12. Immunity of state officials and international organizations, Wikremasinghe (349-382).pdf

# Diplomatic law and its framework Diplomatic law provides the legal framework for international relations, focusing on the privileges and immunities granted to missions and their members to ensure the efficient conduct of diplomacy. ## 1. Diplomatic law and its framework Diplomatic law governs the conduct of international relations and facilitates public international communication. It encompasses a broad body of law derived from various sources, including key treaties, customary international law, and judicial decisions. While not fully codified, it establishes a "self-contained regime" with its own remedies for abuses [5](#page=5) [6](#page=6). ### 1.1 Historical roots and foundational theories Diplomatic law has ancient origins. Historically, the concept of extraterritoriality for foreign missions was prevalent, but has since been discredited. The "representative theory," which identifies representatives with the State itself, has contributed to the rationale for jurisdictional immunities. However, the "functional necessity" theory is now considered the most convincing explanation for modern diplomatic law, emphasizing the need to protect and facilitate international communication for mutual benefit [5](#page=5). > **Tip:** Understanding the evolution of the underlying theories helps explain the rationale behind current diplomatic law principles. ### 1.2 Sources of diplomatic law Key sources of diplomatic law include: * The 1961 Vienna Convention on Diplomatic Relations (VCDR) [5](#page=5). * The 1963 Vienna Convention on Consular Relations (VCCR) [5](#page=5). * The 1969 Convention on Special Missions [5](#page=5). * Treaties concerning the privileges and immunities of representatives to and officials of international organizations, such as the 1946 Convention on the Privileges and Immunities of the UN and the 1947 Convention on the Privileges and Immunities of the Specialized Agencies [5](#page=5). * The 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents [5](#page=5). * Customary international law, which fills gaps where treaties are not fully codified [5](#page=5). * Judicial decisions of international and national courts and tribunals [5](#page=5). ### 1.3 Distinction between types of immunity International law recognizes two basic types of immunity from jurisdiction for State officials and international organizations [5](#page=5): #### 1.3.1 Immunity ratione personae * **Definition:** Immunity enjoyed by certain categories of State officials by virtue of their office, due to the importance of their functions to international relations [5](#page=5). * **Scope:** Covers both official and private acts, as interference with either can impact official functions [5](#page=5). * **Characteristics:** Includes complete personal inviolability (freedom from arrest/detention) and absolute immunity from criminal jurisdiction. Immunity from civil jurisdiction may also be recognized but can be limited for certain private actions [5](#page=5). * **Duration:** Attaches only to enable the proper functioning of the office and lapses when the office-holder leaves office [5](#page=5). #### 1.3.2 Immunity ratione materiae * **Definition:** Immunities that attach to the official acts of State officials, derived from the principle of State immunity [6](#page=6). * **Scope:** Determined by the nature of the acts rather than the office of the official. Covers a narrower range of acts than *ratione personae* but applies to a wider range of actors (potentially all State officials) [6](#page=6). * **Characteristics:** Protects official acts performed while in office, and this immunity subsists even after the individual has ceased official functions [6](#page=6). > **Tip:** Remember that both types of immunity operate as procedural bars to jurisdiction and can be waived by the sending State [6](#page=6). ### 1.4 Non-justiciability and act of State These are distinct from procedural immunities. Non-justiciability asserts that the subject matter of a claim is governed by international law or foreign public law, placing it outside national court competence. These objections to jurisdiction are not mutually exclusive and can coexist with procedural immunities, though procedural immunities are usually addressed first [6](#page=6). ### 1.5 Compliance and rationale for diplomatic law States generally observe diplomatic immunities scrupulously, partly due to the reciprocal nature of diplomatic exchange. Each State, being both a sending and receiving State, has an interest in maintaining the equilibrium between these roles. Despite some abuses, there is no substantial opinion advocating for their abolition or restriction [6](#page=6). ### 1.6 The Vienna Convention on Diplomatic Relations (VCDR) The VCDR, with over 190 parties, is a cornerstone of diplomatic law, codifying the rules for establishing and maintaining diplomatic relations. Its success is attributed to the long-established and stable nature of the law, the role of reciprocity, and careful drafting [6](#page=6) [7](#page=7). #### 1.6.1 Establishing diplomatic relations * **Mutual Consent:** Diplomatic relations are established by mutual consent, as per Article 2 of the VCDR [6](#page=6). * **Establishment of Missions:** This usually involves the exchange of permanent diplomatic missions [7](#page=7). #### 1.6.2 Functions of a diplomatic mission Article 3 of the VCDR outlines the primary functions: * Representing the sending State [6](#page=6). * Protecting the interests of the sending State and its nationals [6](#page=6). * Negotiating with the government of the receiving State [6](#page=6). * Ascertaining and reporting on conditions and developments in the receiving State [7](#page=7). * Promoting friendly relations and developing economic, cultural, and scientific ties [7](#page=7). #### 1.6.3 Appointment and accreditation of diplomatic