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CYIL 7 ȍ2016Ȏ
IMMUNITY OF STATE OFFICIALS FROM FOREIGN CRIMINAL JURISDICTION
exception to immunity
ratione materiae
in respect of illegal acts performed in the
territory of a foreign state would find its expression in the application of the rules on
responsibility of states for internationally wrongful acts; at the same time, it would
cover also illegal activities performed on the terrritory of a foreign state by officials
enjoying immunity
ratione materiae
under relevant treaties.
7. Immunity
ratione materiae
and attribution of conduct to a state
under international law
As expressed in the memorandum on the topic of the immunity of state officials
from foreign criminal jurisdiction, prepared by the Secretariat of the International
Law Commission, “the question arises as to whether the criteria for distinguishing
between the ‘official’ and ‘private’ conduct correspond to those which govern the
attribution of conduct in the context of State responsibility for internationally
wrongful acts. If immunity
ratione materiae
is viewed as an implication of the
principle that conduct adopted by a State organ in the discharge of his or her
functions is to be attributed to the State, there appear to be strong reasons for
aligning the immunity regime with the rules on attribution of conduct for purposes
of State responsibility”.
49
This approach was adopted by the first Special Rapporteur,
50
as well as,
i.a.
, by the House of Lords in the case Jones v. Saudi Arabia (in the context
of immunity of state officials from foreign civil jurisdiction).
51
Referring to articles 4
(dealing with attribution of conduct of state organs to a State) and 7 (dealing with
hands of the French authorities.”; see the Ruling of the UN Secretary General of 6 July 1986, UN
Reports of International Arbitration Awards
, Vol. XIX, pp. 211 and 213.
49
ILC, Memorandum by the Secretariat,
op. cit
. sub 8, pp. 102-103. The articles on responsibility of
States for internationally wrongful acts do not explicitly provide the criteria for determining whether
the conduct of a state organ is to be considered as performed in the discharge of the official functions
of that organ. However, the commentary specifies that the determinative consideration is acting “in an
apparently official capacity, or under colour of authority”; ILC, Memorandum by the Secretariat,
op.
cit.
sub 8, pp. 102-103;
ILC Yearbook
, 2001, vol. II (Part Two), p. 42, para. 13. Draft article 2(f) of
the definitions section of the proposed Draft Articles on the Immunity of State Officials from Foreign
Criminal Jurisdiction (as provisionally adopted by the ILC) provides that “an ‘act performed in an official
capacity’ means any act performed by a State official in the exercise of State authority”; ILC, Immunity
of State officials from foreign criminal jurisdiction, Text of the draft articles provisionally adopted by
the Drafting Committee at the sixty-sixth session, doc. A/CN.4/L.850 (2014).
50
Second report of the Special Rapporteur,
op. cit.
sub 8, p. 14 (“The Special Rapporteur considers it right
to use the criterion of the attribution to the State of the conduct of an official in order to determine
whether the official has immunity
ratione materiae
and the scope of such immunity. At the same time,
the Special Rapporteur does not see objective grounds for drawing a distinction between the attribution
of conduct for the purposes of responsibility on the one hand and for the purposes of immunity on
the other. There can scarcely be grounds for asserting that one and the same act of an official is, for
the purposes of State responsibility, attributed to the State and considered to be its act, while, for the
purposes of immunity from jurisdiction, it is not attributed as such and is considered to be only the act
of an official.”).
51
Jones v. Saudi Arabia, House of Lords, [2006] UKHL 26,
ILR
, Vol. 129, p. 629
et seq.
;