CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ IMMUNITY OF STATE OFFICIALS FROM FOREIGN CRIMINAL JURISDICTION Special Rapporteur, “the very special circumstances under which such acts would be carried out make it highly unlikely that the said acts would result in a claim of immunity.” With respect to article 10 (covering retroactive attribution to the state of acts performed by insurrectional movements), the Special Rapporteur notes that the “individuals who performed such acts did not hold the status of state officials at the time they carried out the said activities”, and, therefore, “it is … difficult to conclude that … the immunity ratione materiae could be generated a posteriori , when it was not applicable to the act at the time it occured.” Lastly, as regards article 11 (which deals with conduct which is not attributable to a state under the preceding articles, but which is nevertheless acknowledged and adopted by a state as its own), the Special Rapporteur points to the fact that “this criterion for attribution is fully justified for the purposes of determining State responsibility, but it is incompatible with the nature of immunity ratione materiae , which requires the acts covered by such immunity to have been performed in an official capacity at the time of commission. To deem this criterion for attribution applicable for the purposes of immunity would be equivalent to endowing the State with the right to declare, unilaterally and without any limit, that any act carried out by any person, irrespective of when the act was committed, could benefit from the immunity of State officials from foreign criminal jurisdiction.” 56 Without going into detail, a few general comments and suggestions seem to be pertinent with regard to the above observations by the Special Rapporteur. First, it is suggested that the general principle, pronounced by the House of Lords in the Jones v. Saudi Arabia (according to which the circumstances in which a state will be liable for the act of an official in international law mirror the circumstances in which the official will be immune in foreign domestic law) is applicable also in the context of criminal proceedings against foreign officials and represents, in principle, the most appropriate legal basis for distinguishing between the official conduct of a state official, which is covered by immunity ratione materiae (unless an exception to this immunity applies), and “private”, non-official conduct of a state official, which is not protected by such immunity. It seems that this principle integrates, logically and comprehensively, the regime of the immunities of state officials from foreign (criminal) jurisdiction, on the one hand, and the connected regime of responsibility of states under international law, on the other hand. Importantly, considering crimes under international law and other “official crimes” as acts which are not attributable to a state, in order to circumvent the immunity ratione materiae , would have the illogical consequence that the state itself on whose behalf the act was committed would not incur international responsibility for such crimes. 57 In addition, this principle of symmetry between the rules on attribution for the purpose of state responsibility

56 Ibid ., pp. 50-52. 57 R. PEDRETTI, op. cit . sub 20, pp. 332-333.

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