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CYIL 7 ȍ2016Ȏ
IMMUNITY OF STATE OFFICIALS FROM FOREIGN CRIMINAL JURISDICTION
It seems that these general observations concerning the relevance of consent of
the territorial state should be specified. An official, who is present and performs official
activites in the territory of a foreign state will, as a rule, enjoy (treaty or customary)
immunities
ratione personae
(of a member of a diplomatic mission, consular post,
special mission etc.) protecting him during the time of his visit in a foreign State
against any prosecution, including against any prosecution concerning an “official
crime” committed on the territory of such a foreign state (the members of the
“troika” being protected by this immunity
ratione personae
not only during their
official visit in a foreign state, but during the whole term of their office). On the other
hand, it seems that the consent of a state with the presence of a foreign official on
its territory, which does not include the granting of immunities
ratione personae
to
such a foreign official, is not a sufficient ground for excluding the application of the
(suggested) exception to immunity
ratione materiae
in case of illegal acts performed
in the territory of a foreign state. For example, if a secret agent enters lawfully, for
example on the basis of a temporary touristic visa,
i.e.
with the consent of a foreign
State, the territory of a foreign State and commits there, without the consent of the
foreign state, an “official crime” under the direction or instruction of his home State,
the “territorial” exception to immunity
ratione materiae
should be applicable. Similar
considerations should apply in case of a hypothetical scenario of an official who has
visited another state for official talks as a member of a special mission, but beyond the
scope of the talks engages in espionage or terrorist activity (immunity
ratione personae
would protect such an official during his official visit in a foreign state, but after the
visit is over, the territotial exception to immunity
ratione materiae
would become
applicable).
47
Thus, it seems that in determining whether illegal acts carried out by
a state official in the territory of a foreign State are not covered by immunity
ratione
materiae
, the crucial consideration should be only whether or not the territorial state
had consented to the discharge in its territory of
official activity
by a foreign state
official
which led to the commission of relevant crime
(the consent to the presence of
such an official being not determinative for this purpose).
As regards the basic theoretical legal contours of this “territorial” exception to
immunity
ratione materiae
, it is suggested that they could be outlined in one of the
following ways: One approach might be to regard the immunity
ratione materiae
of
spies, secret agents and other foreign officials performing official, but illegal activity
in the territory of another state, as a special type of immunity
ratione materiae
, which is
(unlike the treaty-based immunity
ratione materiae
or analogous customary immunity
ratione materiae
of members of diplomatic missions, consular posts, special missions
etc.) subject to exception in case of illegal activity on the territory of a foreign State.
to be sufficient grounds for assuming that the official does not enjoy immunity
ratione materiae
from
the jurisdiction of that state.”;
ibid
., p. 53).
47
Second report of the Special Rapporteur,
op. cit.
sub 8, p. 53.