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liability is envisaged under international law.30 If this rationale is accepted, the list
of crimes for which an exception to immunity ratione materiae should apply would
include also genocide, war crimes and crimes against humanity,31 although with some
qualifications based on the concrete jurisdictional regimes contained in relevant
treaties.32 The reasons legitimizing this concept of exception to immunity ratione
materiae are summmarized by D. Akande and S. Shah as follows: “arguably, the
primary reason for permitting universal jurisdiction is that persons who commit such
international crimes are often connected to the state concerned and might escape
justice if only their home state had jurisdiction. To the extent that rules relating to
universal jurisdiction are intended to avoid impunity often caused by the failure of
states to take action against persons acting on their behalf, those rules contemplate
prosecution of those officials by other states.”33
The current status of this (suggested) exception to immunity ratione materiae was
summarized in the doctrine as follows: “A considerable body of international cases,
national cases, other state practice and academic commentary supports the view that
functional immunity does nor preclude prosecution for serious international crimes,
which is consistent with the broader reading of Pinochet. … However, the failure of
the ICJ [in the Arrest Warrant case] to mention the principle, as well as a few outlying
cases, means that the proposition is not free from doubt.”34 Other commentators
example by members of a non-state entity in a non-international armed conflict) – in case of these
other, “non-state”, perpetrators the immunity ratione materiae would not be applicable at all.
30 J. Foakes, op. cit. sub 9, p. 153.
31 As pointed by D. AKANDE AND S. SHAH, “[w]hile most international crimes (i.e. genocide, war
crimes, and crimes against humanity) as defined in the ICC Statute and other relevant conventions are
not limited to official acts (as is the case with torture and enforced disappearance), it is clearly the case
that these crimes are intended to capture the conduct of those acting in the exercise of official capacity.”;
op. cit. sub 4, p. 843.
32 For a detailed overview of the scope of jurisdiction over these crimes see D. AKANDE, S. SHAH,
op. cit. sub 4, pp. 843-6.
33 D. Akande, S. Shah, op. cit. sub 4, p. 846.
34 R. CRYER et al. op. cit. sub 27, p. 549. For an overview of the practice of States and opinions in the
doctrine see ILC, Memorandum by the Secretariat, op. cit. sub 8, p. 116 et seq. See further ILA, London
Conference (2000), Committee on International Human Rights Law and Practice, Final Report on the
Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offences, p. 21 (Conclusions and
recommendations): “4. No immunities in respect of gross human rights offences subject to universal
jurisdiction shall apply on the grounds that crimes were perpetrated in an official capacity.”; for the
text of the Final Report, see (“Conference
Report London”) (visited on 1 June 2016). See further article 13 of the resolution, adopted by the
Institute of International Law at its 2001 session, on immunities from jurisdiction and execution
of Heads of State and of Government in international law: “1. A former Head of State enjoys no
inviolability in the territory of a foreign State. 2. Nor does he or she enjoy immunity from jurisdiction,
in criminal, civil or administrative proceedings, except in respect of acts which are performed in the
exercise of official functions and relate to the exercise thereof. Nevertheless, he or she may be prosecuted
and tried when the acts alleged constitute a crime under international law, or when they are performed