CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ IMMUNITY OF STATE OFFICIALS FROM FOREIGN CRIMINAL JURISDICTION of immunities ratione personae is primarily to facilitate the smooth conduct of international relations, which requires temporary protection, on the basis of absolute immunity from criminal (as well as administrative and civil) jurisdiction, of officials exercising their representative functions abroad. 4 Importantly, the absolute character of (temporary) immunity ratione personae means that the immunity extends also to cases of crimes under international law allegedly committed by state officials enjoying this type of immunity. 5 On the other hand, immunity ratione materiae , or “functional” (“conduct-based”) immunity, is regarded as a substantive defence against the exercise of jurisdiction of a foreign state, predicated on the ground that the official acts of a state organ are to be attributable to the State and not the individual official. This type of immunity covers only acts performed by state officials in their official capacity (acts performed on behalf of the state), which means that, unlike immunity ratione personae , it does not provide any protection with respect to private acts of state officials. On the other hand, this type of immunity may be relied on by all state officials, regardless of their rank in state hierarchy, and does not cease to exist when the official leaves his office, which means that it protects also former officials with respect to their official acts performed during their term of office. 6 The conferment of immunity ratione materiae is based on the fact that the individual official is not to be held legally responsible (before foreign courts) for the official acts, since these acts are, in effect, the acts of his home state – or, in other words, the acts performed by the state official in the exercise of official functions are not legally imputable (attributable) to the individual official, but to his home state, since the acts were carried out on behalf of a State, rules of international law, in particular by persons connected with diplomatic missions, consular posts, special missions, international organizations and military forces of a State.” In its comentary, the ILC considered, with regard to these special “treaty-based and custom-based” regimes, that “these are legal regimes that are well established in international law and that the present draft articles should not affect their content and application”. The ILC sees such “special rules” as “coexisting with the regime defined in the present draft articles, the special regime being applied in the event of any conflict between the two regimes.”; ILC, Report on the work of the sixty-fifth session, 2013, op. cit. sub 1, pp. 55-56. 4 On the definition of immunity ratione personae , see , i.a. : DAPO AKANDE, SANGEETA SHAH, Immunities of State Officials, International Crimes, and Foreign Domestic Courts, The European Journal of International Law , Vol. 21, no. 4, pp. 818-825; ANTONIO CASSESE, When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case, The European Journal of International Law , Vol. 13 (2002), no. 4, pp. 862-3; ROBERT JENNINGS, A. WATTS, Oppenheim’s International Law , Vol. I, 9th ed. (1992), Longman, p. 346. 5 D. AKANDE, S. SHAH, op. cit . sub 4, pp. 819 and 823. The International Court of Justice confirmed this aspect of immunity ratione personae with regard to the customary immunity of incumbent ministers of foreign affairs in its decision in the Arrest Warrant Case. For more details on this aspect of immunity ratione personae see further below. 6 Both types of immunity – ratione personae and ratione materiae – coexist and overlap during the term of office of state officials; once a state official leaves his office, only immunity ratione materiae remains effective.

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