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CYIL 7 ȍ2016Ȏ
IMMUNITY OF STATE OFFICIALS FROM FOREIGN CRIMINAL JURISDICTION
principles and criteria should ensure that there will not appear any gaps as regards
the proper and full application of suggested exceptions to immunity
ratione materiae
.
Any differentiation between the concept of “official capacity” for the purpose of state
responsibility, on the one hand, and for the purpose of immunity
ratione materiae,
on
the other hand, could “give rise to an understanding of international crimes as acts
that are not attributable to the State and can only be attributed to the perpetrator”,
60
thus eliminating the model of “single act, dual responsibility”.
61
At the same time, it
is clear that, if impunity is to be restricted, this approach requires proper application
of exceptions to immunity
ratione materiae
, as suggested above.
62
8. Conclusion
In this article, I attempted to describe (not systematically) the basic arguments
in favour and against the existence of exceptions to immunity
ratione materiae
of state
officials from foreign criminal jurisdcition and to briefly summarize and present legal
concepts which could justify the existence of these exceptions. Several of the issues
touched upon above are by no means settled; it is hoped that they will be properly
“dissected” by the International Law Commission as part of its consideration of topic
“Immunities of State officials from foreign criminal jurisdiction”, and, afterwards,
refined in doctrine and applied in practice. On the other hand, it is sugested that the
widespread acceptance of the very existence of two types of exceptions to immunity
ratione materiae
described above is only a matter of time (and/or progressive development
of international law) and that their basic contours can be already identified. It seems
that the existence of these exceptions is inevitable, if international community takes
seriously its efforts to limit the impunity for crimes under international law and
other serious “official crimes”; it also seems that the legal rationale underpinning
these exceptions could fit in logically and neatly into the system of relevant norms
of international law. There is no denying that the theoretical formulation of these
exceptions is one thing, and their application in practice, influenced by political
considerations and other non-legal issues, another thing. Nevertheless, even if practical
application of these exceptions is very sporadic, the very existence of these exceptions
would have its merits, since “the knowledge that the cloak of immunity will be
unveiled upon completion of office” should serve as a deterrence to prevent the
commission of serious “official crimes” by state officials of all ranks.
60
Fourth Report of the Special Rapporteur,
op. cit
. sub 53, p. 54.
61
I.e.
the possibility that the same act may give rise to two different types of responsibility (liability):
responsibility of a state under international law (and, as the case may be, civil liability of a state under
foreign domestic law), and criminal liability of the individual perpetrator – state official. See Fourth
Report of the Special Rapporteur,
op. cit.
sub 53, pp. 43 and 54.
62
See also Fourth Report of the Special Rapporteur,
op. cit.
sub 53, p. 55. The exceptions to immunity
ratione materiae
will be the subject of the fifth report by the Special Rapporteur (as of 30 May 2016,
the fifth report has not yet been available).