CYIL vol. 7 (2016)

327 / 536

313
CYIL 7 ȍ2016Ȏ IMMUNITY OF STATE OFFICIALS FROM FOREIGN CRIMINAL JURISDICTION
crimes under international law and other treaty-based “official crimes”; see further
below), could be prosecuted, on the basis of universal jurisdiction, by all other states
except for the state (receiving state) where the official commited relevant crime as
part of performance of his official functions.
4. Possible exceptions to imunity ratione personae ?
Before focusing on exceptions to immunity ratione materiae, a short mention
should be made concerning possible exceptions to immunity ratione personae of
state officials from foreign criminal jurisdiction. According to the prevailing view,
customary law immunity ratione personae of highest-ranking serving state officials,
as well as immunity ratione personae defined in relevant treaties and reflected in
analogous customary norms, is absolute, i.e., it is not subject to the same exceptions
as immunity ratione materiae described below. (There are, of course, other generally
accepted exceptions: immunity ratione personae of incumbent officials may be (a) waived
by home state of the official, or (b) set aside in the proceedings before certain
international criminal tribunals, where these tribunals are entitled to exercise their
jurisdiction over such an official.)13 The absolute character of immunity ratione
personae from foreign criminal jurisdiction was upheld by the International Court
of Justice in the Arrest Warrant and Certain Questions of Mutual Assistance in
Criminal Matters cases,14 as well as in doctrine and state practice.15 Although there
sometimes appear opinions asserting that there exists or should exist an exception
to immunity ratione personae with respect to criminal proceedings before foreign
domestic courts,16 these opinions are not persuasive. Immunity ratione personae is,
unlike immunity ratione materiae, only a procedural bar to foreign courts‘ exercise of
13 See, i.a. article 27 of the Rome Statute of the International Criminal Court. See further ILC,
Memorandum by the Secretariat, op. cit. sub 8, p. 93; ICJ, Arrest Warrant, Judgment, para. 61.
14 See, i.a., ICJ, Arrest Warant, Judgment, para. 58 (“[The Court…] has been unable to deduce from …
practice that there exists under customary international law any form of exception to the rule according
immunity from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs, where
they are suspected of having committed war crimes or crimes against humanity.”).
15 Second report of the Special Raporteur, op. cit. sub 8, pp. 30 et seq. The Institute of International Law,
in its resolution on immunities from jurisdiction and execution of Heads of State and of Government
in international law, adopted at its 2001 session, came to the conclusion that “[i]n criminal matters,
the Head of State shall enjoy immunity from jurisdiction before the courts of a foreign State for any
crime he or she may have committed, regardless of its gravity” (article 2 of the resolution); for the text
of the resolution, see (visited
on 3 June 2016). In 2009, the Institute adopted Resolution on the Immunity from Jurisdiction of
the State and of Persons Who Act on Behalf of the State in Case of International Crimes – according
to article III, para. 1 of the resolution “[n]o immunity from jurisdiction other than personal immunity
in accordance with international law applies with regard to international crimes; … ”; for the text of
the resolution see (visited on
1 June 2016).
16 For an overview see ILC, Memorandum by the Secretariat, op. cit. sub 8, pp. 97-100.