CYIL Vol. 7, 2016

PAVEL CABAN CYIL 7 ȍ2016Ȏ exception(s) to immunity ratione materiae and comment on sceptical and critical voices questioning these exceptions. 2. Immunity ratione personae and immunity ratione materiae Before focusing on the exceptions to immunity ratione materiae of state officials from foreign criminal jurisdiction, it is useful to briefly outline the basic concepts and notions of the topic of the immunity of state officials from foreign criminal jurisdiction. Immunity ratione personae of state officials from foreign (criminal) jurisdiction, or personal immunity, sometimes described as only a procedural bar to the exercise of jurisdiction by a foreign state, is, according to a wide consensus in theory and practice, accorded only to certain groups or categories of state officials (representatives) and only for a certain period of time: relevant state officials enjoy these personal immunities only as long as they remain in office. On the other hand, immunity ratione personae covers all acts performed by an official, whether in an official or private capacity, during or prior to his or her term of office. The International Law Commision dealt with the immunities ratione personae enjoyed by to the highest-ranking state officials under customary international law and, provisionally, came to the conclusion that this customary law immunity ratione personae is accorded to the so-called troika, i.e. Heads of State, Heads of Government and Ministers for Foreign Affairs. 1 In addition, treaties (Vienna Convention on Diplomatic Relations, Vienna Convention on Consular Relations, Vienna Convention on Special Missions and similar multilateral and bilateral treaties according immunities to State officials performing their temporary functions abroad) 2 and, as the case may be, customary international law reflecting the rules contained in these treaties confer other (manifestations of ) immunity ratione personae on diplomatic agents, consular officers, members of special missions and other State officials who represent their home state on the international level and temporarily perform their functions outside the territory of their home state. 3 The justification for conferment 1 Draft article 4, paragraph 2, as provisionally adopted by the International Law Commission; ILC, Report on the work of the sixty-fifth session, 2013, doc. A/68/10, p. 66. The International Court of Justice elaborated on this customary law immunity ratione personae of ministers of foreign affairs in its decision of 2002 in the case of Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium). 2 The main difference between immunity ratione personae under the treaties mentioned above, as well as under corresponding customary law rules, on the one hand, and customary immunity ratione personae of the troika (heads of state, heads of government and ministers of foreign affairs), on the other hand, is that the immunity of the troika is wider, since it applies also to private visits of these highest-ranking state officials abroad. 3 According to article 1, paragraph 2 of the draft articles on the immunity of State officials from foreign criminal jurisdiction, as provisionally adopted by the ILC at its sixty-fifth session in 2013, “[t]he present draft articles are without prejudice to the immunity from criminal jurisdiction enjoyed under special

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