323 / 464
309
GAPS IN THE LEGAL REGIME OF INTERSTATE COOPERATION IN PROSECUTING CRIMES
relevant crimes. On the other hand, these conventions leave intact the customary law
immunity
ratione personae
of State officials from foreign criminal jurisdiction,
63
and,
it is alleged, rightly so: the purpose of the immunity
ratione personae
is to protect
State officials (the most senior officials, as well as members of diplomatic missions
and special missions) only during their term of office and to enable them to travel
and represent their home State abroad, freely and without hinderance (unlike the
immunity
ratione materiae
, which protects State officials “forever”, even after they
leave the office, but covers only acts which the State official performed in his or
her official capacity).
64
Therefore, it seems that immunity
ratione personae
under
international law (unlike immunity
ratione materiae
) should remain intact when it
comes to the exercise of the national courts‘ jurisdiction of individual states over
serious crimes, including crimes against humanity; on the other hand, immunity
ratione personae
(as well as immunity
ratione materiae
) has no place and (has to)
become irrelevant before international criminal tribunals, namely the International
Criminal Court. Therefore, it is suggested that the inclusion of Article 6 in the
Proposed Convention is questionable and requires further consideration.
Finally, the Proposed Convention aims to establish a new institutional mechanism
consisting of the conference of States Parties (which should meet regularly every three
years), a committee of ten independent experts, which should review information
submittedbyStatesParties and issue comments, observations or recommendations, and
a permanent secretariat. According to the commentary to the Proposed Convention,
this institutional mechanism “draws heavily upon” mechanisms established by the
Rome Statute, Enforced Disappearance Convention and UN Convention against
Corruption;
65
in addition, the Second Protocol to the Hague Convention of 1954 for
the Protection of Cultural Property in the Event of Armed Conflict (1999) provides
for a similar mechanism. On the other hand, as it was suggested at the meeting of
experts in May 2014, building on the human rights treaty system might not be the
States‘ preferred institutional mechanism for crimes against humanity, as
, i.a.
, “there
is already a sense among States that the existing human rights reporting requirements
63
Unlike the exception to the immunity
ratione materiae
, the exception to the imunity
ratione personae
would have to be stated explicitly in these conventions.
64
The immunity
ratione personae
covers all acts performed, whether in a private or official capacity, by
certain (highest) representatives of foreign States, but protects these persons only “during their term
of office”; after they leave their office, they are entitled only to the immunity
ratione materiae
which
covers (only) acts performed in their official capacity. The topic of immunities
ratione personae
and
ratione materiae
of State officials from foreign criminal jurisdiction is currently on the agenda of the
International Law Commission (see International Law Commission, Report on the work of its sixty-
sixth session (5 May to 6 June and 7 July to 8 August 2014), UN doc. A/69/10, p. 229
et seq.
). See also
discussion on this topic at the experts’ meeting organized by Crimes Against Humanity Initiative in
Geneva in May 2014,
op. cit.
sub 45, pp. 19-20.
65
See the commentary to the Proposed Convention,
op. cit.
sub 51, p. 39.