Nordic Journal of International Law

90 (2021) 228-252

Diplomatic Immunity Ratione Materiae and Crimes

in International Law

Xinxiang Shi
Postdoctoral researcher, Dalian Maritime University Law School,
Dalian, China
PhD, University of Edinburgh Law School, Edinburg, Scotland
xinxiang-shi@outlook.com

Abstract

Diplomatic immunity ratione materiae covers not official acts in general but merely
acts performed in the exercise of diplomatic functions. Consequently, crimes in
international law cannot be protected by this immunity because Article 3(1) of the
Vienne Convention on Diplomatic Relations (vcdr) in general should accord with
international law, although certain functions under the Article do not contain a ‘legal’
element. Further, diplomatic immunity ratione materiae cannot be upheld for jus
cogens violations because Article 3(1) must not contradict a jus cogens prohibition.
The dividing line between the procedural rule of immunity and the substantive rule
of jus cogens is blurred by the fact that the scope of diplomatic immunity ratione
materiae essentially hinges upon the contents a substantive treaty provision setting
out diplomatic functions.

Keywords

diplomatic immunity – immunity ratione materiae – international crimes – jus cogens

– Vienna Convention on Diplomatic Relations

©  Xinxiang Shi, 2021 | doi:10.1163/15718107-bja10025

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diplomatic immunity 229

1 Introduction

A main controversy relating to current debate on the immunity of state offi-

cials from foreign jurisdiction1 is the availability of immunity ratione materiae
for crimes in international law.2 Immunity ratione materiae protects an indi-
vidual for official acts performed on behalf of his/her state. However, crimes
in international law, due to their gravity and widespread impact, are usually
committed in an official context, viz. with the express or tacit authorisation of
the state.3 This in turn suggests that a state official who has committed these
crimes would be protected by immunity ratione materiae save for the unlikely
situation where a crime has been committed by the official in a purely private
capacity. This suggestion has nonetheless been heavily challenged since the
British case of Pinochet, in which the House of Lords ruled that the former
leader of Chile did not enjoy immunity ratione materiae from jurisdiction for
the crime of torture which, according to the Torture Convention, pertains only
to acts performed ‘in an official capacity’.4 In their response to the International
Law Commission’s (ilc) ongoing project of Immunity of State Officials from
Foreign Criminal Jurisdiction, states also disagree as to whether crimes in
international law could be covered by immunity ratione materiae.5

1 This article is not concerned with jurisdiction of international courts or tribunals, which is
widely perceived as not affected by immunity of state officials in general international law.
2 The term ‘crimes in international law’ used in this article is intended to be broader in
scope than the traditional ‘core’ international crimes (genocide, crimes against humanity,
war crimes, aggression) and includes acts which are generally criminalised in international
law, such as torture and terrorism. In this respect, the term is more in line with the liberal
interpretation of ‘international crimes’ supported by some international criminal law
scholars. See, e.g., M.C. Bassiouni (ed.), International Criminal Law, Vol. I: Sources, Subjects,
and Contents (Brill Nijhoff, Leiden, 2008) pp. 132–135. Cf. R. Cryer et al., An Introduction to
International Criminal Law and Procedure (Cambridge University Press, Cambridge, 2019)
p. 335.
3 W.A. Schabas, ‘State Policy as an Element of International Crimes’, 98 Journal of Criminal
Law and Criminology (2008) pp. 953–982. In fact, certain international crimes are by
definition official in nature. See, e.g., Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, 1465 unts 85, Article 1(1).
4 Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet
Ugarte (No. 3), Judgment of the House of Lords of 24 March 1999, [2000] 1 ac 147. For
academic discussion of the decision, see, J.C. Barker, ‘The Future of Former Head of
State Immunity after ex parte Pinochet’, 48 International and Comparative Law Quarterly
(1999) pp. 937–949; E. Denza, ‘Ex Parte Pinochet: Lacuna or Leap?’, 48 International and
Comparative Law Quarterly (1999) pp. 949–958.
5 Comments by governments can be found at <legal.un.org/ilc/guide/4_2.shtml>, visited
on 20 May 2020. For a summary of different opinions expressed at the Sixth Committee,