agents * **Head of Mission:** The appointment of a head of mission requires prior *agrément* (consent) from the receiving State, due to the sensitivity and need for personal acceptability [7](#page=7). * **Other Diplomatic Agents:** Prior consent is not required for other diplomatic agents (except defense attachés), but notification of arrival and departure is necessary [7](#page=7). * **Persona Non Grata:** The receiving State can declare any member of a mission *persona non grata* (unacceptable) without giving reasons, requiring the sending State to recall them or terminate their functions [7](#page=7). #### 1.6.4 Privileges and facilities granted to the mission * **Premises:** Mission premises are inviolable; receiving State agents cannot enter without consent. Exceptions for extreme emergencies were rejected to prevent abuse. The receiving State has a special duty to protect mission premises from intrusion and prevent disturbances [7](#page=7). > **Example:** In the Tehran Hostages case, Iran was held responsible for failing to protect the US Embassy premises and its occupants [7](#page=7). * **Archives:** Mission archives are inviolable [7](#page=7). * **Communication:** Free communication is guaranteed, including inviolability of official correspondence, diplomatic bags, and protection of diplomatic couriers [7](#page=7). > **Note:** The inviolability of premises is generally understood to be conditioned by the lawfulness of their use, though forcible entry on grounds of self-defense has been a debated exception [7](#page=7). #### 1.6.5 Privileges and immunities of members of the mission Articles 29-39 cover privileges and immunities for mission members, including jurisdictional immunities, inviolability of private residences, and exemptions from taxes and national service. These are granted to ensure efficient mission performance, not for personal benefit [8](#page=8). > **Tip:** These rights and privileges must be given effect in national law, such as through the Diplomatic Privileges Act 1964 in the UK [8](#page=8). #### 1.6.6 Duties of diplomatic agents towards the receiving State In return for privileges and immunities, diplomatic agents owe certain duties: * Respect the laws and regulations of the receiving State [8](#page=8). * Do not interfere in the internal affairs of the receiving State [8](#page=8). * Conduct official business through the Ministry of Foreign Affairs or agreed ministries [8](#page=8). * Do not use mission premises in a manner incompatible with mission functions [8](#page=8). * Do not practise professional or commercial activity for personal profit in the receiving State [8](#page=8). #### 1.6.7 Termination of diplomatic functions Articles 43-46 address arrangements for the termination of diplomatic functions and severance of diplomatic relations [8](#page=8). ### 1.7 Jurisdictional immunities under the VCDR The VCDR categorizes staff members with varying degrees of immunity: * **Diplomatic Agents and their families:** * Enjoy *ratione personae* immunity [8](#page=8). * Grant personal inviolability (freedom from arrest/detention) [8](#page=8). * Absolute immunity from criminal jurisdiction [8](#page=8). * Immunity from civil and administrative jurisdiction, with three exceptions: * Real actions concerning immovable property in the receiving State (unless held for the mission) [8](#page=8). * Succession cases where the agent acts as a private person [8](#page=8). * Actions relating to professional or commercial activity exercised outside official functions [8](#page=8). > **Example:** Divorce and custody proceedings are generally subject to diplomatic immunity, though exceptions can apply [8](#page=8). * **Administrative and technical staff and their families (not nationals/permanent residents):** * Enjoy similar personal inviolability and immunity from criminal jurisdiction as diplomatic agents [8](#page=8). * Immunity from civil jurisdiction does not extend to acts performed outside their duties [8](#page=8). * **Service staff (not nationals/permanent residents):** * Enjoy *ratione materiae* immunity in respect of acts performed during their duties [8](#page=8). * **Diplomatic agents who are nationals or permanent residents of the receiving State:** * Enjoy *ratione materiae* immunity for official acts performed in the exercise of their functions [8](#page=8). * **All members enjoying immunity while in office:** * Retain immunity *ratione materiae* for acts performed in the exercise of their functions even after leaving office [8](#page=8). > **Note:** Immunities under the VCDR generally apply to the jurisdiction of the receiving State. However, Article 40 requires third States to accord inviolability and necessary immunities to diplomatic agents in transit [8](#page=8). ### 1.8 Remedies in cases of abuse The VCDR provides remedies to balance the derogation from receiving State jurisdiction: * **Waiver of Immunity:** Jurisdictional immunities are procedural bars and can be waived by the sending State. Waiver must be express and is a prerogative of the sending State, not the individual diplomat [8](#page=8). * **Duty to Respect Law:** Members of diplomatic missions are obligated to respect the laws of the receiving State. If immunity is waived, local courts may exercise jurisdiction [8](#page=8). --- # Jurisdictional immunities of state officials This topic examines the distinct immunities afforded to state officials under international law, distinguishing between personal immunities and those covering official acts, and their complex interplay with international criminal law. ### 2.1 Categories of state officials and their immunities International law recognizes varying levels of immunity for state officials, largely based on their rank and functions, with a distinction between immunity *ratione personae* (personal immunity) and *ratione materiae* (immunity for official acts). #### 2.1.1 Heads of State Heads of State enjoy comprehensive