CYIL 2015

GAPS IN THE LEGAL REGIME OF INTERSTATE COOPERATION IN PROSECUTING CRIMES relevant crimes. On the other hand, these conventions leave intact the customary law immunity ratione personae of State officials from foreign criminal jurisdiction, 63 and, it is alleged, rightly so: the purpose of the immunity ratione personae is to protect State officials (the most senior officials, as well as members of diplomatic missions and special missions) only during their term of office and to enable them to travel and represent their home State abroad, freely and without hinderance (unlike the immunity ratione materiae , which protects State officials “forever”, even after they leave the office, but covers only acts which the State official performed in his or her official capacity). 64 Therefore, it seems that immunity ratione personae under international law (unlike immunity ratione materiae ) should remain intact when it comes to the exercise of the national courts‘ jurisdiction of individual states over serious crimes, including crimes against humanity; on the other hand, immunity ratione personae (as well as immunity ratione materiae ) has no place and (has to) become irrelevant before international criminal tribunals, namely the International Criminal Court. Therefore, it is suggested that the inclusion of Article 6 in the Proposed Convention is questionable and requires further consideration. Finally, the Proposed Convention aims to establish a new institutional mechanism consisting of the conference of States Parties (which should meet regularly every three years), a committee of ten independent experts, which should review information submittedbyStatesParties and issue comments, observations or recommendations, and a permanent secretariat. According to the commentary to the Proposed Convention, this institutional mechanism “draws heavily upon” mechanisms established by the Rome Statute, Enforced Disappearance Convention and UN Convention against Corruption; 65 in addition, the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (1999) provides for a similar mechanism. On the other hand, as it was suggested at the meeting of experts in May 2014, building on the human rights treaty system might not be the States‘ preferred institutional mechanism for crimes against humanity, as , i.a. , “there is already a sense among States that the existing human rights reporting requirements 64 The immunity ratione personae covers all acts performed, whether in a private or official capacity, by certain (highest) representatives of foreign States, but protects these persons only “during their term of office”; after they leave their office, they are entitled only to the immunity ratione materiae which covers (only) acts performed in their official capacity. The topic of immunities ratione personae and ratione materiae of State officials from foreign criminal jurisdiction is currently on the agenda of the International Law Commission (see International Law Commission, Report on the work of its sixty sixth session (5 May to 6 June and 7 July to 8 August 2014), UN doc. A/69/10, p. 229 et seq. ). See also discussion on this topic at the experts’ meeting organized by Crimes Against Humanity Initiative in Geneva in May 2014, op. cit. sub 45, pp. 19-20. 65 See the commentary to the Proposed Convention, op. cit. sub 51, p. 39. 63 Unlike the exception to the immunity ratione materiae , the exception to the imunity ratione personae would have to be stated explicitly in these conventions.

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