Immunity of State Officials

Question 1

What are the two types of immunity of state officials?

Answer 1

(1) Immunity ratione materiae (Functional Immunity)

2) Immunity ratione personae (Personal immunity/diplomatic immunity

Question 2

What is immunity ratione materiae?

Answer 2

Immunity ratione materiae (functional immunity) protects conduct carried out by the State.

Question 3

Does immunity ratione materiae apply to international crimes?

Answer 3

Immunity ratione materiae does not apply to international crimes.

Confirmed by case law:

• Eichmann (National)
• Akayesu (ECTR)
• Krstic (ICTY)

and Statutes

• Article 7(2) ICTY
• Article 6(2) ICTR

Question 4

What is immunity ratione personae?

Answer 4

Immunity ratione personae (personal immunity/diplomatic immunity) covers official and private acts carried out whilst in office.

Question 5

Do immunities ratione personae apply to State Parties to the ICC?

Answer 5

Immunity ratione personae does not apply to State Parties to the ICC (Article 27(2))

Question 6

Pinochet (1999)

Answer 6

House of Lords case.
Immunity of a former head of state did not prevent his extradition for torture.

(Ratione materiae)

Implied waiver when signing up to the convention against torture else it would be ineffective.

Question 7

Arrest Warrant (2002)

Answer 7

ICJ case

Belgium breached its international obligations by initiating an international arrest warrant because they failed to respect the immunity of the incumbent Minister of Foreign affairs of the DRC.

“an incumbent…Minister of Foreign Affairs may be subject to criminal proceedings before certain international courts, where they have jurisdiction”

(Ratione personae)

Question 8

Al Bashir Arrest Warrant

Answer 8

ICC case.

Question 9

Eichmann case

Answer 9

State agents acting in their official capacity may not be immune from criminal liability in the case of international crimes. (Ratione materiae)