CYIL Vol. 7, 2016

PAVEL CABAN CYIL 7 ȍ2016Ȏ of the exception to immunity ratione materiae , asserting that the concept “not only is … not the prevailing viewpoint in the doctrine but it would also appear that it is not as yet exerting a decisive influence on the practice and positions of States” and that it is “difficult to talk of exceptions to immunity as having been developed into a norm of customary international law, just as, however, it is impossible to assert definitively that there is a trend toward the establishment of such a norm.” 40 Evidently, the same facts on the practice of states and opinions in the legal literature can be seen and interpreted in quite a different way. However, it is suggested that the more positive assessments cited above concerning the existence of an exception to immunity ratione materiae reflect more adequately current trends in state practice and legal doctrine, as well the openness to the “progressive development of international law” in this area. Nevertheless, a strongly formulated substantive critique of this concept of the exception to immunity ratione materiae is still being presented, recently, i.a. , by Professor Roger O’Keefe. He sees the “fatal flaw” of all the above mentioned normative arguments in favour of the exception to immunity ratione materiae in case of crimes under international law in the following (alleged) logical problem: according to R. O’Keefe, (a) the arguments in favour of the exception to immunity ratione materiae presuppose the legal characterization of the alleged conduct as criminal; (b) the legal wrongfulness of the alleged conduct is a question for determination on the merits; and (c) the determination of the merits of the case is precisely what procedural immunity exists to prevent. 41 However, such an argument does not seem to be persuasive. It is not disputed that, in the proceedings before a national court, the immunity has to be established preliminary, before the hearing on the merits of the case ( in limine litis ), or at the earliest time after the establishment of the facts, on which the entitlement to 40 And there are even more critical assessments of the current status of customary international law in this area: According to ROGER O’KEEFE, “[o]nly on the most skewed approach to the identification of rules of customary international law could one currently discern any form of ‚international crime‘ exception to the immunity ratione materiae from foreign criminal jurisdiction … Indeed, there is nothing even approaching the widespread and representative concordance of state practice and concomitant opinio iuris necessary for a rule of customary international law. Nor, for that matter, does practice or international jurisprudence exhibit any trend in favour of an ‚international crime‘ exception to immunity ratione materiae .”; R. O’Keefe, op. cit. sub 37, p. 168. 41 ROGER O’KEEFE, International Criminal Law , Oxford University Press, 2015, pp. 447-448. See also R. O’Keefe, op. cit. sub 37, pp. 168-169. Roger O’Keefe refers to the judgment of the International Court of Justice in the Jurisdictional Immunities of the State case, where the Court identifies this “logical problem” in the context of the immunity of states from foreign civil jurisdiction; ICJ, Jurisdictional Immunities of the State (Germany v. Italy, Greece intervening), Judgment of 3 February 2012, para. 82 (“… If immunity were to be dependent upon the State actually having committed a serious violation of international human rights law or the law of armed conflict, then it would become necessary for the national court to hold an enquiry into the merits in order to determine whether it had jurisdiction. If, on the other hand, the mere allegation that the State had committed such wrongful acts were to be sufficient to deprive the State of its entitlement to immunity, immunity could, in effect, be negated simply by skilful construction of the claim.”).

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