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230 shi

It is not uncommon that authors and practitioners, in dealing with immu-

nity ratione materiae of state officials in general international law, refer to
diplomatic immunity ratione materiae under Article 39(2) of the Vienna
Convention on Diplomatic Relations (vcdr),6 which provides that a former
diplomat enjoys immunity for acts performed “in the exercise of his functions
as a member of the mission”.7 The connection between the two immunities
lies in the fact that they both protect a state official (diplomat or otherwise)
for acts performed on behalf of his or her state. In light of this connection, it is
perhaps surprising that, while immunity ratione materiae in general interna-
tional law has been subject to fierce debate, the relationship between diplo-
matic immunity ratione materiae and crimes in international law has received
little attention in literature.
In practice, however, diplomatic agents, as representatives of the sending
state, may be involved in the perpetration of serious crimes in just the same
manner as ordinary state officials. Since the adoption of the vcdr, numerous
allegations have been made against diplomatic agents in this respect. Some of
these allegations pertain to acts performed before the diplomat took up the
position in the receiving state and thus are not strictly relevant for diplomatic
immunity ratione materiae.8 Others concern purely private acts which do
not attract diplomatic immunity ratione materiae regardless of their serious

see, Topical summary of the discussion held in the Sixth Committee of the General Assembly
during its seventy-second session (UN Doc. A/cn.4/713), paras. 29–42.
6 Vienna Convention on Diplomatic Relations, 500 unts 95, Article 39(2).
7 The legislation of the United Kingdom, for example, extends diplomatic immunity
ratione materiae to former heads of state. State Immunity Act 1978, Article 20(1), <www.
legislation.gov.uk/ukpga/1978/33>, visited on 10 May 2020. For academic opinions, see,
e.g., A. Cassese, ‘When May Senior State Officials Be Tried for International Crimes?
Some Comments on the Congo v. Belgium Case’, 13 European Journal of International Law
(2002) p. 868; H.F. Van Panhuys, ‘In the Borderland between the Act of State Doctrine and
Questions of Jurisdictional Immunities’, 13 International and Comparative Law Quarterly
(1964) p. 1206.
8 This is typically the case when a diplomat had served in the military or intelligence
department prior to taking up the position in the receiving state. For instance, the then
ambassador of Israel to Denmark, Carmi Gillon, had been accused of authorising torture
of Palestinian detainees while he was serving as the chief of the Israeli intelligence service.
Denmark refused to prosecute the diplomat due to his personal diplomatic immunity.
A. Osborn, ‘Danish protests greet Israeli envoy’, The Guardian, 16 August 2001, <www.
theguardian.com/world/2001/aug/16/israel>, visited on 28 July 2020. For a similar case
concerning a senior Sri Lankan diplomat in the UK, see, S. Jones, ‘Sri Lankan diplomat may
avoid questioning on war crimes claims’, The Guardian, 5 April 2012, <www.theguardian.
com/politics/2012/apr/05/sri-lankan-diplomat-war-crimes-allegations>, visited on 20 July
2020.

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diplomatic immunity 231

nature.9 However, it is only in situations where a serious crime committed on

the territory of the receiving state has a clear ‘official’ nature that the conflict
between diplomatic immunity ratione materiae and serious crimes is most
acute. Thus, if a diplomatic agent is instructed to kidnap an individual and tor-
ture him or her to death in the mission premises,10 or, alternatively, if the dip-
lomat is tasked with helping carry out a terrorist attack in the receiving state,11
questions may arise as to whether the crimes of enforced disappearance, tor-
ture and terrorism could be covered by diplomatic immunity ratione materiae.
It is therefore the purpose of this article to answer the question whether
diplomatic immunity ratione materiae extends to crimes in international law
that are official in nature. Section 2 will provide some preliminary observa-
tions regarding the availability of immunity ratione materiae in customary
international law for crimes in international law. Section 3 will deal with the
relationship between diplomatic immunity ratione materiae and immunity
ratione materiae of ordinary state officials. This will be done by examining
the controversial issue of whether ‘functions’ of a diplomatic agent should be
interpreted outside the framework of Article 3(1) of the vcdr (which sets out
the functions of a diplomatic mission) and encompass official instructions by

