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CYIL 7 ȍ2016Ȏ IMMUNITY OF STATE OFFICIALS FROM FOREIGN CRIMINAL JURISDICTION
observed that “State practice concerning the application of possible exceptions to the
immunity ratione materiae of state officials in criminal proceedings before national
courts is scant and not too consistent.”35 Therefore, there is no denying that there are
also important sceptical voices questioning the existence or the scope of the exception
to immunity ratione materiae outlined above. The International Court of Justice, in
its judgment in the Arrest Warrant case, stated, as obiter dictum, that “[p]rovided
that it has jurisdiction under international law, a court of one State may try a former
Minister for Foreign Affairs of another State in respect of acts committed prior or
subsequent to his or her period of office as well as in respect of acts committed during
that period of office in a private capacity.”36 This obiter dictum has been interpreted
as implicitly denying the existence of the exception to immunity ratione materiae in
case of crimes under international law.37 However, the Court, in its decision in the
Arrest Warrant case, dealt with the issue of immunity ratione personae of incumbent
ministers of foreign affairs, not with immunity ratione materiae of former ministers
of foreign affairs and other state officials. To attach such far-reaching interpretative
consequences to an ommission in one general statement which is only part of an obiter
dictum of the Court does not seem to be adequate. Therefore, it is not surprising that
this possible implication of Arrest Warrant judgment for the existence of exceptions
to immunity ratione materiae has been critized by several authors as being not in
accordance with the current state of international law.38
On the other hand, the first ILC’s Special Rapporteur for the the topic of
the immunities of state officials from foreign criminal jurisdiction,39 Mr. Roman
Kolodkin, in his second report questioned the theoretical concept, described above,
exclusively to satisfy a personal interest, or when they constitute a misappropriation of the State’s
assets and resources.” Under article 16 of the resolution, the above provisions are applicable also to
former Heads of Government. For the text of the resolution see
resolutionsE/2001_van_02_en.PDF (visited on 1 June 2016).
35 J. FOAKES, op. cit. sub 9, p. 149 et seq. On the other hand, for a view that, “according to the vast
majority of the reviewed practice”, “former Heads of State and other State officials accused of crimes
pursuant to international law do not benefit from immunity ratione materiae”, as well for a thorough
analysis of various arguments underpinning the existence of an exception to immunity ratione materiae,
see R. Pedretti, op. cit. sub 20 (in general terms, the arguments put forward and conclusions defended
in this article are close to the arguments and conclusions in the treatise by R. Pedretti).
36 ICJ, Arrest Warrant, Judgment, para. 61.
37 R. O’KEEFE, Symposium on the Immunity of State Officials: An “International Crime” Exception
to the Immunity of State Officials from Foreign Criminal Jurisdiction: Not Currently, Not Likely,
American Journal of International Law, Vol. 109 (December 14, 2015), pp. 169-170.
38 ILC, Memorandum by the Secretariat, op. cit. sub 8, pp. 116-117 and 130-131. The memorandum
cites A. Cassese, according to whom, i.a., “that such a rule [exception to immunity ratione materiae
in respect of crimes under international law] has crystalized in the world community is evidenced
by a whole range of elements: not only the provisions of the various treaties or other international
instruments on international tribunals, but also international and national case law.”; A. CASSESE, op.
cit. sub 4, pp. 864-865.
39 Second Report of the Special Rapporteur, op. cit. sub 8, pp. 52 and 56.