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PAVEL CABAN
CYIL 7 ȍ2016Ȏ
and rules on immunity
ratione materiae
of state officials is fully compatible with the
application of suggested exceptions to immunity
ratione materiae
: first, the exception
for crimes under international law and other crimes subject to extraterritorial
(universal) jurisdiction, described above, would be fully applicable irrespective of
the attribution of the acts to the home state of the offender; second, the possible
“territorial exception” to immunity
ratione materiae
should be fully applicable as well,
whether on the basis of a direct application of the exception in case of the illegal
activities in the territory of another state, or on the basis of the indirect application
of this exception
via
the rules on responsibility of states for internationally wrongful
acts, as suggested above. Secondly, it seems that the application of some of the
criteria for attribution for purpose of the responsibility of states will be minimized
simply by the factual circumstances which are covered by these criteria
(for example,
attribution of state responsibility under articles 9, 10 and 11 seems to be a very rare
phenomenon in the context of possible application of immunity
ratione materiae
).
As regards the concern that states could abuse “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 (ratione materiae) of State officials
from foreign criminal jurisdiction”, it can be noted that states have a similar “right”
as regards the application of immunities
ratione personae
; in addition, as suggested
above, such a “right” of a state in case of the application of immunity
ratione materiae
would not in any way limit the application of suggested exceptions to immunity
ratione materiae
. Lastly, the application of some of the criteria for attribution of
responsibility of states might be limited or excluded by the narrow definition of
“state official”;
58
alternatively, if a broader definition of “state official”, which would
include also “
de facto
” state officials, would be eventually adopted (which – if the
unity of the system of the rules on resposibility of states and rules on immunity
is to be preserved – seems to be
prima facie
a well-founded approach),
59
the above
58
Draft article 2(e) 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): “‘State official’
means any individual who represents the State or who exercises State functions.”; draft article 5 (on
persons enjoying immunity
ratione materiae
): “State officials acting as such enjoy immunity
ratione
materiae
from the exercise of foreign criminal jurisdiction.” 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).
59
ILC, Report of its seventieth session, 2015, UN doc. A/70/10, p. 125 (“… several members wondered
about the basis on which the Special Rapporteur had made the assertion that the term ‘State official’
excluded for the purposes of immunity individuals who were usually regarded as
de facto
officials.
There was need, for some members, to take a broader approach to cover acts of a person acting under
governmental direction and control.”). Also other authors argue that immunity
ratione materiae
covers
official acts of any
de iure
or
de facto
state agent; A. CASSESE,
op. cit
. sub 4, p. 863; D. AKANDE, S.
SHAH,
op. cit.
sub 4, p. 825 (“Thus, this conduct-based immunity may be relied on by former officials
… It may also be relied on by persons or bodies that are not state officials or entities but have acted on
behalf of the State.”).