9 In Swarna v. Al-Awadi, the domestic servant of a former Kuwaiti diplomat alleged that
the diplomat had violated the employment contract and subjected her to slavery. The US
Court of Appeals rejected diplomatic immunity ratione materiae by holding that both the
employment and the treatment of the servant were private acts of the diplomat. Swarna
v. Al-Awadi, Judgment of Court of Appeals of 24 September 2010, 622 F.3d 123. See also,
Baoanan v. Baja, Judgment of District Court of New York of 16 June 2009, 627 F.Supp.2d
155; Reyes v. Al-Malki, Judgment of Supreme Court of 18 October 2017, [2017] uksc 61.
10 The murder of Saudi journalist Jamal Khashoggi in the Saudi consulate in Istanbul is fresh
evidence that diplomatic or consular staff may well be involved in the perpetration of
serious crimes. See, ‘Jamal Khashoggi: All you need to know about Saudi journalist’s death’,
BBC News, 19 June 2019, <www.bbc.com/news/world-europe-45812399>, visited on 20 July
2020. In her report submitted to the UN Human Rights Council, the UN Special Rapporteur
on extrajudicial, summary or arbitrary executions concluded that the circumstances of the
killing of Khashoggi may constitute torture and enforced disappearance. It is also revealed
that Saudi embassy staff and consular officials have, to various extent, been involved in
the killing. See, A. Callamard, Report of the Special Rapporteur on extrajudicial, summary or
arbitrary executions: Investigation into the unlawful death of Mr. Jamal Khashoggi (UN Doc.
A/hrc/41/CRP.1), para. 3.
11 Former Syrian Ambassador to the German Democratic Republic, Judgment of the Federal
Constitutional Court of the Federal Republic of Germany of 10 June 1997, 115 International
Law Reports 595. See also, the Hadi Soleimanpour incident, where Argentina requested
the United Kingdom to extradite the former Iranian ambassador to Argentina over his
involvement in a terrorist attack in Buenos Aires. ‘Iran ex-diplomat faces terror hearing’,
BBC News, 22 August 2003, <news.bbc.co.uk/2/hi/americas/3174625.stm>, visited on 20
July 2020.

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232 shi

the sending state in general. Based on the conclusion of section 3, section 4 will
explore the relationship between diplomatic immunity ratione materiae and
crimes in international law.

2 Immunity Ratione Materiae and Crimes in International Law: Some

Preliminary Observations

The main controversy concerning the relationship between immunity ratione

materiae and crimes in international law is whether crimes committed in an
official capacity should be protected by immunity in a foreign domestic pro-
ceeding. Proponents of denial of immunity often hold the view that immunity
ratione materiae would lead to impunity for these crimes.12 On a normative
level, it has been argued that recognition of immunity ratione materiae contra-
dicts either the principle of individual criminal responsibility in international
law13 or the principle of universal jurisdiction,14 both of which are concepts
closely related to crimes in international law.
From a positivist perspective, however, it is difficult to maintain that an
exception to immunity ratione materiae based on crimes in international law
exists in customary rules. Although domestic prosecutions of foreign officials
have been a relatively common phenomenon, in the majority of these prose-
cutions the issue of immunity ratione materiae simply did not arise.15 This in

12 See, e.g., N.S. Rodley, ‘Breaking the Cycle of Impunity for Gross Violations of Human
Rights: The Pinochet Case in Perspective’, 69:1 Nordic Journal of International Law (2000)
pp. 11–26. L. McGregor, ‘Torture and State Immunity: Deflecting Impunity, Distorting
Sovereignty’, 18 European Journal of International Law (2007) pp. 903–919.
13 Cassese, supra note 5, p. 864; R. Van Alebeek, ‘National Courts, International Crimes and
the Functional Immunity of State Officials’, 59 Netherlands International Law Review
(2012) p. 36. The icty Appeals Chamber also held in Blaškić that functional immunity
does not extend to crimes such as war crimes, crimes against humanity, and genocide
because individuals committing these crimes ‘may be held personally accountable for
their wrongdoing’. Prosecutor v. Tihomir Blaškić, Judgment of the Appeals Chamber of 29
October 1997 (it-95-17/1-T), para. 41.
14 D. Akande and S. Shah, ‘Immunities of State Officials, International Crimes, and Foreign
Domestic Courts’, 21 European Journal of International Law (2011) p. 843; L.D. Smet and F.
Naert, ‘Making or Breaking International Law? An International Law Analysis of Belgium’s
Act concerning the Punishment of Grave Breaches of International Humanitarian Law’,
35 Revue Belge de Droit International (2002) p. 506. Several Lords in the Pinochet case also
expressly supported this line of argument, see Pinochet case, supra note 2, pp. 289 [Lord
Phillips of Worth Matravers], 205 [Lord Browne-Wilkinson].
15 See, e.g., Barbie, Judgment of the Court of Cassation of France of 20 December 1985, 78
International Law Reports 125; Scilingo Manzorro (Adolfo Francisco) v. Spain, Judgment