immunity from foreign criminal jurisdiction and inviolability, which protects them from any act of authority that would hinder their duties. This immunity is largely considered an extension of the diplomatic agent's inviolability as codified in Article 29 of the Vienna Convention on Diplomatic Relations (VCDR). In the UK, Section 20 of the State Immunity Act 1978 equates the position of a foreign Head of State with that of a head of a diplomatic mission. Immunity from civil jurisdiction is determined by whether the act was performed in an official or personal capacity [11](#page=11). * **Waiver:** The immunity of a Head of State can be waived by the Head of State themselves or by their State [11](#page=11). * **Post-office:** Upon leaving office, Heads of State retain immunity *ratione materiae* for their official acts, similar to former diplomats. The extent of this immunity was notably examined in the *Pinochet* case [12](#page=12) [17](#page=17). #### 2.1.2 Heads of Government and Ministers for Foreign Affairs Heads of Government and Ministers for Foreign Affairs generally enjoy immunity from jurisdiction *ratione personae* to the same extent as Heads of State, owing to their comparable roles in representing their States internationally [12](#page=12). * **Arrest Warrant Case:** The International Court of Justice (ICJ) in the *Arrest Warrant* case affirmed that an incumbent Foreign Minister enjoys complete personal inviolability and absolute immunity from criminal jurisdiction *ratione personae* throughout their tenure. This immunity applies regardless of whether the acts were private or official, performed before or after taking office, or whether the minister was on an official or private visit [12](#page=12). * **Scope:** This immunity can be invoked in any State, unlike diplomatic immunity which is primarily limited to the receiving State. Crucially, the ICJ found no exception to this immunity for international crimes such as war crimes or crimes against humanity [12](#page=12) [16](#page=16). * **Waiver:** The immunity of a Foreign Minister can be waived by their State [12](#page=12). * **Extension:** Similar immunities are presumed to apply to Heads of Government, and potentially to other ministers or senior officials, depending on their involvement in international relations [12](#page=12) [13](#page=13). #### 2.1.3 Other State Officials All state officials and former officials, in principle, enjoy immunity *ratione materiae* for their official acts under the doctrine of State immunity. This is because a State can only act through its individual agents, and their official acts can engage the State's international responsibility [13](#page=13). * **Rationale:** This immunity prevents individuals from circumventing State immunity by suing the official acting on behalf of the State [13](#page=13). * **UK Practice:** In the UK, the State Immunity Act 1978 provides protection to employees and officers of a foreign State under the same cloak as protects the State itself. This was upheld in cases like *Propend Finance v Sing* and *Jones v Ministry of the Interior of the Kingdom of Saudi Arabia* [13](#page=13). * **US Practice:** In contrast, the US Supreme Court in *Samantar v Yousuf* found that immunity *ratione materiae* for individuals is not governed by the Foreign Sovereign Immunities Act (FSIA) but by common law, with the possibility of a "suggestion of immunity" from the State Department [14](#page=14). * **Criminal Jurisdiction:** Regarding criminal jurisdiction, the International Law Commission's work highlights debates on exceptions to immunity *ratione materiae*, particularly for international crimes. The traditional view is that immunity for official acts is absolute, unless the crime occurs in the territory of the forum State without its consent to the official's presence or activities. However, proposals for broader exceptions to immunity have been made, though not yet universally adopted [14](#page=14). #### 2.1.4 Special Missions The UN Convention on Special Missions outlines privileges and immunities for members of special missions, broadly mirroring the VCDR. Representatives of the sending State in a special mission and its diplomatic staff enjoy personal inviolability and jurisdictional immunities equivalent to diplomatic agents. Immunity *ratione materiae* for official acts continues after the mission concludes [10](#page=10). * **Customary Law:** Given the limited participation in the Convention, customary international law, often reflected in domestic case law, plays a significant role. Key requirements for special mission immunity include the temporary nature of the mission, representation of the State, and the consent of the receiving State to the mission as such [10](#page=10). * **UK Practice:** The UK's practice, as seen in *Khurts Bat v Investigating Judge of the Federal Court of Germany*, emphasizes the vital need for prior consent from the receiving State to a special mission. The government's consent, often evidenced by a certificate, is a matter for executive decision [10](#page=10). ### 2.2 Types of Jurisdictional Immunities Immunities are broadly categorized based on their temporal and substantive scope. #### 2.2.1 Immunity *ratione personae* (personal immunity) This type of immunity attaches to an individual by virtue of their office or status and is generally enjoyed by high-ranking officials such as Heads of State, Heads of Government, Ministers for Foreign Affairs, diplomatic agents, and members of special missions. It typically grants absolute immunity from criminal jurisdiction and personal inviolability for the duration of their office or mission [10](#page=10) [11](#page=11) [12](#page=12) [16](#page=16). #### 2.2.2 Immunity *ratione materiae* (immunity for official acts) This immunity covers acts performed by state officials in their official capacity. It is distinct from personal immunity and subsists even after the