322 / 536
308
PAVEL CABAN
CYIL 7 ȍ2016Ȏ
exception(s) to immunity
ratione materiae
and comment on sceptical and critical
voices questioning these exceptions.
2. Immunity
ratione personae
and immunity
ratione materiae
Before focusing on the exceptions to immunity
ratione materiae
of state officials
from foreign criminal jurisdiction, it is useful to briefly outline the basic concepts
and notions of the topic of the immunity of state officials from foreign criminal
jurisdiction.
Immunity
ratione personae
of state officials from foreign (criminal) jurisdiction,
or personal immunity, sometimes described as only a procedural bar to the exercise of
jurisdiction by a foreign state, is, according to a wide consensus in theory and practice,
accorded only to certain groups or categories of state officials (representatives)
and only for a certain period of time: relevant state officials enjoy these personal
immunities only as long as they remain in office. On the other hand, immunity
ratione personae
covers all acts performed by an official, whether in an official or
private capacity, during or prior to his or her term of office.
The International Law Commision dealt with the immunities
ratione personae
enjoyed by to the highest-ranking state officials under customary international law
and, provisionally, came to the conclusion that this customary law immunity
ratione
personae
is accorded to the so-called troika,
i.e.
Heads of State, Heads of Government
and Ministers for Foreign Affairs.
1
In addition, treaties (Vienna Convention on
Diplomatic Relations, Vienna Convention on Consular Relations, Vienna Convention
on Special Missions and similar multilateral and bilateral treaties according
immunities to State officials performing their temporary functions abroad)
2
and, as
the case may be, customary international law reflecting the rules contained in these
treaties confer other (manifestations of ) immunity
ratione personae
on diplomatic
agents, consular officers, members of special missions and other State officials who
represent their home state on the international level and temporarily perform their
functions outside the territory of their home state.
3
The justification for conferment
1
Draft article 4, paragraph 2, as provisionally adopted by the International Law Commission; ILC,
Report on the work of the sixty-fifth session, 2013, doc. A/68/10, p. 66. The International Court of
Justice elaborated on this customary law immunity
ratione personae
of ministers of foreign affairs in
its decision of 2002 in the case of Arrest Warrant of 11 April 2000 (Democratic Republic of Congo
v. Belgium).
2
The main difference between immunity
ratione personae
under the treaties mentioned above, as well as
under corresponding customary law rules, on the one hand, and customary immunity
ratione personae
of the troika (heads of state, heads of government and ministers of foreign affairs), on the other hand,
is that the immunity of the troika is wider, since it applies also to private visits of these highest-ranking
state officials abroad.
3
According to article 1, paragraph 2 of the draft articles on the immunity of State officials from foreign
criminal jurisdiction, as provisionally adopted by the ILC at its sixty-fifth session in 2013, “[t]he present
draft articles are without prejudice to the immunity from criminal jurisdiction enjoyed under special