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CYIL 7 ȍ2016Ȏ
IMMUNITY OF STATE OFFICIALS FROM FOREIGN CRIMINAL JURISDICTION
of immunities
ratione personae
is primarily to facilitate the smooth conduct of
international relations, which requires temporary protection, on the basis of absolute
immunity from criminal (as well as administrative and civil) jurisdiction, of officials
exercising their representative functions abroad.
4
Importantly, the absolute character
of (temporary) immunity
ratione personae
means that the immunity extends also to
cases of crimes under international law allegedly committed by state officials enjoying
this type of immunity.
5
On the other hand, immunity
ratione materiae
, or “functional” (“conduct-based”)
immunity, is regarded as a substantive defence against the exercise of jurisdiction of
a foreign state, predicated on the ground that the official acts of a state organ are to
be attributable to the State and not the individual official. This type of immunity
covers only acts performed by state officials in their official capacity (acts performed
on behalf of the state), which means that, unlike immunity
ratione personae
, it does
not provide any protection with respect to private acts of state officials. On the other
hand, this type of immunity may be relied on by all state officials, regardless of their
rank in state hierarchy, and does not cease to exist when the official leaves his office,
which means that it protects also former officials with respect to their official acts
performed during their term of office.
6
The conferment of immunity
ratione materiae
is based on the fact that the individual official is not to be held legally responsible
(before foreign courts) for the official acts, since these acts are, in effect, the acts of
his home state – or, in other words, the acts performed by the state official in the
exercise of official functions are not legally imputable (attributable) to the individual
official, but to his home state, since the acts were carried out on behalf of a State,
rules of international law, in particular by persons connected with diplomatic missions, consular posts,
special missions, international organizations and military forces of a State.” In its comentary, the ILC
considered, with regard to these special “treaty-based and custom-based” regimes, that “these are legal
regimes that are well established in international law and that the present draft articles should not affect
their content and application”. The ILC sees such “special rules” as “coexisting with the regime defined
in the present draft articles, the special regime being applied in the event of any conflict between the
two regimes.”; ILC, Report on the work of the sixty-fifth session, 2013,
op. cit.
sub 1, pp. 55-56.
4
On the definition of immunity
ratione personae
, see
, i.a.
: DAPO AKANDE, SANGEETA SHAH,
Immunities of State Officials, International Crimes, and Foreign Domestic Courts,
The European
Journal of International Law
, Vol. 21, no. 4, pp. 818-825; ANTONIO CASSESE, When May Senior
State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case,
The
European Journal of International Law
, Vol. 13 (2002), no. 4, pp. 862-3; ROBERT JENNINGS, A.
WATTS,
Oppenheim’s International Law
, Vol. I, 9th ed. (1992), Longman, p. 346.
5
D. AKANDE, S. SHAH,
op. cit
. sub 4, pp. 819 and 823. The International Court of Justice confirmed
this aspect of immunity
ratione personae
with regard to the customary immunity of incumbent ministers
of foreign affairs in its decision in the Arrest Warrant Case. For more details on this aspect of immunity
ratione personae
see further below.
6
Both types of immunity –
ratione personae
and
ratione materiae
– coexist and overlap during the term
of office of state officials; once a state official leaves his office, only immunity
ratione materiae
remains
effective.