Immunity rules have always been quite controversial. Many scholars believe that to grant immunity to eg, Head of State or other state officials goes contrary to the fundamental principle of justice and human rights, especially if those state officials are charged with crimes of jus cogens status.
So, does this mean, immunity should be denied as a defence to charges involving of allegation of crimes of jus cogens status (eg, genocide, crimes against humanity etc) regardless of the national or international character of the jurisdiction concerned?
After some research, I have learned that if two parties at disputes are two states, then the other state always has to respect the immunity of the other state (due to the principle of state sovereignty and equality-eg, Arrest Warrant Case). But eg, if an arrest warrant was issued by the International Criminal Court, the answer will be different. Al Bashir Case showed how the ICC denied immunity as a defence by getting around with Art. 98 of the Rome Statute.
I think a thorough analysis of the elements of the case has to be carried out, considering mainly the material facts and the perpetrator's mens rea. It is very unfair to the victims, and really to the whole of huamnity, that people who are supposed to uphold human rights get easily away with their wrongdoings. This does not, however, mean that they do not have the right to a fair trial.
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