official leaves office or the mission ends. The rationale is to protect the State's immunity from being undermined by proceedings against its officials for acts taken on behalf of the State [10](#page=10) [12](#page=12) [13](#page=13) [14](#page=14). > **Tip:** Immunity *ratione materiae* is fundamentally an immunity of the State, not the individual. Therefore, the State that the official serves must assert this immunity for it to be given effect [14](#page=14). ### 2.3 Limitations and Exceptions, particularly concerning serious international crimes The interplay between jurisdictional immunities and the prosecution of serious international crimes has been a significant area of legal development and debate. #### 2.3.1 Immunity and Impunity Distinguished It is crucial to distinguish between immunity and impunity. While immunities serve the functional needs of States and international organizations, they are not intended to shield individuals from accountability for serious international crimes. The sending State or employer international organization can waive immunities [16](#page=16). #### 2.3.2 Exceptions to *ratione personae* immunity While immunity *ratione personae* for serving high officials is generally considered an absolute bar to criminal jurisdiction for the duration of their office, even for serious international crimes, there are circumstances where prosecution can proceed: * **Prosecution by own State:** Office-holders can be prosecuted by the courts of their own State [16](#page=16). * **Waiver by State:** Immunity can be waived by the office-holder's State [16](#page=16). * **Post-office:** Upon leaving office, former office-holders may be prosecuted for acts committed prior to or subsequent to their period of office, or for private acts during their tenure [16](#page=16). * **International Criminal Courts:** Prosecution by certain international criminal courts with jurisdiction is possible [16](#page=16). #### 2.3.3 Immunity *ratione materiae* and serious crimes The application of immunity *ratione materiae* to serious international crimes has been particularly contentious. * **The Pinochet Case:** The arrest of General Pinochet, a former Head of State, in the UK on extradition charges for torture raised critical questions about immunity *ratione materiae* for official acts. The House of Lords, by a majority, rejected Pinochet's plea of immunity in respect of torture allegations [17](#page=17). * **Implied Waiver Argument:** Some judges based their decision on an implied waiver of immunity by States parties to the Torture Convention, arguing that otherwise, the Convention's aim would be undermined [17](#page=17). * **Broader Argument:** Other judges argued that individual responsibility for grave international crimes is distinct from State responsibility and cannot be opposed by immunity *ratione materiae*, as the purpose of this immunity is to protect the State's immunity, not an individual's culpability for crimes like torture [17](#page=17). * **Scope and Debate:** The extent to which the exception established in *Pinochet* can apply to other international crimes and other immunities *ratione materiae* remains debated, with no firm international consensus. While the ICJ in the *Arrest Warrant* case noted that a former Foreign Minister might be liable for private acts during their tenure, its comments on official acts for serious crimes have been subject to differing interpretations. Some scholars argue that immunity *ratione materiae* does not apply to international crimes as defined in the Statute of the International Criminal Court [17](#page=17). > **Example:** The *Pinochet* case demonstrated how international criminal law's evolution, particularly concerning crimes like torture, can challenge traditional notions of immunity *ratione materiae*, leading to exceptions based on implied waiver or the inherent gravity of the crimes themselves. #### 2.3.4 *Ratione personae* vs. *Ratione materiae* in relation to crimes * **Serving Officials:** *Ratione personae* immunity for serving Heads of State, Heads of Government, and Foreign Ministers generally acts as an absolute bar to foreign criminal jurisdiction, even for serious international crimes, unless waived [16](#page=16). * **Former Officials:** For former officials, immunity *ratione materiae* for official acts is more vulnerable to exceptions, particularly concerning crimes like torture, as established in the *Pinochet* case. However, the application to other international crimes is less settled [17](#page=17). ### 2.4 Immunities of Officials of International Organizations Officials of international organizations enjoy immunities that, while inspired by those granted to States and their officials, differ due to the unique nature of these organizations [15](#page=15). * **Functional Necessity:** Immunities for international organization officials, like diplomatic immunities, are based on functional necessity, ensuring the organization can operate independently [15](#page=15). * **Key Differences from Diplomatic Immunity:** * Officials of international organizations may need immunity against their own States of nationality, which is less common for diplomatic agents [15](#page=15). * There is no "sending State" for international organization officials, necessitating alternative procedures like international disciplinary measures or waiver of immunity [15](#page=15). * The principle of reciprocity does not operate in the same way [15](#page=15). * **UN Example:** Under the Convention on the Privileges and Immunities of the UN : * The Secretary-General and Assistant Secretaries-General have ambassadorial status and enjoy equivalent *ratione personae* immunities [15](#page=15). * Other officials enjoy immunity *ratione materiae* in respect of their official acts [15](#page=15). * Experts on mission have immunity *ratione materiae* and personal inviolability for travel [15](#page=15). * **Waiver:** The