Defining the Future of the Immunity Ratione Materiae of State Officials in International Criminal Law

Abstract

The issue of the immunity ratione materiae of state officials before international criminal courts has been settled by both the International Criminal Court (ICC) and the African Criminal Court (ACC). Accordingly, these criminal courts do not recognise the immunity ratione materiae of state officials despite the official nature of the acts committed. Nevertheless, the issue of the immunity ratione materiae of state officials from foreign criminal jurisdictions remains uncertain, despite the intervention of the International Law Commission (ILC). Consequently, the view that the immunity ratione materiae of state officials covers only official acts performed by state officials does not amount to international crimes is legally justifiable. However, it is inconsistent with the rule of customary international law on the immunity of state officials from foreign criminal jurisdictions, and this view is consistent with the decision of the International Court of Justice (ICJ) in the Arrest Warrant case. This article examines the position of the immunity ratione materiae of state officials from foreign criminal jurisdictions as well as the position before modern international criminal courts. The article maintains that official acts should not be determined by their legality or nature, but by the purpose for which such acts were committed, and the responsibility may be attributed to the state despite their criminal nature. Accordingly, the article argues that the issue of the immunity ratione materiae of state officials and the Draft Article 7 international crimes exceptions could be resolved by a treaty, as was done before the ICC and the ACC, given the fact that this immunity is supported by state practice and is consistent with the customary rules of international law.