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319

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

http://www.justitiaetpace.org/idiE/

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.