To decide if functional immunity exists, it is important to distinguish official from private acts. The commentary to Article 4 of the Draft Articles on State Responsibility 41 makes clear that it does not matter whether an act is committed out of ulterior or improper motives or whether the official abused his powers. In both cases the acts are attributable to the State if the official has acted “in an apparently official capacity, or under a colour of authority”.42
During their term of office some high-ranking officials also enjoy immunity for other than official acts. Immunity then depends on the position of the official and is therefore referred to as personal immunity or immunity ratione personae (see Fig. 7.2). The nature of the act is no longer important and immunity extends to private acts as well. This type of immunity completely shields the officials from another State’s exercise of jurisdiction while serving in office. It expires the moment the official vacates his post43; however, he continues to enjoy functional immunity (again, see Fig. 7.1).44
The rationale of affording personal immunity is at present based on ideas of functional necessity.45 Stability and predictability are important elements to maintain international relations. Politically motivated foreign legal procedures can impede the activities of officials who act on behalf of a State.46 For this reason the officials’ immunity is in the interest of the orderly conduct of international relations47 and to permit the effective performance of the functions of State officials.48
Immunity is a bar to a State’s jurisdiction and can only be invoked if this jurisdiction actually exists.49 This means that immunity and jurisdiction are closely related, as has been discussed in Sect. 1.4.4. The fact that officials enjoy immunity does not create jurisdiction for another State, nor does it trigger the obligation for the State already having jurisdiction to exercise it. Immunity simply exempts an official from the adjudicative and enforcement jurisdiction of the host State. The fact that the State sending the official possibly has jurisdiction over its official and may exercise that power on his return can be the consequence of immunity, but is in principle independent thereof.
For some acts that breach the sovereign position of the State,50 immunity cannot be invoked with respect to officials who do not operate with the consent of that State51; for instance, in case of espionage52 and sabotage.53
7.3.2 State Officials
The following sections discuss some specific categories of State officials, starting with high-ranking officials, such as the Head of State, the Head of Government and Ministers. This subsection will be followed by a discussion on officials that represent the State in their capacity as diplomatic or consular agents. As any government official they all enjoy criminal immunity for acts performed abroad in their official capacity, although not all officials are entitled to personal immunity. The status of military personnel is discussed in the next chapter.
18.104.22.168 Heads of State
Heads of State are the highest-ranking officials of a State. Historically they personify the State they represent.54 This approach is still reflected in the relations with other States, as the Head of State can represent his State in all fields.55 The legal position of Heads of State is above all a customary matter. Criminal immunity ratione personae of Heads of State has been widely accepted both in theory and in practice (also, see Sect. 7.3.3 on human rights and immunity).56
Personal immunity of the Heads of State ceases when their term of office has come to an end, although functional immunity continues to apply.57 Therefore, former Heads of State can still be prosecuted by a foreign judge for acts committed prior to or after their term of office and for private acts committed during their term of office (see Sect. 7.3.3). Personal immunity of a Head of State is without prejudice to the competence of an international criminal court.58 Such international proceedings do not subject a Head of State to the jurisdiction of another State, but to the jurisdiction of a body that has jurisdiction based on an international mandate.59 Its jurisdiction obviously does not concern any offence, but covers serious crimes under international law.
Furthermore, immunity can also be restricted in the area of civil law.60 A Head of State enjoys full immunity in civil proceedings related to acts performed in the exercise of his public functions.61 When it comes to private acts, international practice varies.62 For instance, the US grant foreign Heads of State absolute immunity, while other States tend to restrict immunity to enforcement measures during State visits.63 In the view of the ‘Institut de Droit International’ immunity of Heads of State in civil and administrative law is restricted to acts performed in the exercise of official functions.64
22.214.171.124 Heads of Government and Ministers
Today, not just Heads of State represent the interests of their States at the highest international level, but so do Heads of Government and Ministers for Foreign Affairs. For this reason international law provides these officials with immunity from jurisdiction in the area of civil and criminal law.65 Generally speaking, similar to the Heads of State they enjoy criminal immunity ratione personae.
In the Arrest Warrant case the ICJ focussed particularly on the position of the Ministers for Foreign Affairs.66 In this particular case, concerning a Belgian arrest warrant issued to the Minister for Foreign Affairs of the Democratic Republic of the Congo, the Court stated that no distinction could be made between acts performed in a private capacity and acts performed in an official capacity. If an incumbent Minister for Foreign Affairs would be arrested in a foreign State, he would no longer be able to exercise his functions. Consequently, Ministers for Foreign Affairs enjoy immunity ratione personae.67 Their personal immunity ends when they have left their office, but they continue to enjoy functional immunity.68
Other high officials, such as Ministers of other departments, may also enjoy immunity.69 In 2004, for instance, the British court considered that the roles of foreign affairs and defence are very much intertwined, as:
…many States maintain troops overseas and there are many United Nations missions to visit in which military issues do play a prominent role between certain States.70
The court concluded that a Minister of Defence automatically acquires immunity in the same way as that pertaining to a Minister for Foreign Affairs. On this basis the judge declined issuing an arrest warrant to the Israeli Minister of Defence.71 The same judge refused to issue an arrest warrant to a Chinese Minister of Commerce. He concluded that as the latter’s functions were equivalent to those exercised by a Minister for Foreign Affairs, he enjoyed immunity ‘ratione personae’ to enable him to exercise his official functions effectively.72
Even though these high-ranking officials do not have the ultimate responsibility for the international relations of their State, today they have an important function to fulfil. The exercise of jurisdiction by a foreign State could impede the independent exercise of their official functions.
