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PAVEL CABAN

CYIL 7 ȍ2016Ȏ

(attributable) to the individual official, but (only) to his home state, and creates a basis

for an exception to this type of immunity of State officials. According to opinions

in the doctrine, if crimes under international law are not duly prosecuted by the

state with territorial or (active or passive) personal jurisdiction (and the crime is not

subject to the jurisdiction of the International Criminal Court or other international

criminal tribunal), each state is entitled to exercise universal jurisdiction over such

crime.

Such a principle of universal jurisdiction is only permissive under customary

international law (and may become mandatory under treaty law); nevertheless it

conflicts with immunity

ratione materiae

and implies that the State officials should not

be able to invoke immunity

ratione materiae

for such crimes in criminal proceedings

before foreign courts. In the words of D. Akande and S. Shah, “where the application

of the prior immunity would deprive the subsequent jurisdictional rule [providing

for prosecution of state officials for crimes committed in their official capacity] of

practically all meaning, then the only logical conclusion must be that the subsequent

jurisdictional rule is to be regarded as a removal of the immunity. Even where the

subsequent jurisdictional rule is not practically co-extensive with the rule according

immunity, the subsequent jurisdictional rule will remove immunity where the

jurisdictional rule contemplates and provides authority for national proceedings in

circumstances which would otherwise be covered by immunity”.

This approach seems to have been adopted, in the context of treaty law, by the

House of Lords in the famous decision Pinochet (No. 3) of 1999.

The main issue

dealt with in this judgment was the relationship of immunity

ratione materiae

a former head of state and the regime of the United Nations Convention against

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The

House of Lords judges came to the conclusion that the immunity

ratione materiae

(of a former head of state) is not applicable to the extent the Convention obliges its

States Parties to establish jurisdiction over and prosecute the crime of torture, which is

defined (in article 1 paragraph 1 of the Convention) as “pain or suffering …

inflicted

The (possible existing) concrete conditions for the exercise of universal jurisdiction (such as the

subisidiarity of its exercise and the presence of the alleged perpetrator in the prosecuting state at the

time of the commencement of the trial) would limit the concrete application of this general theoretical

concept. See

i.a.

P. CABAN, Universal Jurisdiction Under Customary International Law, International

Conventions and Criminal Law of the Czech Republic: Comments,

Czech Yearbook of Public & Private

International Law

, Vol. 4, 2013, pp. 178-185.

D. AKANDE, S. SHAH,

op. cit.

sub 4, pp. 840-841. See further R. PEDRETTI,

op. cit

. sub 20,

pp. 362-368; R. Pedretti argues that a conflict of norms between immunity

ratione materiae

and

universal jurisdiction is to be solved by the application of rules

lex posterior derogat legi priori

and

lex

specialis derogat legi generali

, where the “universal jurisdiction” (under customary international law and

treaty law) over “crimes pursuant to international law” is

lex posterior

and more specific rule, and thus

supersedes or prevails over immunity

ratione materiae

(which is, in this case,

lex prior

and

lex generalis

Regina v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3), House of

Lords, 24 March 1999; in:

International Law Reports

, vol. 119, p. 137

et seq