CYIL vol. 7 (2016)

320

PAVEL CABAN

CYIL 7 ȍ2016Ȏ

of the exception to immunity

ratione materiae

, asserting that the concept “not only is

… not the prevailing viewpoint in the doctrine but it would also appear that it is not

as yet exerting a decisive influence on the practice and positions of States” and that it

is “difficult to talk of exceptions to immunity as having been developed into a norm of

customary international law, just as, however, it is impossible to assert definitively that

there is a trend toward the establishment of such a norm.”

Evidently, the same facts on

the practice of states and opinions in the legal literature can be seen and interpreted in

quite a different way. However, it is suggested that the more positive assessments cited

above concerning the existence of an exception to immunity

ratione materiae

reflect

more adequately current trends in state practice and legal doctrine, as well the openness

to the “progressive development of international law” in this area.

Nevertheless, a strongly formulated substantive critique of this concept of the

exception to immunity

ratione materiae

is still being presented, recently,

i.a.

, by

Professor Roger O’Keefe. He sees the “fatal flaw” of all the above mentioned normative

arguments in favour of the exception to immunity

ratione materiae

in case of crimes

under international law in the following (alleged) logical problem: according to

R. O’Keefe, (a) the arguments in favour of the exception to immunity

ratione materiae

presuppose the legal characterization of the alleged conduct as criminal; (b) the legal

wrongfulness of the alleged conduct is a question for determination on the merits; and

exists to prevent.

However, such an argument does not seem to be persuasive. It is

not disputed that, in the proceedings before a national court, the immunity has to be

established preliminary, before the hearing on the merits of the case (

in limine litis

or at the earliest time after the establishment of the facts, on which the entitlement to

And there are even more critical assessments of the current status of customary international law in

this area: According to ROGER O’KEEFE, “[o]nly on the most skewed approach to the identification

of rules of customary international law could one currently discern any form of ‚international crime‘

exception to the immunity

ratione materiae

from foreign criminal jurisdiction … Indeed, there is

nothing even approaching the widespread and representative concordance of state practice and

concomitant

opinio iuris

necessary for a rule of customary international law. Nor, for that matter, does

practice or international jurisprudence exhibit any trend in favour of an ‚international crime‘ exception

to immunity

ratione materiae

.”; R. O’Keefe,

op. cit.

sub 37, p. 168.

ROGER O’KEEFE,

International Criminal Law

, Oxford University Press, 2015, pp. 447-448. See also

R. O’Keefe,

op. cit.

sub 37, pp. 168-169. Roger O’Keefe refers to the judgment of the International

Court of Justice in the Jurisdictional Immunities of the State case, where the Court identifies this “logical

problem” in the context of the immunity of states from foreign civil jurisdiction; ICJ, Jurisdictional

Immunities of the State (Germany v. Italy, Greece intervening), Judgment of 3 February 2012, para. 82

(“… If immunity were to be dependent upon the State actually having committed a serious violation

of international human rights law or the law of armed conflict, then it would become necessary for the

national court to hold an enquiry into the merits in order to determine whether it had jurisdiction.

If, on the other hand, the mere allegation that the State had committed such wrongful acts were to be

sufficient to deprive the State of its entitlement to immunity, immunity could, in effect, be negated

simply by skilful construction of the claim.”).