Secretary-General of the UN has the right and duty to waive immunity if it impedes justice without prejudicing the organization's interests [15](#page=15). * **Determination of "Official Act":** Determining what constitutes an "official act" can be crucial. The ICJ in the *Cumaraswamy* case suggested that a finding by the Secretary-General concerning immunity creates a presumption that national courts should only set aside for compelling reasons [15](#page=15). --- # Immunities of international organizations and their officials This section explores the distinct immunities granted to international organizations and their personnel, emphasizing their functional necessity and specific provisions for UN officials [15](#page=15). ### 3.1 Nature and basis of immunities International organizations, unlike states, do not typically possess their own territory or population and do not perform all governmental functions. Their immunities, while inspired by diplomatic immunities, differ in scope due to these distinctions. The primary basis for these immunities is functional necessity, ensuring the organization can operate independently [15](#page=15). ### 3.2 Differences from diplomatic immunities Several key differences distinguish the immunities of international officials from those of diplomatic agents [15](#page=15): * **Nationality:** Diplomatic agents from the receiving state may have restricted immunities, whereas officials of international organizations may require immunity against their own state of nationality. While not all states grant full immunities to their nationals employed by international organizations, limitations often pertain to fiscal matters or national service rather than immunity from legal process [15](#page=15). * **Sending State:** For diplomatic agents, the sending state remains a point of recourse, but international officials lack a "sending state" in the same sense, necessitating internal disciplinary procedures or waiver of immunity [15](#page=15). * **Reciprocity:** The principle of reciprocity, central to diplomatic law between states, does not operate identically for international organizations [15](#page=15). Therefore, the immunities of international organizations are assessed based on their specific functional needs, rather than a direct assimilation with diplomatic immunities [15](#page=15). ### 3.3 Immunities for UN personnel The Convention on the Privileges and Immunities of the UN 1946 categorizes UN staff members concerning their immunities [15](#page=15): * **Secretary-General and Assistant Secretaries-General:** Accorded ambassadorial status and enjoy equivalent immunities *ratione personae* (personal immunities) [15](#page=15). * **Other Officials:** Enjoy immunity from legal process in respect of their official acts, meaning immunity *ratione materiae* (material immunity) [15](#page=15). * **Experts on Mission:** Undertaking temporary missions for the UN are granted immunity from suit for their official acts (*ratione materiae*) and a specific grant of personal inviolability to facilitate free travel for their mission [15](#page=15). > **Tip:** *Ratione personae* immunity protects individuals due to their status or office, while *ratione materiae* immunity protects them in relation to their official actions. ### 3.4 Purpose and waiver of immunity Immunities for officials and experts are not for personal benefit but for the benefit of the organization itself. The Secretary-General holds the right and duty to waive the immunity of any official if it impedes justice and can be waived without prejudice to the organization's interests [15](#page=15). ### 3.5 Determination of official acts A critical question arises when officials have *ratione materiae* immunity: who determines if an act is "official"? In many instances, ordinary criminal jurisdiction may apply if the offense is clearly not an official act, as seen in espionage cases during the Cold War where such activities were not considered official [15](#page=15). However, when disputes arise regarding the nature of an act, the International Court of Justice (ICJ) in the *Cumaraswamy* case provided a nuanced approach [15](#page=15): * National courts should be immediately notified of any finding by the Secretary-General concerning immunity [15](#page=15). * Such a finding creates a presumption that national courts must give the greatest weight to and can only set aside for the most compelling reasons [15](#page=15). This approach aims to balance the interests of the organization and local jurisdiction, with the ultimate decision resting with the national court to determine if compelling reasons exist to rebut the presumption [16](#page=16). > **Example:** An international official accused of a crime might claim immunity if the alleged act was performed as part of their official duties. The UN Secretary-General's determination on whether the act was official would create a strong presumption for the national court to consider. ### 3.6 Immunities and serious crimes While immunities serve the organization, international law has evolved to impose obligations on individuals for serious international crimes. This raises questions about integrating these individual criminal responsibilities with the immunities of state officials [16](#page=16). #### 3.6.1 *Ratione personae* immunity for state officials The ICJ in the *Arrest Warrant* case held that under customary international law, no exception to *ratione personae* immunity exists for serving Heads of State, Heads of Government, Foreign Ministers, diplomatic agents, and members of special missions concerning war crimes or crimes against humanity, unless waived by the sending state. This absolute bar is due to the importance of their functions in maintaining international relations [16](#page=16). However, the Court stressed that immunity is distinct from impunity, and prosecution may still occur in several circumstances [16](#page=16): * Prosecution by the official's own state [16](#page=16). * Waiver of immunity by the official's state [16](#page=16). * Prosecution after the official leaves office for acts prior to, subsequent to, or private acts during their tenure [16](#page=16). * Prosecution by certain international criminal courts with jurisdiction [16](#page=16). > **Tip:** The *Arrest Warrant* case is a landmark decision clarifying the scope of immunity for high-ranking state officials concerning international crimes. --- # The interplay between immunities and serious international crimes The tension between functional immunities for state officials and individual criminal responsibility for grave international crimes is a complex and evolving area of international law, seeking to reconcile the need for effective international relations with the imperative to end impunity [4](#page=4). ### 4.1 Rationale and Evolution of Immunities Immunities enjoyed by state and international organization officials are not for personal benefit but serve to facilitate the processes of communication and cooperation essential for international relations. While historically international law focused on states, there has been a significant shift towards imposing obligations on individuals, particularly concerning serious international crimes that offend international public order. This has led to a determination to end impunity for such crimes through extraterritorial jurisdiction and the establishment of international criminal tribunals. Consequently, the immunities of state officials in relation to international crimes have faced increased scrutiny [16](#page=16) [4](#page=4). ### 4.2 Distinguishing Immunity from Impunity It is crucial to distinguish between immunity and impunity. Immunities can generally be waived by the sending state or employer international organization, as they are granted for the benefit of the entity represented, not the individual [16](#page=16). > **Tip:** The shift towards individual criminal responsibility for serious international crimes has created a fundamental tension with the traditional regime of functional immunities. ### 4.3 Immunities *ratione personae* Immunities *ratione personae* pertain to specific high-ranking officials, such as Heads of State, Heads of Government, Foreign Ministers, diplomatic agents, and members of special missions. In the absence of waiver by the sending state, these immunities generally present an absolute bar to the criminal jurisdiction of national courts during the official's tenure. This is to prevent their functions in maintaining international relations from being jeopardized [16](#page=16). However, the International Court of Justice (ICJ) in the *Arrest Warrant* case clarified that immunity is not impunity and outlined four circumstances where *ratione personae* immunity would not prevent prosecution [16](#page=16): 1. Prosecution by the courts of their own state [16](#page=16). 2. Waiver of immunity by their state [16](#page=16). 3. Prosecution after leaving office for acts prior to, subsequent to, or private acts during their period of office [16](#page=16). 4. Prosecution by certain international criminal courts with jurisdiction [16](#page=16). The ICJ's ruling in the *Arrest Warrant* case concluded that under customary international law, no exception to *ratione personae* immunity exists for war crimes or crimes against humanity for a serving Foreign Minister. National legislation, such as the former Belgian Act of 1999 which disallowed immunity for war crimes, crimes against humanity, and genocide, was considered exceptional and not indicative of an emerging rule of general international law, especially after its repeal and amendment [16](#page=16). ### 4.4 Immunities *ratione materiae* Immunities *ratione materiae* cover official acts performed by an official during their tenure. The arrest of former Chilean President General Pinochet in 1998 brought this issue to the forefront. The House of Lords in the *Pinochet* case considered whether a former Head of State could resist extradition based on immunity for official acts, despite no longer being in office [17](#page=17). By a majority of six to one, the House of Lords rejected the plea of immunity in respect of torture allegations. Three judges relied on an implied waiver of immunity, arguing that states parties to the Torture Convention must have intended such a waiver, otherwise, the international criminalization of torture would be undermined. The other three judges based their reasoning more broadly on the principle that individual responsibility for serious international crimes cannot be defeated by *ratione materiae* immunity. They argued that this immunity protects the state's own immunities by preventing national courts from adjudicating on the responsibility of another state without consent. However, as this immunity concerns state responsibility, it cannot be invoked for an individual's own criminal responsibility under international law [17](#page=17). > **Example:** The *Pinochet* case highlighted the conflict between *ratione materiae* immunity and the international community's commitment to prosecute egregious international crimes like torture. In English law, the *Pinochet* case is considered authority for the proposition that there is an exception to *ratione materiae* immunity for former Heads of State concerning official acts of torture, provided the relevant states are parties to the Torture Convention. The House of Lords also found that Pinochet's *ratione materiae* immunity from civil process remained unaffected, as individual criminal responsibility for torture under the Convention represented a distinct basis of responsibility to which official act immunity did not extend [17](#page=17). The extension of this exception to other international crimes and immunities *ratione materiae* for other officials remains debated. The ICJ in the *Arrest Warrant* case