CYIL Vol. 7, 2016

PAVEL CABAN CYIL 7 ȍ2016Ȏ (attributable) to the individual official, but (only) to his home state, and creates a basis for an exception to this type of immunity of State officials. According to opinions in the doctrine, if crimes under international law are not duly prosecuted by the state with territorial or (active or passive) personal jurisdiction (and the crime is not subject to the jurisdiction of the International Criminal Court or other international criminal tribunal), each state is entitled to exercise universal jurisdiction over such crime. 23 Such a principle of universal jurisdiction is only permissive under customary international law (and may become mandatory under treaty law); nevertheless it conflicts with immunity ratione materiae and implies that the State officials should not be able to invoke immunity ratione materiae for such crimes in criminal proceedings before foreign courts. In the words of D. Akande and S. Shah, “where the application of the prior immunity would deprive the subsequent jurisdictional rule [providing for prosecution of state officials for crimes committed in their official capacity] of practically all meaning, then the only logical conclusion must be that the subsequent jurisdictional rule is to be regarded as a removal of the immunity. Even where the subsequent jurisdictional rule is not practically co-extensive with the rule according immunity, the subsequent jurisdictional rule will remove immunity where the jurisdictional rule contemplates and provides authority for national proceedings in circumstances which would otherwise be covered by immunity”. 24 This approach seems to have been adopted, in the context of treaty law, by the House of Lords in the famous decision Pinochet (No. 3) of 1999. 25 The main issue dealt with in this judgment was the relationship of immunity ratione materiae of a former head of state and the regime of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The House of Lords judges came to the conclusion that the immunity ratione materiae (of a former head of state) is not applicable to the extent the Convention obliges its States Parties to establish jurisdiction over and prosecute the crime of torture, which is defined (in article 1 paragraph 1 of the Convention) as “pain or suffering … inflicted 23 The (possible existing) concrete conditions for the exercise of universal jurisdiction (such as the subisidiarity of its exercise and the presence of the alleged perpetrator in the prosecuting state at the time of the commencement of the trial) would limit the concrete application of this general theoretical concept. See i.a. P. CABAN, Universal Jurisdiction Under Customary International Law, International Conventions and Criminal Law of the Czech Republic: Comments, Czech Yearbook of Public & Private International Law , Vol. 4, 2013, pp. 178-185. 24 D. AKANDE, S. SHAH, op. cit. sub 4, pp. 840-841. See further R. PEDRETTI, op. cit . sub 20, pp. 362-368; R. Pedretti argues that a conflict of norms between immunity ratione materiae and universal jurisdiction is to be solved by the application of rules lex posterior derogat legi priori and lex specialis derogat legi generali , where the “universal jurisdiction” (under customary international law and treaty law) over “crimes pursuant to international law” is lex posterior and more specific rule, and thus supersedes or prevails over immunity ratione materiae (which is, in this case, lex prior and lex generalis ). 25 Regina v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3), House of Lords, 24 March 1999; in: International Law Reports , vol. 119, p. 137 et seq .

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