CYIL Vol. 7, 2016

PAVEL CABAN CYIL 7 ȍ2016Ȏ and rules on immunity ratione materiae of state officials is fully compatible with the application of suggested exceptions to immunity ratione materiae : first, the exception for crimes under international law and other crimes subject to extraterritorial (universal) jurisdiction, described above, would be fully applicable irrespective of the attribution of the acts to the home state of the offender; second, the possible “territorial exception” to immunity ratione materiae should be fully applicable as well, whether on the basis of a direct application of the exception in case of the illegal activities in the territory of another state, or on the basis of the indirect application of this exception via the rules on responsibility of states for internationally wrongful acts, as suggested above. Secondly, it seems that the application of some of the criteria for attribution for purpose of the responsibility of states will be minimized simply by the factual circumstances which are covered by these criteria (for example, attribution of state responsibility under articles 9, 10 and 11 seems to be a very rare phenomenon in the context of possible application of immunity ratione materiae ). As regards the concern that states could abuse “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 (ratione materiae) of State officials from foreign criminal jurisdiction”, it can be noted that states have a similar “right” as regards the application of immunities ratione personae ; in addition, as suggested above, such a “right” of a state in case of the application of immunity ratione materiae would not in any way limit the application of suggested exceptions to immunity ratione materiae . Lastly, the application of some of the criteria for attribution of responsibility of states might be limited or excluded by the narrow definition of “state official”; 58 alternatively, if a broader definition of “state official”, which would include also “ de facto ” state officials, would be eventually adopted (which – if the unity of the system of the rules on resposibility of states and rules on immunity is to be preserved – seems to be prima facie a well-founded approach), 59 the above 58 Draft article 2(e) of the definitions section of the proposed Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction (as provisionally adopted by the ILC): “‘State official’ means any individual who represents the State or who exercises State functions.”; draft article 5 (on persons enjoying immunity ratione materiae ): “State officials acting as such enjoy immunity ratione materiae from the exercise of foreign criminal jurisdiction.” ILC, Immunity of State officials from foreign criminal jurisdiction, Text of the draft articles provisionally adopted by the Drafting Committee at the sixty-sixth session, doc. A/CN.4/L.850 (2014). 59 ILC, Report of its seventieth session, 2015, UN doc. A/70/10, p. 125 (“… several members wondered about the basis on which the Special Rapporteur had made the assertion that the term ‘State official’ excluded for the purposes of immunity individuals who were usually regarded as de facto officials. There was need, for some members, to take a broader approach to cover acts of a person acting under governmental direction and control.”). Also other authors argue that immunity ratione materiae covers official acts of any de iure or de facto state agent; A. CASSESE, op. cit . sub 4, p. 863; D. AKANDE, S. SHAH, op. cit. sub 4, p. 825 (“Thus, this conduct-based immunity may be relied on by former officials … It may also be relied on by persons or bodies that are not state officials or entities but have acted on behalf of the State.”).

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