Immunity Of State Officials From Foreign Criminal Jurisdiction

This concept can be defined in two ways: First, the immunity of officials in the court of the state in which crime was committed and the second, the immunity of officials in International courts e.g. International Court of Justice, International Tribunals. For example, an officer from India, goes to the U.S.A. on any international mission, in the course of which he ends up committing an act which is illegal in America. Here two questions can be raised: First, whether the officer from India will have immunity in the American Court, and Second, whether the Indian officer will have immunity in ICJ. In this article, the first aspect i.e. immunity from the court of the state in which any crime was committed has been discussed in detail.

The issue of "Immunity of State officials from foreign criminal jurisdiction" became highly relevant during late 20^th Century. This issue was earlier accessed by the Institute of International Law, in which it adopted 16 Articles, which played a vital role in bringing attention of the International organisations to this topic.^[1] At its fifty-eighth session, in 2006, the International Law Commission, recognized the issue for its inclusion in long term program. While addressing the topic of Immunity of state officials from foreign criminal jurisdiction, the provisions of Vienna Convention on Diplomatic Relations 1961, the Vienna Convention on Consular Relations 1963, the Convention on special missions 1969 can be referred but these provisions do not cover the issue completely. The practice relating to Immunity of State officials from foreign criminal jurisdiction is purely based on international customs. It was discussed that the issue has many times been addressed by international organisations in some way or the other, but it was nevertpe sole focus. There remained a huge inconsistency. ^[2]

In 2008, The International Law Commission took the issue further and a report was examined at its 60^th session, which outlined the scope of this field, and the past initiatives taken to focus.^[3] From time to time, many discussions on this issue happened in various sessions of International Law Commission. At its sixty-ninth session, in 2017, the commission voted to adopt Article 7 of its Draft Articles on Immunity of State Officials from Foreign Criminal Jurisdiction.^[4] Since then, there have been many developments which substantiate the issue of Immunity of State officials from foreign criminal jurisdiction.

There is a mixed opinion regarding the immunization of state officials from foreign criminal jurisdiction. The topic revolves around two aspects of law, first in which law has provided immunity to officials in such cases, where the state is not allowed to interfere with the operation of other state, the second aspect is a new entry, which is seen through the angle of humanitarian rights, defining some obligations of state regarding crime in other state.^[5] Many attempts have already been made to prosecute those who allegedly have committed international crime.^[6] The general principle is that, state officials are immunized to the criminal jurisdiction of foreign state.^[7] The sources of this general principle are general international customary laws and treaties.^[8] The immunity provided can be categorised into 2 types: immunity ratione personae, immunity ratione materiae. Ratione personae can be referred as immunity which is enjoyed by the state officials just because of their status, whereas ratio personae is the immunity which is enjoyed because of the commission of alleged crime in the official capacity. The latter is limited to only official acts where the former extends to private act of the state officials (only few officials enjoy this type of immunity). The same can be witnessed in several judgements passes by the foreign courts:

In Attorney General of Israel v. Eichmann, the Israeli Supreme Court stated:

"Theory of "Act of State" means that the act performed by a person as an organ of the State-whether he was Head of the State or a responsible official acting on the Government's orders-must be regarded as an act of the State alone. It follows that only the latter bears responsibility therefor, and it also follows that another State has no right to punish the person who committed the act, save with the consent of the State whose mission he performed. Were it not so, the first State would be interfering in the internal affairs of the second, which is contrary to the conception of the equality of States based on their sovereignty?"

Similar observations have been made in several cases such as The Prosecutor v. Tihomir Blaškić and Ziada v. The State of The Netherlands. However, such immunity is removed when concerned with international crimes. There are two basic reasons behind the principle. Firstly, the act concerning international crimes cannot be overlooked as an official act, hence immunity should not be provided. Secondly, the acts giving effect to international crimes, violate the general principle of jus cogens.^[9] Hence, state officials cannot avail immunity from prosecution in domestic courts of another state in case of international crimes.

Concluding here, the basic intention of the state denying immunity to foreign state officials is to make sure that no offender goes unpunished. But while carrying out such goals, a balance should be maintained in order to protect those who merely carried out a plan on the behalf of the state. The rights of those officials also ought to be protected. The law should strive towards providing justice while protecting human rights.

Views are personal.