CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ IMMUNITY OF STATE OFFICIALS FROM FOREIGN CRIMINAL JURISDICTION principles and criteria should ensure that there will not appear any gaps as regards the proper and full application of suggested exceptions to immunity ratione materiae . Any differentiation between the concept of “official capacity” for the purpose of state responsibility, on the one hand, and for the purpose of immunity ratione materiae, on the other hand, could “give rise to an understanding of international crimes as acts that are not attributable to the State and can only be attributed to the perpetrator”, 60 thus eliminating the model of “single act, dual responsibility”. 61 At the same time, it is clear that, if impunity is to be restricted, this approach requires proper application of exceptions to immunity ratione materiae , as suggested above. 62 8. Conclusion In this article, I attempted to describe (not systematically) the basic arguments in favour and against the existence of exceptions to immunity ratione materiae of state officials from foreign criminal jurisdcition and to briefly summarize and present legal concepts which could justify the existence of these exceptions. Several of the issues touched upon above are by no means settled; it is hoped that they will be properly “dissected” by the International Law Commission as part of its consideration of topic “Immunities of State officials from foreign criminal jurisdiction”, and, afterwards, refined in doctrine and applied in practice. On the other hand, it is sugested that the widespread acceptance of the very existence of two types of exceptions to immunity ratione materiae described above is only a matter of time (and/or progressive development of international law) and that their basic contours can be already identified. It seems that the existence of these exceptions is inevitable, if international community takes seriously its efforts to limit the impunity for crimes under international law and other serious “official crimes”; it also seems that the legal rationale underpinning these exceptions could fit in logically and neatly into the system of relevant norms of international law. There is no denying that the theoretical formulation of these exceptions is one thing, and their application in practice, influenced by political considerations and other non-legal issues, another thing. Nevertheless, even if practical application of these exceptions is very sporadic, the very existence of these exceptions would have its merits, since “the knowledge that the cloak of immunity will be unveiled upon completion of office” should serve as a deterrence to prevent the commission of serious “official crimes” by state officials of all ranks. 60 Fourth Report of the Special Rapporteur, op. cit . sub 53, p. 54. 61 I.e. the possibility that the same act may give rise to two different types of responsibility (liability): responsibility of a state under international law (and, as the case may be, civil liability of a state under foreign domestic law), and criminal liability of the individual perpetrator – state official. See Fourth Report of the Special Rapporteur, op. cit. sub 53, pp. 43 and 54. 62 See also Fourth Report of the Special Rapporteur, op. cit. sub 53, p. 55. The exceptions to immunity ratione materiae will be the subject of the fifth report by the Special Rapporteur (as of 30 May 2016, the fifth report has not yet been available).

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