commented that a former Foreign Minister would be liable to prosecution for private acts during their tenure, and potentially for official acts if the court's jurisdiction was applicable. Some scholars have criticized this statement for its narrowness, suggesting it might imply that former Foreign Ministers retain *ratione materiae* immunity for serious international crimes. Conversely, some judges in their separate opinion suggested a trend where serious international crimes are not covered by *ratione materiae* immunity for former officials [17](#page=17). The Swiss case of *Nezzar* involved an Algerian accused of crimes against humanity and war crimes, where the Swiss Federal Criminal Court rejected a claim to *ratione materiae* immunity, deeming it inconsistent with the international criminalization of such serious crimes. However, this case might be distinguishable as the state did not assert immunity on behalf of Nezzar [18](#page=18). The International Law Commission (ILC) proposed Draft Article 7, suggesting that *ratione materiae* immunity should not apply to genocide, crimes against humanity, war crimes, apartheid, torture, and enforced disappearance. This proposal faced significant opposition and was only provisionally adopted, with many states criticizing it as arbitrary and unsupported by state practice [18](#page=18). ### 4.5 Immunities before International Criminal Courts The development of international criminal courts is a crucial step in combating impunity. While immunities are generally not available before these courts, with exceptions outlined in Article 98 of the Rome Statute the precise application depends on the court's establishment and statute [18](#page=18) [19](#page=19). The Statutes of the Nuremberg and Tokyo Tribunals, ICTY, ICTR, Rome Statute (ICC), and SCSL all contain provisions stating that official capacity shall not exempt individuals from criminal responsibility. These provisions are generally aimed at negating substantive defenses based on official position rather than procedural immunities. Article 27 of the Rome Statute explicitly states that immunities under international law shall not bar the jurisdiction of the ICC [18](#page=18) [2](#page=2). However, for tribunals established by treaty, such as the ICC, states must consent to be bound. Article 98 of the Rome Statute preserves the state and diplomatic immunities of officials and property of third states, meaning officials of non-party states might claim immunity unless waived or unless a Security Council resolution mandates otherwise [18](#page=18) [1](#page=1). Tribunals established by the UN Security Council under Chapter VII of the UN Charter, like the ICTY and ICTR, have a different legal basis. Their statutes not only allow these tribunals to adjudicate but also provide a legal basis for UN member states to deny immunity to individuals when arresting or transferring them pursuant to tribunal orders [18](#page=18). The ICC's Pre-Trial Chamber in *The Prosecutor v Omar Hassan Ahmad Al Bashir* held that Al Bashir's position as Head of State of Sudan, a non-party to the Rome Statute, did not bar the Court's jurisdiction. The Chamber emphasized that ending impunity was a core goal of the Rome Statute and that Article 27 effectively limited exemptions and immunities. Security Council Resolution 1593 a binding resolution under Chapter VII, obliged Sudan to cooperate fully, overriding other obligations under Article 103 of the UN Charter. This resolution was interpreted as assimilating Sudan's position with that of a state party, obligating cooperation with arrest and surrender requests [19](#page=19) . > **Tip:** The interplay between Security Council referrals and Article 98 of the Rome Statute is crucial for understanding how immunities are treated in cases involving non-party states. The resolution of these conflicting priorities at the national level is still evolving. While *ratione personae* immunities for certain high office-holders generally exempt them from national proceedings, this may not apply to international proceedings, especially when states have accepted an international court's jurisdiction or the Security Council has removed immunity. For former office-holders, *ratione materiae* immunity for official acts may exceptionally not apply in cases of certain international crimes, most notably torture [19](#page=19). --- ## Common mistakes to avoid - Review all topics thoroughly before exams - Pay attention to formulas and key definitions - Practice with examples provided in each section - Don't memorize without understanding the underlying concepts

| Term | Definition | |------|------------| | Diplomatic Law | The body of law governing the conduct of international relations and the facilitation of communication processes at the public international level, including the privileges and immunities of diplomatic missions and their staff. | | Vienna Convention on Diplomatic Relations (VCDR) | A multilateral treaty that codifies the rules of diplomatic law, establishing a legal framework for the conduct of diplomatic relations between states, including the establishment and functions of diplomatic missions and the privileges and immunities of their members. | | Consular Law | The branch of international law that governs the functions, privileges, and immunities of consular officers and posts, which primarily focus on administrative and technical matters, as well as representing state interests and assisting nationals abroad. | | Vienna Convention on Consular Relations (VCCR) | A multilateral treaty that consolidates and codifies the basic rules governing consular relations between states, outlining the functions and immunities of consular officers. | | Special Missions | Temporary missions, representing a state, sent to another state for the purpose of dealing with specific questions or performing a specific task, often involving direct contact between senior officials