In addition to Heads of State, Heads of Government and Ministers, diplomatic and consular agents and members of special missions also enjoy immunity in the host State. Diplomacy is essential in the official relations between the governments of sovereign States. Therefore, at an early stage rules concerning diplomatic relations have developed into the law as we know it today.73
The status of diplomatic and consular agents is first and foremost based on international customary law.74 Other important sources are the Vienna Convention on Diplomatic relations 75 of 1961 and the Vienna Convention on Consular Relations. 76 The position of members of special missions does not have a customary basis, but is regulated in the Convention on special missions of 1969.77 The status of the representatives to international organisations is set out in treaties between their member States and in the headquarters agreements (see Sect. 9.5).
Well before ideas on State immunity developed, immunity of envoys was part of international law.78 Originally the ruling opinion was that envoys were to be considered as representatives of the King and that the immunity of the King would extend to his envoys. Today, fundamental for diplomatic immunity is the concept that diplomatic agents must be able to represent their State without impediments (the principle ne impediatur legatio)79 “… to ensure the efficient performance of the functions of diplomatic missions as representing states”.80
Thus, diplomatic immunity and State immunity have a different origin. State immunity is based on the principle of equality of sovereign States, whereas diplomatic immunity is derived from the role of envoys as representatives of a foreign State and is based on the necessity to safeguard the liberty in the exercise of their functions.81
Article 1 of the Vienna Convention on Diplomatic Relations distinguishes three categories of agents. The most important category consists of diplomatic agents: the head of the diplomatic mission and the members of the diplomatic staff. They hold a diplomatic rank and pursuant to Article 31 they enjoy far-reaching immunities from local jurisdiction. The only exception to these immunities can be found in the area of civil jurisdiction with respect to actions related to private immovable property and commercial transactions.
The second category consists of administrative and technical staff, such as members of the secretariat, cypher clerks and communications experts. As their duties may involve the handling of diplomatic secrets, immunity is needed to guarantee a proper exercise of their functions.82 The immunities laid down in Article 37(2) are not customary in nature, but are the consequence of ongoing developments in the area of immunity.83 These immunities largely draw on immunities of diplomatic agents. Exceptions can be found in the area of civil and administrative law, in which immunity is limited to acts performed in the course of their duties.
The last category consists of members of the service staff84: persons who are in domestic service of the mission, such as drivers, kitchen and cleaning personnel. They are not directly involved in the official activities of the diplomatic mission and for that reason do not enjoy personal immunity. Instead, pursuant to Article 37 they are entitled to immunity for all acts performed in the course of duty.85
Diplomacy means conducting foreign policy of a State.86 The deployment of military personnel abroad may serve the same purpose and may be supportive of that policy. A case in point is a commissioned officer attached to a diplomatic mission as military attaché whose status is based on the Vienna Convention on Diplomatic Relations. Other military officials may be entitled to diplomatic status as well. Personnel involved in small-scale military missions supporting foreign policy need sufficient freedom to perform their duties abroad and will therefore need immunity.87 In general, SOFAs covering these missions will not grant members of the mission diplomatic status, but will offer similar immunities as the technical and administrative staff of a diplomatic mission are entitled to.
On occasion SOFAs also refer to the immunity of diplomatic agents when regulating the status of specific military officials responsible for the conduct of crisis management operations. For example, in accordance with section 19 of the Convention on Privileges and Immunities of the United, section 24 of the UN Model–SOFA grants the Force Commander and the members of his staff the immunities “…accorded to diplomatic envoys in accordance with international law.” The same applies to the Chief Military Observer in charge of an observation mission. Sometimes SOFAs accord a similar status to military observers (see Chap. 4).
In addition to diplomatic missions, States may have consular missions abroad. The most important difference between diplomatic and consular agents is that the former carry out their duties interacting directly with officials of the central government of the host State. The consular officers’ activities are aimed at the lower administrative levels of government,88 as they are mostly of an administrative and legal nature helping and assisting their nationals (see Article 5 of the Vienna Convention on Consular Relations). The different degree of representation is reflected in the immunities that are needed for the performance of the consular functions. On the basis of Article 43(1) of the Vienna Convention on Consular Relations, career consular officers enjoy functional immunity, except for several civil actions enumerated under para 2 of the same article.
A diplomatic mission is a State’s permanent representation in the receiving State. Sometimes States send a temporary mission for particular purposes.89 To regulate those situations the 1969 Convention on special missions was adopted. In summary, the Convention grants members of a special mission similar immunity as is granted to permanent missions under the Vienna Convention on Diplomatic Relations. Although the importance of the Convention may be somewhat limited,90 some of its rules are customary by nature.
