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CYIL 7 ȍ2016Ȏ
IMMUNITY OF STATE OFFICIALS FROM FOREIGN CRIMINAL JURISDICTION
(a) the fact that acts which constitute crimes under international law are regularly
undertaken on behalf of the State, as a part of a State’s policy and using the relevant
state apparatus;
19
and (b) the principle that a State is to be held responsible for crimes
under international law committed by its organs.
20
The following text will not deal
comprehesively with all the above rationales, but will focus only on the concept and
arguments which, in my opinion, provide the most legitimate basis for the existence
of exceptions to immunity of states officials
ratione materiae
.
It seems that the prevailing and most persuasive theory justifying the general
exception to immunity
ratione materiae
is based on the developments in international
criminal law after the SecondWorldWar, namely on the fact that, as stated authoritatively
by the Nuremberg Tribunal, international law now imposes duties on individuals
directly, without any interposition of internal law and, thus, permits that responsibility
under international law for certain serious crimes (crimes under international law, i.e.
primarily crimes against humanity, war crimes, and genocide)
21
is attributed not only
to the state (according to the rules on the responsibility of states for internationally
wrongful acts), but also directly to the individual perpetrator.
22
International law
thus, in respect of crimes under international law, abandons the principle which
forms that rationale of immunity
ratione materiae
, namely that the acts performed
by a state official in the exercise of their official functions are not legally imputable
19
D. Akande, S. Shah,
op. cit
. sub 4, p. 832; Second report of the Special Rapporteur,
op. cit.
sub 8, p. 36;
ILC, Memorandum by the Secretariat,
op. cit
. sub 8, pp. 124-126.
20
ILC, Memorandum by the Secretariat,
op. cit
. sub 8, p. 126; R. Pedretti, Immunity of Heads of
State and State Officials for International Crimes, Brill/Nijhoff, 2014, pp. 332-333 and 335 (“Apart
from entailing the responsibility of the individual, the conduct of an individual in his or her official
capacity on the State’s behalf is also attributable to the State for the purpose of the latter’s international
responsibility, which is remedial rather than criminal in nature. … Considering crimes pursuant to
international law as private acts for the purpose of circumventing the immunity
ratione materiae
would
have the serious disadvantage that the State itself on whose behalf the act was committed would not
incur international responsibility
..
”.).
21
It seems that the crime of aggression, due to its extreme political sensitivity, deserves special treatment –
it is not usually included within the scope of universal jurisdiction and is subject to special jurisdictional
regime. See
i.a.
the Draft Code of Crimes against the Peace and Security of Mankind, adopted by the
International Law Commission at its forty-eighth session in 1996, according to which the crime of
aggression should be subject only to the jurisdiction of (at that time only potentially existing)
international criminal court or of the national courts of the alleged perpetrator.
22
See Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the
Judgment of the Tribunal; Yearbook of the International Law Commission, 1950, vol. II, p. 374
et seq
.;
J. Foakes,
op. cit
. sub 9, p. 149; D. Akande, S. Shah,
op. cit
. sub 4, p. 840; ILC, Memorandum by the
Secretariat,
op. cit
. sub 8, pp. 134-135. In the words of R. Pedretti, “[t]he official is now personally
responsible for the commission of crimes pursuant to international law. The principle of individual
criminal responsibility thus conflicts with immunity
ratione materiae
, which diverts responsibility for
official acts that are ordinarily perpetrated by individuals in their official capacity on the State’s behalf. In
this situation of conflicting rules of customary international law, the principle of the individual criminal
responsibility supersedes the rule on immunity
ratione materiae
.”; R. Pedretti,
op. cit
. sub 20, p. 334.