immunity the justification for granting immunity can be found from the fact that since the people occupy such positions of authority that do not allow them to stoop to the level of getting prosecuted. Here the positions they hold instead of the function they discharge provide the basis for grant of the immunity.

In the case of combatant immunity the consideration is entirely different as under The Hague regulations and the Geneva conventions the prisoners of war are to be guaranteed a dignified level of treatment and also immunity from the prosecution under the enemy’s law. Even if a prisoner of war has killed some of the soldiers of the enemy, still the prisoner enjoys the immunity. An analysis of the underlying reasons for granting these immunities derives a common objective in granting them.

In the case of diplomatic immunity and head of state immunity representing the functional and personal immunity respectively the people who are provided with the immunity are under oath of secrecy and are also in possession of valuable information concerning the safety and wealth of the nations they represent. As discussed earlier any prosecution of them may lead to a situation that they may have to necessarily divulge information that are otherwise to be kept as national secrets.

Similarly in the case of prisoners of war also they may be in possession of some military secrets which when divulges may result in a jeopardy for the safety of the country to which the prisoner belong. Hence it may be concluded that all the immunities though granted under different contextual basis share the same justification for their grant. The safety of the nation and the keeping of the official secrets of the nation away from the knowledge of the public or alien countries form the concern behind the grant of all immunities.

References:

Frederic L. Kirgis (1997) International Agreements and U. S. Law American Society of International Law http://www.asil.org/insights/insigh10.htm

Sarah from Law Aspect

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