341 / 536
327
CYIL 7 ȍ2016Ȏ
IMMUNITY OF STATE OFFICIALS FROM FOREIGN CRIMINAL JURISDICTION
Special Rapporteur, “the very special circumstances under which such acts would
be carried out make it highly unlikely that the said acts would result in a claim of
immunity.” With respect to article 10 (covering retroactive attribution to the state
of acts performed by insurrectional movements), the Special Rapporteur notes that
the “individuals who performed such acts did not hold the status of state officials
at the time they carried out the said activities”, and, therefore, “it is … difficult to
conclude that … the immunity
ratione materiae
could be generated
a posteriori
, when
it was not applicable to the act at the time it occured.” Lastly, as regards article 11
(which deals with conduct which is not attributable to a state under the preceding
articles, but which is nevertheless acknowledged and adopted by a state as its own),
the Special Rapporteur points to the fact that “this criterion for attribution is fully
justified for the purposes of determining State responsibility, but it is incompatible
with the nature of immunity
ratione materiae
, which requires the acts covered by such
immunity to have been performed in an official capacity at the time of commission.
To deem this criterion for attribution applicable for the purposes of immunity would be
equivalent to endowing the State with the right to declare, unilaterally and without
any limit, that any act carried out by any person, irrespective of when the act was
committed, could benefit from the immunity of State officials from foreign criminal
jurisdiction.”
56
Without going into detail, a few general comments and suggestions seem to be
pertinent with regard to the above observations by the Special Rapporteur. First, it
is suggested that the general principle, pronounced by the House of Lords in the
Jones v. Saudi Arabia (according to which the circumstances in which a state will
be liable for the act of an official in international law mirror the circumstances in
which the official will be immune in foreign domestic law) is applicable also in the
context of criminal proceedings against foreign officials and represents, in principle,
the most appropriate legal basis for distinguishing between the official conduct of
a state official, which is covered by immunity
ratione materiae
(unless an exception to
this immunity applies), and “private”, non-official conduct of a state official, which
is not protected by such immunity. It seems that this principle integrates, logically
and comprehensively, the regime of the immunities of state officials from foreign
(criminal) jurisdiction, on the one hand, and the connected regime of responsibility
of states under international law, on the other hand. Importantly, considering crimes
under international law and other “official crimes” as acts which are not attributable
to a state, in order to circumvent the immunity
ratione materiae
, would have the
illogical consequence that the state itself on whose behalf the act was committed would
not incur international responsibility for such crimes.
57
In addition, this principle
of symmetry between the rules on attribution for the purpose of state responsibility
56
Ibid
., pp. 50-52.
57
R. PEDRETTI,
op. cit
. sub 20, pp. 332-333.