CYIL Vol. 7, 2016

PAVEL CABAN CYIL 7 ȍ2016Ȏ Another possible approach, as suggested above, might be to regard the treaty- based immunity ratione materiae or analogous customary immunity ratione materiae (of members of diplomatic missions, consular posts, special missions etc.), on the one hand, and general immunity ratione materiae of other state officials (including spies, secret agents and the like) as one and single, united regime subject to the same rules and exceptions, and extend the application of the “territorial” exception to immunity ratione materiae concerning the illegal activities in the territory of another State also to immunity ratione materiae contained in relevant treaties (and analogous norms of customary international law). As suggested above, this approach is based on a principle, according to which, if the exception to immunity ratione materiae exists, there does not seem to be a legitimate ground for differentiating between treaty-based or analogous customary immunity ratione materiae of diplomats, consuls, members of special missions et al. on the one hand, and, on the other hand, immunity ratione materiae of all other State officials, including spies and secret agents. This united approach to treaty-based and customary immunity ratione materiae in the context of “territorial” exception to immunity might be further refined by connecting this approach with the rules on the responsibility of states for internationally wrongful acts. If a state official who is not protected by immunity ratione personae but only by immunity ratione materiae ( i.e. foreign spy or secret agent, as well as former foreign minister, diplomat, etc .), commits an “official crime” in the territory of a foreign State, he should be subject to the criminal jurisdiction of such a foreign State as any other, “ordinary” non-privileged perpetrator – until the home state of such an official acknowledges that the official acted on behalf of the state, i.e . in the exercise of his official functions, although illegaly (or until this fact is ascertained by the prosecuting organs of a foreign state themselves). By such an acknowledgment, the home state of the official would assume the responsibility under international law for the “official” illegal act committed in the territory a foreign state; at the same time, immunity ratione materiae would become applicable (unless the crime were covered by the above suggested general exception to immunity ratione materiae based on the exercise of universal jurisdiction over crimes under international law and relevant “official” treaty crimes). However, it is suggested that an adequate reparation for such an internationally wrongful act would have to be not only the provision of a financial compensation and apology, but obligatorily also adequte prosecution of the individual official (perpetrator), either by his home state or – after the home state (explicitly or implicitly) waives immunity ratione materiae of the official – before the organs and courts of the foreign state concerned. 48 In such a way, the 48 In the Rainbow Warrior case, France “could not ensure the execution in France of the prison sentences pronounced by the New Zealand court”, since, as it added, (a) France and New Zealand were not bound by any convention on the transfer of sentenced offenders, (b) “no sentence has been pronounced in France against the two officers concerned” and, (c) “taking into account that these persons acted under orders, they could not be subjected to fresh criminal prosecution after their transfer into the

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