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CYIL 7 ȍ2016Ȏ
IMMUNITY OF STATE OFFICIALS FROM FOREIGN CRIMINAL JURISDICTION
by or at the instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity.
” (As regards the establishment of the jurisdiction,
the Convention provides that states parties must ensure that all acts of torture are
offences under its criminal law and establish its jurisdiction an prosecute the offender
i.a. when the victim is a national of that State, if that State considers it appropriate,
as well as in situations where the alleged offender is present in any territory under
its jurisdiction and it does not extradite him to any of the States which established
jurisdiction in accordance with the Convention. In addition, the Convention
obliges states parties to submit to their relevant authorities for prosecution or to
extradite to another state party those persons in their custody suspected of torture
as defined in the Convention.) Apparently, extra-territorial prosecution, envisaged
by the Convention, can occur only in cases where immunity
ratione materiae
would
ordinarily be applicable.
26
Thus, the rationale underlying the judgment in Pinochet
No. 3 seems to be the fact that it would be absurd and inconsistent with the
raison
d’etre
of the Convention to allow an application of immunity
ratione materiae
in cases
which would be “virtually co-extensive” with the offences defined by the Convention;
therefore, immunity
ratione materiae
must be regarded as having been displaced.
27
The same arguments against immunity, based on the inconsistency of the definitions
and obligations created by the treaty regime, on the one hand, and (customary)
immunity
ratione materiae,
on the other hand, are applicable in case of the crime
of enforced disappearance, which is defined, in Article 1 of the Convention for the
Protection of All Persons from Enforced Disappearance, as a crime committed “by
agents of the State or by persons or groups of persons acting with the authorization,
support or acquiescence of the State.”
As indicated above, on the basis of these conclusions it has been suggested
that the rationale for the existence of a general exception to immunity
ratione
materiae
lies in the development of international conventions and rules of customary
international law providing for the exercise of national extraterritorial (universal)
criminal jurisdiction over crimes,
28
which, by definition, have to or usually (as
a rule)
29
are committed in an official capacity and for which individual criminal
26
D. AKANDE, S. SHAH,
op. cit
. sub 4, p. 842.
27
J. FOAKES,
op. cit.
sub 9, p. 152; D. AKANDE, S. SHAH,
op. cit
. sub 4, pp. 841-2; R. CRYER,
H. FRIMAN, D. ROBINSON, E. WILMSHURST,
An Introduction to International Criminal Law
and Procedure
, Cambridge University Press, 2014, pp. 547-8 (“The most cautious interpretation,
restricted to the terms of the 1984 Torture Convention, is that, where official involvement is a necessary
element of a crime, there cannot be immunity by reason of official involvement; otherwise the crime
would be vacated of content.”).
28
See
i.a.
Rule 157 of the ICRC Study of Customary International Humanitarian Law: “States have the
right to vest universal jurisdiction in their national courts over war crimes.”; in J.-M. HENCKAERTS
AND LOUISE DOSWALD-BECK,
Customary International Humanitarian Law, Volume I - Rules
,
Cambridge University Press, 2005, pp. 604-7.
29
I.e.
they may be committed also by other persons than state officials and
not
on behalf of a State (for