Immunity of Heads of State and Government: Implicationsand Challenges for the Proposed Hybrid Court for South Sudan
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Date
2018-01
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Addis Ababa University
Abstract
The paper discusses immunity of Head of States and Governments both under international law
and in Africa particularly in the AU system. The aim of the paper is to demonstrate whether
immunity of Head of States and Government,who violate International Human Rights and
Humanitarian laws,are immune from criminal prosecution.Furthermore, the aim of this study is
to show the legal framework of AU and the stands of African states mainly South Sudan on
Immunity of Head of States and Governments and how it will pose a challenge to the proposed
Hybrid Court for South Sudan. The paper illustrates how the proposed Hybrid Court for South
Sudan will enforce its mandate on Heads of States and Governments and address accountability.
The paper will unveil how individual criminal responsibility could be addressed if the proposed
Hybrid Court remains in a paper. The research questions have been answered by using
interviews, literature, conventions, cases, and various articles reviews and triangulations of
those data collected. The result shows that the issue of immunity of Head of States and
Governments under international law does not hold a settled ground, and a major debate
subsists one which contends that there is sufficient state practice that removes immunityof Head
of States and Governments under international law and one that contends otherwise. The paper
recommends the establishment of an institution that conducts thorough study and analysis of the
state practice and opinio juris to come up with a hard law which is codified that weighs all the
evidence to settle the debate. The paper also addressed the question of accountability in South
Sudan and whether the Hybrid Court for South Sudan enforces its mandate on Head of States
and Governments who are allegedly responsible for International Human Right violations given
the principle of immunity of Head of States and Governments from criminal jurisdiction.
Agreement on the Resolution of the Conflict in South Sudan has been analyzed to assess the
mandate of the Hybrid Court on addressing accountability which outlaw’s immunity as a
defense, however, the existence of immunity in South Sudan and the normative framework of AU
will pose possible challenge on the functionality of the Hybrid Court. Finally, the paper also
unveilsthere is no contingency plan to entertain transitional justice if the Hybrid Court remains
on paper. Hence, the paper recommends the UNSC to enact the text of the peace agreement by
way of Chapter VII resolution to enforce the provisions of the agreement as an alternative plan if
the Hybrid Court remains in vain.
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Keywords
Heads of State and Government