7.3.3 International Crimes and Immunity
At the end of the nineteenth century, when State participation in commercial transactions abroad had steadily increased, the disadvantageous position of their civil counterparties had led to exceptions to State immunity. In the course of time the position of individuals has been strengthened further and the question has arisen to what extent States and their officials should continue to enjoy immunity in case of alleged violations of the individuals’ fundamental rights.91
In the field of civil law State immunity barred victims of human rights violations from bringing civil actions before their national courts against a foreign State involved in the human rights violation.92 Under these circumstances, however, State immunity has been criticised from a jus cogens perspective. When a State violates the peremptory norms under international law, this State should not be entitled to immunity.93 However, in the Al–Adsani case the European Court of Human Rights (ECtHR) rejected this position with respect to Al-Adsani’s claim of alleged torture94:
… the Court is unable to discern in the international instruments, judicial authorities or other materials before it any firm basis for concluding that, as a matter of international law, a State no longer enjoys immunity from civil suit in the courts of another State where acts of torture are alleged.95
So far States96 or national courts have only in exceptional cases rejected State immunity with regard to human rights violations.
Over the past few years, the Greek and Italian courts have denied Germany immunity with respect to claims based on the violation of international law in World War II. In the Voiotia case a Greek court ordered Germany to pay damages for the burning of the village of Distomo and for summary executions of a number of inhabitants in 1944.97 However, the Greek Minister of Justice refused execution of the sentence. In the following procedure before the ECtHR the Court referred to the Al–Adsani case and stated:
The Court does not find it established, however, that there is yet acceptance in international law of the proposition that States are not entitled to immunity in respect of civil claims for damages brought against them in another State for crimes against humanity.98
In subsequent decisions the Greek courts followed this reasoning of the ECtHR.99
In the Ferrini case the Italian court allowed a civil claim brought against Germany with respect to the deportation and forced labour of an Italian citizen in 1944, because it found that immunity could not bar a claim in the case of an international crime.100 In Mantelli, a similar case, the court confirmed this ruling.101
These decisions caused Germany to start a procedure before the ICJ.102 The Court had to answer the question “whether customary international law had developed to the point where a State is not entitled to immunity in the case of serious violations of human rights law or the law of armed conflict” (para 83 of the judgment). After thorough analysis the Court concluded that a State is still entitled to immunity under current international customary law (para 91). In its opinion the fact that the case concerned violations of jus cogens did not affect the applicability of the customary international law on State immunity (para 97).
In the field of criminal law the discussion focuses on the question whether immunity of Heads of State, Heads of Government and Ministers for Foreign Affairs can be upheld in cases of crimes, such as genocide, war crimes, crimes against humanity, or other crimes under international law. The growing attention of the international community for compliance with fundamental human rights puts pressure on criminal immunity of these State officials. As a result, there is a tendency in international law to penalise international crimes,103 as the jurisdiction of the International Criminal Court over incumbent Heads of State and other high-ranking officials demonstrates.104
However, as can be concluded from the Arrest Warrant case, international law does not provide national courts with a clear legal basis for prosecuting these officials. In general this approach is reflected in national legislation, case law and, partly, the literature.105 Nevertheless, at national level there is a search for openings and possibilities to make national prosecution of international crimes possible. One of the main arguments to restrict immunity is that the principle of jus cogens is considered to be hierarchically of a higher ranking than rules on immunity. Following this thought means that the violation of higher rules has primacy over the applicability of immunity.106 Another argument is based on the idea that an international crime cannot constitute an official activity of the State.107
These arguments have occasionally led courts to deny former Heads of State immunity, when they were accused of having committed international crimes.108 Likewise, some States have adopted rules stating that foreign officials cannot be entitled to immunity in case of genocide, crimes against humanity and war crimes.109 In its resolution Immunities from Jurisdiction and Execution of Heads of State and of Government in International Law of 2001, the ‘Institut de Droit International’ indicated that a former Head of State can be prosecuted for an international crime when it has been committed:
…exclusively to satisfy a personal interest, or when they constitute a misappropriation of the State’s assets and resources.110
With regard to international crimes committed by government officials the ‘Institut’ stated in 2009 that:
No immunity from jurisdiction other than personal immunity in accordance with international law applies with regard to international crimes.111
This means that in case of international crimes there is no immunity ratione materiae. Consequently, national courts can prosecute former Heads of State and other State officials for international crimes committed during their term of office (see Fig. 7.3).112
Functional immunity and international crimes
In practice, there is still uncertainty about the topic of immunity relating to international crimes. As the emphasis on the position of the individual under international law is of growing importance, this topic will most likely receive more attention in the future113 and functional immunity might have to make way for criminal responsibility for international crimes.
This chapter has discussed the immunity of State officials under international law. In the last decades the doctrine of relative State immunity in the field of civil law has been widely accepted and has been integrated in the UN Convention on State Immunity.