ABSTRACT
After the atrocities of the Second World War, it was decided that the perpetrators ought to be tried and punished. However, a majority of them were the most important public figures, who were claiming that they were solely acting on behalf of the state that they were representing. Therefore, it was agreed that the Charter of the International Military Tribunal should impose an accountability of public officials (Article 7). According to the creators of the Charter and judges one could not apply the official capacity defence concerning violation of international humanitarian law since the state is not authorized to order its representatives to violate the international law.
Following the Nuremberg trials, it was obvious that the provision prohibiting the impunity of public officials would be included in the Convention on the Prevention and Punishment of the Crime of Genocide (1948) and it was placed in Article 4.
In international law there is a dispute whether the regulation of Article 4 of the Convention (and other similar regulations in international humanitarian law) concerns only the rejection of the “act of state” defence or whether it may implicitly concern the issue of immunities of official representatives. This dilemma was solved by the Rome Statute, which explicitly regulated both understandings of the accountability of public officials.
The issue of rejection of the “official capacity” defence and immunities was raised in numerous judgments. Generally, both immunities and the “act of state” defence are rejected both by international tribunals and national courts as sufficient grounds for acquittal. However, the immunity of incumbent public officials is said to be still opposable provided that the state that public official represents is not directly bound by certain international courts.
The future perspectives for accountability of public officials are the matters of the state responsibility and the accountability of incumbent state representatives. The former, though, is not directly connected with individual responsibility of public officials but complements this regulation, allowing the victims to seek compensation from a state and stating the accountability of a country in corpore. The latter was resolved negatively by the judgments of courts. Nevertheless, it is a matter that needs a profound assessment.
