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CYIL 7 ȍ2016Ȏ
IMMUNITY OF STATE OFFICIALS FROM FOREIGN CRIMINAL JURISDICTION
immunity
ratione personae
of heads of state, heads of government and ministers of
foreign affairs has the same
erga omnes
character. On the other hand, immunity
ratione
personae
– of diplomatic agents, consular officers, members of special missions etc.
– under special treaties and analougous customary regimes is, in principle, effective
only in relation to a concrete receiving state.)
3. Customary and treaty-based immunity
ratione materiae
Do representatives of states performing their official functions abroad (members
of diplomatic missions, consular posts, special missions etc.) enjoy, with respect to
acts performed by them in the exercise of their official functions, the same immunity
ratione materiae
as all other state official perfoming their functions in their home state?
If so, the only difference between immunity
ratione materiae
, which is contained in
relevant treaties
10
(and analogous customary immunity
ratione materiae
reflecting the
regime of these treaties) on the one hand, and, on the other hand, general customary
immunity
ratione materiae
of all other state officials, would be the fact that immunity
ratione materiae
of officials performing their functions abroad is explicitly mentioned
in the relevant treaties. Further, if treaty-based immunity
ratione materiae
is only
a simple (partial) reflection of general immunity
ratione materiae
available to all
state officials under customary international law, it should be also subject to the same
exceptions based on the exercise of universal jurisdiction over certain serious crimes or
on the fact that the crime was committed on the territory of the forum state (see further
below). However, this conclusion is by no means accepted universally. According to
other opinions, the treaty based immunity
ratione materiae
has, in comparison to
general customary immunity
ratione materiae,
its specific characteristics: it is asserted
that it is absolute and cannot be subject to exceptions, namely that it cannot be
superseded by the emerging customary international law and existing treaty rules
according universal jurisdiction over crimes under international law or relevant
“official crimes”. This view, according to which the treaty based immunity
ratione
materiae
has a special status, has been supported in practice as well as in doctrine.
11
10
Namely article 38, paragraph 1 and article 39 paragraph 2 of the Vienna Convention on Diplomatic
Relations; article 43, paragraph 1, article 53, paragraph 4 and article 71, paragraph 1 of the Vienna
Convention on Consular Relations; article 40, paragraph 1 and article 43, paragraph 2 of the Vienna
Convention on Special Missions.
11
Case No 2 BvR 1516/96, Federal Republic of Germany, Federal Constitutional Court (Bundesver-
fassungsgericht) (Second Senate), 10 June 1997; in: ILR, vol. 115, pp. 596
et seq
.; D. Akande, S. Shah,
op. cit.
sub 4, pp. 849-851 (“As the immunity
ratione materiae
of former diplomats is treaty-based and there
is no evidence to suggest that the VCDR has fallen into disuse, it is difficult to argue that this immunity
is superseded by the emerging customary international law rule according universal jurisdiction. It would
therefore appear that the state to which a former diplomat was accredited is bound to respect his or her
immunity
ratione materiae
, even if the diplomat is charged with having committed an international crime.
However, the treaty rule according diplomatic immunity
ratione materiae
does not apply with respect to
third states. With respect to those states the position of the former diplomat is the same as that of other