CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ IMMUNITY OF STATE OFFICIALS FROM FOREIGN CRIMINAL JURISDICTION observed that “State practice concerning the application of possible exceptions to the immunity ratione materiae of state officials in criminal proceedings before national courts is scant and not too consistent.” 35 Therefore, there is no denying that there are also important sceptical voices questioning the existence or the scope of the exception to immunity ratione materiae outlined above. The International Court of Justice, in its judgment in the Arrest Warrant case, stated, as obiter dictum , that “[p]rovided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his or her period of office as well as in respect of acts committed during that period of office in a private capacity.” 36 This obiter dictum has been interpreted as implicitly denying the existence of the exception to immunity ratione materiae in case of crimes under international law. 37 However, the Court, in its decision in the Arrest Warrant case, dealt with the issue of immunity ratione personae of incumbent ministers of foreign affairs, not with immunity ratione materiae of former ministers of foreign affairs and other state officials. To attach such far-reaching interpretative consequences to an ommission in one general statement which is only part of an obiter dictum of the Court does not seem to be adequate. Therefore, it is not surprising that this possible implication of Arrest Warrant judgment for the existence of exceptions to immunity ratione materiae has been critized by several authors as being not in accordance with the current state of international law. 38 On the other hand, the first ILC’s Special Rapporteur for the the topic of the immunities of state officials from foreign criminal jurisdiction, 39 Mr. Roman Kolodkin, in his second report questioned the theoretical concept, described above, exclusively to satisfy a personal interest, or when they constitute a misappropriation of the State’s assets and resources.” Under article 16 of the resolution, the above provisions are applicable also to former Heads of Government. For the text of the resolution see http://www.justitiaetpace.org/idiE/ resolutionsE/2001_van_02_en.PDF (visited on 1 June 2016). 35 J. FOAKES, op. cit . sub 9, p. 149 et seq . On the other hand, for a view that, “according to the vast majority of the reviewed practice”, “former Heads of State and other State officials accused of crimes pursuant to international law do not benefit from immunity ratione materiae ”, as well for a thorough analysis of various arguments underpinning the existence of an exception to immunity ratione materiae , see R. Pedretti, op. cit. sub 20 (in general terms, the arguments put forward and conclusions defended in this article are close to the arguments and conclusions in the treatise by R. Pedretti). 36 ICJ, Arrest Warrant, Judgment, para. 61. 37 R. O’KEEFE, Symposium on the Immunity of State Officials: An “International Crime” Exception to the Immunity of State Officials from Foreign Criminal Jurisdiction: Not Currently, Not Likely, American Journal of International Law , Vol. 109 (December 14, 2015), pp. 169-170. 38 ILC, Memorandum by the Secretariat, op. cit. sub 8, pp. 116-117 and 130-131. The memorandum cites A. Cassese, according to whom, i.a ., “that such a rule [exception to immunity ratione materiae in respect of crimes under international law] has crystalized in the world community is evidenced by a whole range of elements: not only the provisions of the various treaties or other international instruments on international tribunals, but also international and national case law.”; A. CASSESE, op. cit. sub 4, pp. 864-865. 39 Second Report of the Special Rapporteur, op. cit . sub 8, pp. 52 and 56.

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