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diplomatic immunity 233

turn casts doubt on the relevance of these cases, as non-invocation of immu-

nity seems in itself sufficient to deny immunity in the absence of any potential
exceptions.16 Further, there are also cases pointing to the opposite direction. In
Jones v. Saudi Arabia, the UK House of Lords ruled that the official nature of the
crime of torture necessarily attracts immunity ratione materiae from civil pro-
ceedings and that no exception to this immunity exists in international law.17
In his dismissal of the criminal prosecution against the US former Secretary of
Defense Donald Rumsfeld for alleged torture, the Paris District Prosecutor also
took the view that torture is covered by immunity ratione materiae.18 Similarly,
in Dogan v. Barak, the US Department of State made clear in its Suggestion of
Immunity that the United States does not recognise any exception to a foreign
official’s functional immunity based on jus cogens violations, and this position
was accepted by the court.19
The normative-conflict arguments are not particularly convincing, either.
The individual responsibility approach largely hinges upon a substantive
understanding of immunity ratione materiae, viz. that the immunity forms

of the Supreme Court of Spain of 1 October 2007, No 798, ildc 1430; R. v. Mafart and
Prieur, Judgment of the High Court of Auckland of 22 November 1985, 74 International Law
Reports 41. For a detailed analysis of the relevance of cases which purportedly support the
denial of immunity ratione materiae, see, R.A. Kolodkin, Second report on immunity of State
officials from foreign criminal jurisdiction (UN Doc. A/cn.4/631), paras. 69–71. See also, with
respect to the relevance of practice before international military tribunals, V. Klingberg,
‘(Former) Heads of State before International (ized) Criminal Courts: the Case of Charles
Taylor before the Special Court for Sierra Leone’, 46 German Yearbook of International Law
(2003) pp. 552–556.
16 In Mutual Assistance, the icj held that France did not violate the functional immunity of
certain Djiboutian officials because Djibouti had not invoked immunity on their behalf.
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), 4 June
2008, icj, Judgment, p. 243, paras. 195–196, <www.icj-cij.org/files/case-related/136/136-
20080604-JUD-01-00-EN.pdf>, visited on 12 August 2020. Kolodkin also argued that non-
invocation of immunity amounts to an implied waiver. See, R.A. Kolodkin, Third report on
immunity of State officials from foreign criminal jurisdiction (UN Doc. A/cn.4/646), para.
55.
17 Jones v. Saudi Arabia, Judgment of House of Lords of 14 June 2006, [2006] ukhl 26. This
decision was later confirmed by the ECtHR, Jones v. The United Kingdom, Judgment of
European Court of Human Rights of 14 January 2014, ECtHR Applications nos. 34356/06
and 40528/06.
18 The decision letter of the prosecutor is reprinted at the Memorandum prepared by
the Secretariat on Immunity of State Officials from Foreign Criminal Jurisdiction. See,
Immunity of State officials from foreign criminal jurisdiction (UN Doc. A/cn.4/596), p. 122,
footnote 523.
19 Dogan v. Barak, Judgment of the District Court of California of 13 October 2016, 2016 wl
6024416, p. 10.