or experts. The 1969 UN Convention on Special Missions codifies norms for their conduct. | | Immunity Ratione Personae | Immunity enjoyed by certain categories of state officials by virtue of their office, typically providing personal inviolability and absolute immunity from criminal jurisdiction, covering both official and private acts, and lapsing when the office-holder leaves office. | | Immunity Ratione Materiae | Immunity that attaches to the official acts of state officials, derived from the principle of state immunity. This immunity is determined by the nature of the acts rather than the office of the official, covers a narrower range of acts than immunity ratione personae but subsists even after the individual has ceased to hold office. | | Persona Non Grata | A status declared by a receiving state indicating that a diplomatic agent or member of a mission is unacceptable, without requiring the giving of reasons. The sending state is then obligated to recall the person or terminate their functions. | | Act of State Doctrine | A legal principle that the courts of a country will not sit in judgment on the validity of the acts of a foreign sovereign government committed within its own territory. | | Functional Necessity Theory | A rationale for diplomatic immunities suggesting that international cooperation between states depends on effective communication processes, and thus international law must protect and facilitate these processes to ensure benefits flow from cooperation. | | Sovereign Immunity | The principle that a sovereign state is immune from the jurisdiction of foreign courts. This doctrine has evolved, with a trend towards restrictive immunity, distinguishing between acts jure imperii (sovereign acts) and jure gestionis (commercial acts). | | International Criminal Law | The body of law that addresses international crimes such as genocide, crimes against humanity, war crimes, and torture. It focuses on individual criminal responsibility for acts that offend international public order. | | Impunity | Exemption from punishment or freedom from the injurious consequences of an action. In the context of international law, it refers to perpetrators of serious international crimes escaping justice. | | Jus Cogens | Peremptory norms of general international law from which no derogation is permitted. These are fundamental principles of international law, such as the prohibition of torture and genocide. | | Erga Omnes | Obligations owed by states to the international community as a whole. These are obligations of concern to all states, such as the prohibition of aggression and genocide. | | International Court of Justice (ICJ) | The principal judicial organ of the United Nations, responsible for settling legal disputes submitted to it by states and giving advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies. | | International Criminal Court (ICC) | An intergovernmental organization and international tribunal founded in 2002 by the Rome Statute of the International Criminal Court. It prosecutes individuals for the gravest international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. | | Waiver of Immunity | The voluntary relinquishment of a right or privilege, such as immunity from jurisdiction, by the state or individual entitled to it. Waiver must be express and is typically a prerogative of the sending state or the organization. | | Official Acts | Actions performed by a state official or agent in the course of carrying out their governmental duties and responsibilities. Immunity ratione materiae typically applies to these acts. | | Personal Inviolability | The principle that the person of a diplomatic agent or certain other high officials shall be inviolable, meaning they cannot be subjected to arrest or detention and must be treated with due respect. | | Head of State | The chief public representative of a sovereign state. International law recognizes that Heads of State exercise important powers in international relations ex officio. | | Head of Government | The head of the executive branch of government in a state, often a prime minister or president. | | Minister for Foreign Affairs | The minister responsible for a state's foreign policy and international relations. | | State Immunity Act 1978 | UK legislation that provides for the immunity of foreign states from the jurisdiction of UK courts, including provisions for the immunity of state officials acting in their official capacity. | | Foreign Sovereign Immunities Act (FSIA) | US federal law that provides the sole basis for acquiring jurisdiction over a foreign state in the US courts. It also governs the immunity of foreign officials from US jurisdiction. | | Torture Convention | The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It defines torture and obligates states parties to prevent and punish acts of torture. | | Arrest Warrant Case (DRC v Belgium) | A landmark International Court of Justice case concerning the arrest warrant issued by Belgium against the incumbent Foreign Minister of the Democratic Republic of Congo, clarifying the scope of immunity ratione personae for serving high officials. | | Jurisdictional Immunities of the State | A case before the ICJ concerning whether Italy could exercise jurisdiction over Germany in relation to acts committed by the German military during WWII, examining the relationship between state immunity and jus cogens norms. | | Pinochet Case | A series of legal cases involving former Chilean dictator Augusto Pinochet, famously concerning whether he could claim immunity ratione materiae for acts of torture committed during his presidency, and the implications for international criminal justice. | | Universal Jurisdiction | The principle that certain international crimes are so heinous that any state has the right and duty to prosecute perpetrators, regardless of where the crime was committed or the nationality of the perpetrator or victim. |