CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ IMMUNITY OF STATE OFFICIALS FROM FOREIGN CRIMINAL JURISDICTION immunity ratione personae of heads of state, heads of government and ministers of foreign affairs has the same erga omnes character. On the other hand, immunity ratione personae – of diplomatic agents, consular officers, members of special missions etc. – under special treaties and analougous customary regimes is, in principle, effective only in relation to a concrete receiving state.) 3. Customary and treaty-based immunity ratione materiae Do representatives of states performing their official functions abroad (members of diplomatic missions, consular posts, special missions etc.) enjoy, with respect to acts performed by them in the exercise of their official functions, the same immunity ratione materiae as all other state official perfoming their functions in their home state? If so, the only difference between immunity ratione materiae , which is contained in relevant treaties 10 (and analogous customary immunity ratione materiae reflecting the regime of these treaties) on the one hand, and, on the other hand, general customary immunity ratione materiae of all other state officials, would be the fact that immunity ratione materiae of officials performing their functions abroad is explicitly mentioned in the relevant treaties. Further, if treaty-based immunity ratione materiae is only a simple (partial) reflection of general immunity ratione materiae available to all state officials under customary international law, it should be also subject to the same exceptions based on the exercise of universal jurisdiction over certain serious crimes or on the fact that the crime was committed on the territory of the forum state (see further below). However, this conclusion is by no means accepted universally. According to other opinions, the treaty based immunity ratione materiae has, in comparison to general customary immunity ratione materiae, its specific characteristics: it is asserted that it is absolute and cannot be subject to exceptions, namely that it cannot be superseded by the emerging customary international law and existing treaty rules according universal jurisdiction over crimes under international law or relevant “official crimes”. This view, according to which the treaty based immunity ratione materiae has a special status, has been supported in practice as well as in doctrine. 11 10 Namely article 38, paragraph 1 and article 39 paragraph 2 of the Vienna Convention on Diplomatic Relations; article 43, paragraph 1, article 53, paragraph 4 and article 71, paragraph 1 of the Vienna Convention on Consular Relations; article 40, paragraph 1 and article 43, paragraph 2 of the Vienna Convention on Special Missions. 11 Case No 2 BvR 1516/96, Federal Republic of Germany, Federal Constitutional Court (Bundesver- fassungsgericht) (Second Senate), 10 June 1997; in: ILR, vol. 115, pp. 596 et seq .; D. Akande, S. Shah, op. cit. sub 4, pp. 849-851 (“As the immunity ratione materiae of former diplomats is treaty-based and there is no evidence to suggest that the VCDR has fallen into disuse, it is difficult to argue that this immunity is superseded by the emerging customary international law rule according universal jurisdiction. It would therefore appear that the state to which a former diplomat was accredited is bound to respect his or her immunity ratione materiae , even if the diplomat is charged with having committed an international crime. However, the treaty rule according diplomatic immunity ratione materiae does not apply with respect to third states. With respect to those states the position of the former diplomat is the same as that of other

311