Pro inspiraci a nalézání právních argumentů se zamyslete nad následujícími výroky:



Sir Artur Watts: „State are artificial legal persons: they can only act through the institutions
and agencies of the State, which means ultimately through its official and other individuals acting
on behlaf of the State. For international conduct which is so serious as to be tainted with
criminality to be regarded as attributable only to the impersonal state and not to the individuals
who ordered or perpetrated i tis both unrealistic and offensive to common notin of justice.“


Vattel: „Head of State who commits murder and other grave crimes is chargeable with all the evils,
all the horrors, of the war; all the effusions of blood, the desolation of families, the rapine,
the violence, the revenge, the burnings, are his works and his crimes. He is guilty towards the
enemy, of attacking, oppressing, massacring them without cause, guilty towards his people, of
drawing them into acts of injustice, exposing their lives without necessity, without reason,
towards that part of his subjects whom the war ruins, or who are great sufferers by it, of losing
their lives, their fortune, or their health. Lastly, he is guilty towards all mankind, of
disturbing their quiet, and setting a pernicious example.“ [1]


Lord Lloyd: „The setting up of these special international tribunals for the trial of those accused
of genocide and other crimes against humanity, including torture, shows that such crimes, when
committed by heads of state or other responsible government officials cannot be tried in the
ordinary courts of other states. If they could, there would be little need for the international
tribunal.“


„I have no doubt that the crimes of which Senator Pinochet is accused, including the crime of
torture, were governmental in nature … it would be unjustifiable in theory, and unworkable in
practice, to impose any restriction on head of state immunity by reference to the number or gravity
of the alleged crimes. Otherwise one would get to this position: that the crimes of a head of state
in the execution of his governmental authority are to be attributed to the state so long as they
are not too serious. But beyond a certain (undefined) degree of seriousness the crimes cease to be
attributable to the state, and are instead to be treated as his private crimes. That would not make
sense.“


Lord Nicholls: „International law recognises, of course, that the functions of a head of state may
include activities which are wrongful, even illegal, by the law of his own state or by the laws of
other states. But international law has made plain that certain types of conduct, including torture
and hostage-taking, are not acceptable conduct on the part of anyone. This applies as much to heads
of state, or even more so, as it does to everyone else; the contrary conclusion would make a
mockery of international law.“


Lord Philips: „Would international law have required a court to grant immunity to a defendant upon
his demonstrating that he was acting in his official capacity? In my view plainly it would not. I
do not reach that conclusion on the simple basis that no established rule of international law
requires state immunity ratione materiae to be accorded in respect of prosecution for an
international crime. International crimes and extra-territorial jurisdiction in relation to them
are both new arrivals in the field of public international law. I do not believe that state
immunity ratione materiae can coexist with them.“
________________________________

[1]  Wright, Q.: The Legal Lability of the Kaiser.  American  Political Science  Review 13  (1919),
str. 120, 126.