CYIL Vol. 7, 2016

PAVEL CABAN CYIL 7 ȍ2016Ȏ jurisdiction (protecting, unlike immunity ratione materiae , only certain group of state officials, only temporarily, and, with the exception of the “troika”, only in a concrete receiving state) and, as such, is not in conflict with the rules on which the exceptions to immunity ratione materiae are based. As summarized by the ILC Secretariat, “the operation of immunity ratione personae even with respect to international crimes is generally justified by the need to ensure the effective performance of the functions of the officials concerned on behalf of their state (which appears to be particularly pressing when the individual is a high-ranking official and during his period of office) and the proper functioning of the network of mutual inter-State relations.” 17 5. General exception to immunity ratione materiae As far as exceptions to immunity ratione materiae of State officials from foreign criminal jurisdiction are concerned, various rationales for their existence are being discussed in the doctrine and practice. The first ILC Special Rapporteur for the topic of immunities of state officials from foreign criminal jurisdiction, Mr. Roman Kolodkin, summarized these possible rationales as follows: (a) the grave criminal acts committed by an official cannot under international law be considered as acts performed in an official capacity; (b) since an international crime committed by an official in an official capacity is atributed not only to the State but also to the official, then he is not protected by immunity ratione materiae in criminal proceedings; (c) peremptory norms of international law which prohibit and criminalize certain acts prevail over the norm concerning immunity and render immunity invalid when applied to crimes of this kind; (d) a norm of customary international law has emerged providing for an exception to immunity ratione materiae in a case where an official has committed grave crimes under international law; (e) a link is being drawn between the existence of universal jurisdiction in respect of the gravest crimes and the invalidity of immunity as it applies to such crimes; (f ) an analogous link is seen between the obligation aut dedere aut iudicare and the invalidity of immunity as it applies to crimes in respect of which such an obligation exist. As commented by the Special Rapporteur, “in one way or another, these rationales for exceptions are fairly close to one another”. 18 Some of these rationales, taken on their own, were challenged in the doctrine. Thus, the argument that the crimes under international law committed by state officials should not be, due to their illegality and seriousness, regarded as official acts of the state (since they would not fall within the “normal” functions of the State), has been, in my opinion, convincingly refuted by arguments based on: 17 ILC, Memorandum by the Secretariat, op. cit. sub 8, p. 96. 18 Second Report of the Special Rapporteur , op. cit . sub 8, p. 32. For an overview of legal literature, international and national practice and various possible legal basis for an exception to immunity ratione materiae in respect of crimes under international law see further ILC, Memorandum by the Secretariat, op. cit. sub 8, pp. 123-137.

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