CYIL Vol. 7, 2016

PAVEL CABAN

CYIL 7 ȍ2016Ȏ

6. “Territorial” exception from immunity ratione materiae ? Recently the doctrine focused also on another possible exception to immunity ratione materiae of state officials from foreign criminal jurisdiction, namely on cases where an “official crime” ( i.e. crime which is comitted in the exercise of official capacity, and, therefore, attributable to a foreign state and, in principle, covered by immunity ratione materiae ) is perpetrated in the territory of the State which exercises jurisdiction. It seems that this possible exception would be defined by the territoriality ( i.e. by the territory where such an “official crime” was committed), rather than (as in the case of the general exception to immunity ratione materiae ) by the gravity of such crime and the possibility of exercise of extraterritorial (universal) jurisdiction. According to the doctrine, examples of crimes which could be covered by such territorial exception to immunity are espionage, acts of sabotage, kidnapping or political assassinations committed in the territory of a forum state; but it seems that also any other “official” criminal activity could fall within this exception. 43 In judicial proceedings concerning cases of this kind, the immunity sometimes has not even been asserted (since home states of the officials concerned tend to refrain from claiming immunity on their behalf in case of such, politically very sensitive, “official crimes” committed on the territory of another state). 44 According to the memorandum prepared by the ILC’s Secretariat, “it has been suggested that, in determining whether acts carried out by a State official in the territory of a foreign State are covered by immunity ratione materiae , the crucial consideration would be whether or not the territorial state had consented to the discharge in its territory of official functions by a foreign State organ”. 45 The Special Rapporteur, Roman Kolodkin, added, that “the consent of the receiving State not only to the discharge of functions, but also to the very presence of a foreign official in its territory may be of importance.” 46 43 Second report of the Special Rapporteur, op. cit . sub 8, p. 52; Joanne Foakes, Immunity for International Crimes? (Developments in the Law on Prosecuting Heads of States in Foreign Courts), ChathamHouse Briefing Paper, November 2011, pp. 12-13; available at https://www.chathamhouse.org/publications/ papers/view/179865 (visited on 18 May 2016); J. Foakes, op. cit . sub 9, p. 163. See also the judgment (of 29 October 1997) by the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia in the Blaskić case, subpoena decision, para. 41 [“Similarly, other classes of persons (for example, spies, as defined in Article 29 of the Regulations Respecting the Laws and Customs of War on Land, annexed to the Hague Convention IV of 1907), although acting as State organs, may be held personally accountable for their wrongdoing.”] 44 J. FOAKES, op. cit. sub 9, p. 175 (“It is likely, that, where the home State is aware of proceedings, its reasons for deciding whether or not to claim functional immunity on behalf of its officials will vary considerably. … Invocation of immunity may not always be a particularly attractive option since it could be interpreted as tantamount to a declaration by the State that it is responsible for the conduct which is the subject of the proceedings. … ”). 45 Memorandum by the Secretariat, op. cit. sub 8, p. 108. 46 Second report of the Special Rapporteur, op. cit . sub 8, p. 52 et seq . (The Special Rapporteur summarizes his observations as follows: “If a state did not give its consent to the presence of a foreign official and his activity, which led to the commission of a criminally punishable act, in its territory, there would appear

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