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234 shi

a substantive defence which excludes individual responsibility for official

acts.20 Thus, when an international rule specifically imposes individual liabil-
ity, immunity must be denied. However, immunity ratione materiae serves the
unique purpose of ensuring that a state is not indirectly impleaded in a pro-
ceeding against its officials acting on its behalf.21 This rationale is not affected
by the fact that an official act may be attributed simultaneously to the individ-
ual and the state. Immunity ratione materiae primarily protects a state, not a
state official. It is therefore difficult to understand why this protection could
simply be set aside when individual responsibility is involved. After all, immu-
nity from jurisdiction and individual responsibility in international law are dis-
tinct matters which do not conflict with each other.22
The alleged conflict between universal jurisdiction and immunity ratione
materiae is also doubtful. Proponents of this argument often invokes the prin-
ciple of lex posterior derogat legi priori and argues that the principle of univer-
sal jurisdiction, being later in time, must prevail the older rule of immunity
ratione materiae.23 Yet this principle applies only between two rules regulating
the same issue. Immunity and jurisdiction, however, are distinct matters. The
consideration of jurisdiction, to which rules on immunity merely constitute an
exception, logically precedes the determination of immunity ratione materiae.
If a court decides that it does not possess jurisdiction over a particular dispute,
the issue of immunity simply does not arise. On the other hand, if the court
does possess jurisdiction over the dispute but cannot execute this jurisdiction
due to immunity, the existence of jurisdiction ensures that the state official
involved would be brought to trial if his or her immunity is waived. In other
words, jurisdictional clauses in international conventions are not meaningless
simply because they concern crimes which are usually covered by immunity
ratione materiae.24 Thus, in making a clear distinction between jurisdiction

20 Cassese, supra note 5, p. 863; Alebeek, supra note 9, p. 14.

21 See, Commentaries to Article 2(1)(b)(v) of the United Nations Convention on Jurisdictional
Immunities of States and Their Property (cjis), Yearbook of the International Law
Commission (1991) Vol. II, Part Two, p. 18, para. 18. See also, H. Fox, The Law of State Immunity
(Oxford University Press, Oxford, 2008) pp. 708–709.
22 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 14 February
2002, icj, Judgment, para. 60, <https://www.icj-cij.org/files/case-related/121/121-20020214-
JUD-01-00-EN.pdf>, visited on 12 August 2020.
23 Akande and Shah, supra note 10, pp. 840–841. Lord Saville of Newdigate also indicated
in Pinochet that the accession of Chile, Spain and the United Kingdom to the Torture
Convention means that there is a new agreement regarding “an exception or qualification
to the general rule of immunity ratione materiae”. Pinochet case, supra note 2, p. 267.
24 This seems to be the main argument of the House of Lords in Pinochet, viz. immunity
ratione materiae would deprive the practical meaning of universal jurisdiction under the

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diplomatic immunity 235

and immunity in Arrest Warrant, the International Court of Justice (icj)

pointed out that the obligation of states (under international conventions) to
expand their criminal jurisdiction “in no way affects immunities under cus-
tomary international law, including those of Ministers for Foreign Affairs”.25
It remains to be seen how the ilc will deal with this topic and how states
will respond to the ilc’s approach.26 However, it seems that, at current stage,
there is no exception to immunity ratione materiae based on crimes in interna-
tional law. It is questionable whether extraterritorial prosecution, which nec-
essarily entails difficulties relating to investigation and evidence collection, is
at all the ideal approach of ensuring impunity and realising justice. On the
other hand, an imprudent restriction of immunity ratione materiae is likely to
result in politically motivated prosecutions which will almost certainly disrupt
interstate relations.

3 Diplomatic Immunity Ratione Materiae as a Distinct Concept:

What are the Functions of a Diplomatic Agent?

A central issue relating to the scope of diplomatic immunity ratione mate-

riae, and one which bears on the relationship between diplomatic immunity
ratione materiae and immunity ratione materiae in general international law,
is the meaning of the ‘functions’ of a diplomatic agent. Under the vcdr, dip-
lomatic immunity ratione materiae protects a former diplomat for acts per-
formed in the exercise of his functions.27 Article 3(1) of the Convention, on the

