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PAVEL CABAN
CYIL 7 ȍ2016Ȏ
Another possible approach, as suggested above, might be to regard the treaty-
based immunity
ratione materiae
or analogous customary immunity
ratione materiae
(of members of diplomatic missions, consular posts, special missions etc.), on the
one hand, and general immunity
ratione materiae
of other state officials (including
spies, secret agents and the like) as one and single, united regime subject to the same
rules and exceptions, and extend the application of the “territorial” exception to
immunity
ratione materiae
concerning the illegal activities in the territory of another
State also to immunity
ratione materiae
contained in relevant treaties (and analogous
norms of customary international law). As suggested above, this approach is based on
a principle, according to which, if the exception to immunity
ratione materiae
exists,
there does not seem to be a legitimate ground for differentiating between treaty-based
or analogous customary immunity
ratione materiae
of diplomats, consuls, members
of special missions
et al.
on the one hand, and, on the other hand, immunity
ratione
materiae
of all other State officials, including spies and secret agents.
This united approach to treaty-based and customary immunity
ratione materiae
in the context of “territorial” exception to immunity might be further refined by
connecting this approach with the rules on the responsibility of states for internationally
wrongful acts. If a state official who is not protected by immunity
ratione personae
but
only by immunity
ratione materiae
(
i.e.
foreign spy or secret agent, as well as former
foreign minister, diplomat,
etc
.), commits an “official crime” in the territory of a foreign
State, he should be subject to the criminal jurisdiction of such a foreign State as
any other, “ordinary” non-privileged perpetrator – until the home state of such an
official acknowledges that the official acted on behalf of the state,
i.e
. in the exercise
of his official functions, although illegaly (or until this fact is ascertained by the
prosecuting organs of a foreign state themselves). By such an acknowledgment, the
home state of the official would assume the responsibility under international law
for the “official” illegal act committed in the territory a foreign state; at the same
time, immunity
ratione materiae
would become applicable (unless the crime were
covered by the above suggested general exception to immunity
ratione materiae
based
on the exercise of universal jurisdiction over crimes under international law and
relevant “official” treaty crimes). However, it is suggested that an adequate reparation
for such an internationally wrongful act would have to be not only the provision
of a financial compensation and apology, but obligatorily also adequte prosecution
of the individual official (perpetrator), either by his home state or – after the home
state (explicitly or implicitly) waives immunity
ratione materiae
of the official –
before the organs and courts of the foreign state concerned.
48
In such a way, the
48
In the Rainbow Warrior case, France “could not ensure the execution in France of the prison sentences
pronounced by the New Zealand court”, since, as it added, (a) France and New Zealand were not
bound by any convention on the transfer of sentenced offenders, (b) “no sentence has been pronounced
in France against the two officers concerned” and, (c) “taking into account that these persons acted
under orders, they could not be subjected to fresh criminal prosecution after their transfer into the