CYIL vol. 7 (2016)

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PAVEL CABAN

CYIL 7 ȍ2016Ȏ

jurisdiction (protecting, unlike immunity

ratione materiae

, only certain group of state

officials, only temporarily, and, with the exception of the “troika”, only in a concrete

receiving state) and, as such, is not in conflict with the rules on which the exceptions

to immunity

ratione materiae

are based. As summarized by the ILC Secretariat, “the

operation of immunity

ratione personae

even with respect to international crimes is

generally justified by the need to ensure the effective performance of the functions

of the officials concerned on behalf of their state (which appears to be particularly

pressing when the individual is a high-ranking official and during his period of office)

and the proper functioning of the network of mutual inter-State relations.”

5. General exception to immunity

ratione materiae

As far as exceptions to immunity

ratione materiae

of State officials from foreign

criminal jurisdiction are concerned, various rationales for their existence are being

discussed in the doctrine and practice. The first ILC Special Rapporteur for the

topic of immunities of state officials from foreign criminal jurisdiction, Mr. Roman

Kolodkin, summarized these possible rationales as follows: (a) the grave criminal

acts committed by an official cannot under international law be considered as acts

performed in an official capacity; (b) since an international crime committed by an

official in an official capacity is atributed not only to the State but also to the official,

then he is not protected by immunity

ratione materiae

in criminal proceedings;

acts prevail over the norm concerning immunity and render immunity invalid

when applied to crimes of this kind; (d) a norm of customary international law has

emerged providing for an exception to immunity

ratione materiae

in a case where an

official has committed grave crimes under international law; (e) a link is being drawn

between the existence of universal jurisdiction in respect of the gravest crimes and

the invalidity of immunity as it applies to such crimes; (f ) an analogous link is seen

between the obligation

aut dedere aut iudicare

and the invalidity of immunity as it

applies to crimes in respect of which such an obligation exist. As commented by the

Special Rapporteur, “in one way or another, these rationales for exceptions are fairly

close to one another”.

Some of these rationales, taken on their own, were challenged in the doctrine.

Thus, the argument that the crimes under international law committed by state

officials should not be, due to their illegality and seriousness, regarded as official

acts of the state (since they would not fall within the “normal” functions of the

State), has been, in my opinion, convincingly refuted by arguments based on:

ILC, Memorandum by the Secretariat,

op. cit.

sub 8, p. 96.

Second Report of the

Special Rapporteur

op. cit

. sub 8, p. 32. For an overview of legal literature,

international and national practice and various possible legal basis for an exception to immunity

ratione

materiae

in respect of crimes under international law see further ILC, Memorandum by the Secretariat,

op. cit.

sub 8, pp. 123-137.