Torture Convention. See, e.g., the comments made by Lord Browne-Wilkinson, Lord Hope
of Craighead, Lord Phillips of Worth Matravers at Pinochet case, supra note 2, pp. 205, 248,
289 respectively.
25 Arrest Warrant case, supra note 18, para. 59 (emphasis added). In a similar vein, and with
respect to the related concept of aut dedere aut judicare, the icj stated that the fulfilment
of the obligation to prosecute or extradite “may or may not result in the institution of
proceedings”. Questions relating to the Obligation to Prosecute or Extradite (Belgium v.
Senegal), 20 July 2012, icj, Judgment, paras. 94, 90, <https://www.icj-cij.org/files/case-
related/144/144-20120720-JUD-01-00-EN.pdf>, visited on 12 August 2020. In its Final Report
on the topic, the ilc characterize immunities as one of the “circumstances excluding the
operation of the obligation”. The obligation to extradite or prosecute (UN Doc. A/69/10), p.
164, para. 57.
26 In her proposed draft Article 7, Special Rapporteur Hernández lists several crimes
in international law as exceptions to immunity ratione materiae, but this article has
encountered strong objections both within the ilc and at the Sixth Committee. For the
draft article, see, C.E. Hernández, Fifth report on immunity of State officials from foreign
criminal jurisdiction (UN Doc. A/cn.4/701).
27 vcdr, supra note 4, Article 39(2).

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236 shi

other hand, provides for the functions of a diplomatic mission as a whole.28

It has been argued that functions of a diplomat are in fact broader in scope
than functions of a diplomatic mission. Crawford, for example, indicates that
diplomatic immunity ratione materiae “appears to extend to acts undertaken
by a diplomat which were ordered by the sending State”.29 In a similar vein,
Salmon points out that diplomatic immunity ratione materiae covers all acts
that are attributable to the sending state in accordance with rules of attri-
bution of state responsibility.30 He contrasts Article 39(2) of the vcdr with
Article 43(1) of the Vienna Convention on Consular Relations (vccr) – which
is patterned on Article 39(2)31 but which provides that consular immunity pro-
tects acts performed in the exercise of consular functions32 – and argues that
the absence of the word ‘diplomatic’ before ‘functions’ in the former indicates
that reference should not be made to Article 3(1) of the vcdr.33 In the case
of Former Syrian Ambassador to the German Democratic Republic, the Federal
Constitutional Court of Germany also followed this line of thought and ruled
that a former ambassador who had helped carry out a terrorist attack in the
receiving state would be protected by diplomatic immunity ratione materiae if
the act had been instructed by the sending state’s government.34
By pulling ‘functions of a diplomat’ outside the framework of Article 3(1)
of the vcdr, these arguments essentially seek to align diplomatic immunity
ratione materiae with immunity ratione materiae in general international law.
Underlying this alignment is the belief that, since immunity ratione materiae
is in fact state immunity which protects an individual for acts performed on

28 vcdr, supra note 4, Article 3(1).

29 J.R. Crawford, Brownlie’s Principles of Public International Law (Oxford University Press,
Oxford, 2012) p. 408. Denza’s position is less clear in this respect. In the context of
Article 31(1)(c) of the vcdr, which provides that a diplomat does not enjoy immunity
for commercial or professional activity performed ‘outside his official functions’, Denza
takes the view that a diplomat’s functions should be broader in scope than Article 3(1)
and encompass any superior instruction as long as such instruction does not exceed
the ‘bounds of proper activity’. In the context of Article 39(2), however, she states that
reference should be made to Article 3(1). E. Denza, Diplomatic Law: Commentary on the
Vienna Convention on the Diplomatic Relations (Oxford University Press, Oxford, 2008) pp.
307, 448.
30 J. Salmon, Manuel de Droit Diplomatique (Brulant Delta, Brussels, 1994) p. 465. But it
should be noted that the author enters a caveat on international crimes which impose
individual liability, although he does not expound on this point.
31 See, the ilc’s commentary on the different wording between Article 43(1) and Article 71(1)
of the vccr, Yearbook of the International Law Commission (1961) Vol. II, p. 127.
32 1963 Vienna Convention on Consular Relations, 596 unts 261, Article 43(1).
33 Salmon, supra note 26, p. 465.
34 Former Syrian Ambassador case, supra note 7.

