CYIL Vol. 7, 2016

PAVEL CABAN CYIL 7 ȍ2016Ȏ liability is envisaged under international law. 30 If this rationale is accepted, the list of crimes for which an exception to immunity ratione materiae should apply would include also genocide, war crimes and crimes against humanity, 31 although with some qualifications based on the concrete jurisdictional regimes contained in relevant treaties. 32 The reasons legitimizing this concept of exception to immunity ratione materiae are summmarized by D. Akande and S. Shah as follows: “arguably, the primary reason for permitting universal jurisdiction is that persons who commit such international crimes are often connected to the state concerned and might escape justice if only their home state had jurisdiction. To the extent that rules relating to universal jurisdiction are intended to avoid impunity often caused by the failure of states to take action against persons acting on their behalf, those rules contemplate prosecution of those officials by other states.” 33 The current status of this (suggested) exception to immunity ratione materiae was summarized in the doctrine as follows: “A considerable body of international cases, national cases, other state practice and academic commentary supports the view that functional immunity does nor preclude prosecution for serious international crimes, which is consistent with the broader reading of Pinochet. … However, the failure of the ICJ [in the Arrest Warrant case] to mention the principle, as well as a few outlying cases, means that the proposition is not free from doubt.” 34 Other commentators example by members of a non-state entity in a non-international armed conflict) – in case of these other, “non-state”, perpetrators the immunity ratione materiae would not be applicable at all. 30 J. Foakes, op. cit . sub 9, p. 153. 31 As pointed by D. AKANDE AND S. SHAH, “[w]hile most international crimes ( i.e. genocide, war crimes, and crimes against humanity) as defined in the ICC Statute and other relevant conventions are not limited to official acts (as is the case with torture and enforced disappearance), it is clearly the case that these crimes are intended to capture the conduct of those acting in the exercise of official capacity.”; op. cit. sub 4, p. 843. 32 For a detailed overview of the scope of jurisdiction over these crimes see D. AKANDE, S. SHAH, op. cit . sub 4, pp. 843-6. 33 D. Akande, S. Shah, op. cit. sub 4, p. 846. 34 R. CRYER et al. op. cit . sub 27, p. 549. For an overview of the practice of States and opinions in the doctrine see ILC, Memorandum by the Secretariat, op. cit. sub 8, p. 116 et seq . See further ILA, London Conference (2000), Committee on International Human Rights Law and Practice, Final Report on the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offences, p. 21 (Conclusions and recommendations): “4. No immunities in respect of gross human rights offences subject to universal jurisdiction shall apply on the grounds that crimes were perpetrated in an official capacity.”; for the text of the Final Report, see http://www.ila-hq.org/en/committees/index.cfm/cid/20 (“Conference Report London”) (visited on 1 June 2016). See further article 13 of the resolution, adopted by the Institute of International Law at its 2001 session, on immunities from jurisdiction and execution of Heads of State and of Government in international law: “1. A former Head of State enjoys no inviolability in the territory of a foreign State. 2. Nor does he or she enjoy immunity from jurisdiction, in criminal, civil or administrative proceedings, except in respect of acts which are performed in the exercise of official functions and relate to the exercise thereof. Nevertheless, he or she may be prosecuted and tried when the acts alleged constitute a crime under international law , or when they are performed

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