CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ IMMUNITY OF STATE OFFICIALS FROM FOREIGN CRIMINAL JURISDICTION It seems that these general observations concerning the relevance of consent of the territorial state should be specified. An official, who is present and performs official activites in the territory of a foreign state will, as a rule, enjoy (treaty or customary) immunities ratione personae (of a member of a diplomatic mission, consular post, special mission etc.) protecting him during the time of his visit in a foreign State against any prosecution, including against any prosecution concerning an “official crime” committed on the territory of such a foreign state (the members of the “troika” being protected by this immunity ratione personae not only during their official visit in a foreign state, but during the whole term of their office). On the other hand, it seems that the consent of a state with the presence of a foreign official on its territory, which does not include the granting of immunities ratione personae to such a foreign official, is not a sufficient ground for excluding the application of the (suggested) exception to immunity ratione materiae in case of illegal acts performed in the territory of a foreign state. For example, if a secret agent enters lawfully, for example on the basis of a temporary touristic visa, i.e. with the consent of a foreign State, the territory of a foreign State and commits there, without the consent of the foreign state, an “official crime” under the direction or instruction of his home State, the “territorial” exception to immunity ratione materiae should be applicable. Similar considerations should apply in case of a hypothetical scenario of an official who has visited another state for official talks as a member of a special mission, but beyond the scope of the talks engages in espionage or terrorist activity (immunity ratione personae would protect such an official during his official visit in a foreign state, but after the visit is over, the territotial exception to immunity ratione materiae would become applicable). 47 Thus, it seems that in determining whether illegal acts carried out by a state official in the territory of a foreign State are not covered by immunity ratione materiae , the crucial consideration should be only whether or not the territorial state had consented to the discharge in its territory of official activity by a foreign state official which led to the commission of relevant crime (the consent to the presence of such an official being not determinative for this purpose). As regards the basic theoretical legal contours of this “territorial” exception to immunity ratione materiae , it is suggested that they could be outlined in one of the following ways: One approach might be to regard the immunity ratione materiae of spies, secret agents and other foreign officials performing official, but illegal activity in the territory of another state, as a special type of immunity ratione materiae , which is (unlike the treaty-based immunity ratione materiae or analogous customary immunity ratione materiae of members of diplomatic missions, consular posts, special missions etc.) subject to exception in case of illegal activity on the territory of a foreign State.

to be sufficient grounds for assuming that the official does not enjoy immunity ratione materiae from the jurisdiction of that state.”; ibid ., p. 53). 47 Second report of the Special Rapporteur, op. cit. sub 8, p. 53.

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