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behalf of his or her state,35 no distinction could be made between a diplomatic

agent and an ordinary state official.36 It then follows that, to the extent that
immunity ratione materiae in general international law may protect crimes
committed in an official capacity, Article 39(2) of the vcdr would also shield a
former diplomat who has committed these crimes from the jurisdiction of the
receiving state.37
Yet diplomatic immunity ratione materiae is subject to a conventional regime
which sets out, if ambiguously, its scope and limits.38 In essence, this immunity,
like any other convention-based immunity regime, constitutes a concession of
part of the territorial state’s jurisdiction which is made in order to facilitate the
performance of functions recognised by the territorial state.39 In the words of
Hurst, diplomatic immunity is not due to the fact that a diplomat is engaged
“on the business of a foreign government”, but to the fact that “he is part of the
machine to maintain the relations between the two governments”.40 Article 3(1)
of the vcdr sets out the contents (and limits) of the license for a sending state to
conduct official business in the receiving state. If a diplomat’s functions could
be interpreted outside the framework of Article 3(1), it must be questioned why
the diplomat has the right to perform these functions in the receiving state in
the first place. In this respect, Akehurst is clearly justified when he states that
diplomatic immunity and consular immunity are in fact based on an obligation
“not to derogate from an agent’s grant of a right of entry”.41

35 Mutual Assistance case, supra note 12, para. 188.

36 This seems to be the undertone of the ilc in its commentary to Article 2(1)(b)(iv) of the
cjis, where the Commission, citing an earlier case concerning the Greek ambassador to
Italy, states that immunity ratione materiae of (all) state agents representing the state is in
fact state immunity ratione materiae. Yearbook of the International Law Commission (1991)
Vol. II, Part Two, p. 18, para. 18. See also, O’Keefe, who argues that diplomatic immunity
ratione materiae is an extension of functional immunity in general international law to
diplomatic law. R. O’Keefe, International Criminal Law (Oxford University Press, Oxford,
2015) p. 453.
37 This is the essence of the German court’s judgment in Former Syrian Ambassador to the
German Democratic Republic, see, Former Syrian Ambassador case, supra note 7.
38 Diplomatic functions in Article 3(1) of the vcdr are set out in broad terms, and the list in
the article is non-exhaustive. vcdr, supra note 4, Article 3(1).
39 The Preamble of the vcdr states that the purpose of immunity is not to benefit
individuals but to ensure the efficient performance of functions of diplomatic missions
as representing states. vcdr, supra note 4, Preamble. See also, R. Higgins, ‘The Abuse of
Diplomatic Privileges and Immunities: Recent United Kingdom Experience’, 79 American
Journal of International Law (1985) p. 641.
40 C.J.B. Hurst, ‘Diplomatic Immunities—Modern Developments’, 10 British Yearbook of
International Law (1929) p. 4.
41 M. Akehurst, ‘Jurisdiction in International Law’, 46 British Yearbook of International Law
(1972–1973) p. 244.

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238 shi

In state practice, the importance of this recognition is reflected in the atti-

tude of receiving states when they are dealing with official but non-diplomatic
activity of a foreign mission. The UK government, for example, stated in its 1985
report that it would no longer recognise the diplomatic status of foreign tour-
ists offices even though they could be regarded as governmental in character.42
The United States, for its part, stated in a circular note to diplomatic missions
in Washington D.C. that it would no longer recognise the diplomatic status of
diplomats who, albeit accredited to a foreign mission, are in fact performing
duties as a representative of the sending state to an international organisa-
tion.43 For the US, although Article 5(3) of the vcdr permits such practice, the
functions performed by such a diplomat are “necessarily collateral and subor-
dinate to” his or her diplomatic functions.44
On another occasion, the restrictive interpretation of diplomatic functions
by the receiving state was even endorsed by the sending state. In 1985, the
issuance by the Sri Lankan High Commission in Australia of a series of let-
ters, which aimed at raising funds for the so-called National Defence Fund of
Sri Lanka, raised the attention of the Australian government. The Australian
Ministry for Foreign Affairs stated that, although this kind of fund raising was
not prohibited by the vcdr, it should not be encouraged. This position was
accepted by Sri Lanka, whose high commissioner later promised no further
fund-raising.45
In fact, although the vcdr does not explicitly relate Article 39(2) to Article
3(1), a review of the travaux préparatoires shows that drafters of the Convention
have treated ‘functions of a diplomatic mission’ and ‘functions of a diplomat’
as the same. In the ilc 1957 discussion on Article 3(1), for example, El-Erian
pointed out that a provision on the functions of a diplomatic mission is nec-
essary because reference needs to be made to such a provision when the func-
tions of a diplomatic agent come into question.46 Scelle, for his part, simply
equated the functions of a diplomatic mission with the functions of an ambas-
sador.47 Indeed, throughout the drafting history of the vcdr, the concept of

