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325

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.

;