42 ‘Diplomatic Immunities and Privileges: Government Report on Review of the Vienna

Convention on Diplomatic Relations and Reply to “The Abuse of Diplomatic Immunities
and Privileges”’, 1984/85 Cmnd. 9497, para.39(c).
43 M.L. Nash (ed.), Digest of United States Practice in International Law (1978) (US Government
Printing Office, Washington, 1980) p. 537.
44 Ibid.
45 J. Brown, ‘Australian Practice in International Law (1984–1987)’, 11 Australian Yearbook of
International Law (1984) pp. 459–461.
46 Yearbook of the International Law Commission (1957) Vol. I, p. 50, para. 63 (El-Erian).
47 Ibid., para. 69 (Scelle).

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diplomatic immunity 239

‘functions of a diplomat’ as distinct from the functions of a diplomatic mission

has never been subject to any serious debate either within the ilc or at the
1961 Vienna Conference.
States’ attitude with regard to consular immunity at the 1963 Vienna
Conference on Consular Relations indirectly supports this understanding of
the functions of a diplomatic agent. The Brazilian delegate proposed during
the conference to replace ‘consular functions’ in Article 43(1) of the vccr with
‘official functions’.48 Explaining the proposal, the Brazilian representative indi-
cated that, since under Article 17 a consular officer is allowed to perform dip-
lomatic functions with the consent of the receiving state,49 Article 43(1) must
be phrased to cover this scenario.50 But this proposal was rejected by a rather
wide margin. It was pointed out, in particular, that ‘official functions’ could
be interpreted very widely by certain sending states.51 Meanwhile, even if the
Brazilian proposal had been adopted, it is clear that Brazil had intended the
phrase to apply only when the performance of extra-consular functions was
recognised by the receiving state.
It may be argued, as some members of the ilc did during the ilc 1957 dis-
cussion on diplomatic interference,52 that depriving a diplomat’s immunity for
acts performed following instructions may turn him into a ‘diplomatic whip-
ping boy’ for the wrongful act of the sending state. However, it should be noted
that, in the first place, an act being performed following instruction does not
necessarily mean that the diplomat has no personal liability. Individual crim-
inal responsibility exists in international law (for international crimes which
impose individual responsibility) or domestic law (for other criminal activity
performed in an official capacity) even if the act in question is instructed by,
and thus attributed to, the sending state.53 This in turn suggests that there is

48 Official Records of the United Nations Conference on Consular Relations, Vol. II, p. 84,
<https://legal.un.org/docs/?path=../diplomaticconferences/1963_cons_relations/docs/
english/vol_2.pdf&lang=EF>, visited on 12 August 2020.
49 vccr, supra note 28, Article 17(1).
50 Official Records of the United Nations Conference on Consular Relations, Vol. I, p. 374, para. 26
(Brazil), <https://legal.un.org/docs/?path=../diplomaticconferences/1963_cons_relations/
docs/english/vol_1.pdf&lang=EF>, visited on 12 August 2020.
51 Ibid., para.32 (Ukrainian Soviet Socialist Republic).
52 Yearbook of the International Law Commission (1957), Vol. I, p. 147, para. 22 (Fitzmaurice);
para. 17 (Hsu).
53 Article 58 of the Responsibility of States for International Wrongful Acts provides that
articles on State responsibility are ‘without prejudice’ to any question of individual
responsibility under international law of any person acting on behalf of a state. The
ilc explained in its commentary to the article that state officials may not “hide behind
the state in respect of their own responsibility”, see, Yearbook of the International Law

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240 shi

nothing wrong in ‘whipping’ the diplomat for his or her wrongdoing. Secondly,
and more importantly, a receiving state has no obligation to recognise the offi-
cial nature of a function that falls outside the remit of Article 3(1), as immunity
is granted for the performance of diplomatic functions instead of official func-
tions of the sending state in general. This means that an official but non-diplo-
matic act could be regarded, for the sake of determining diplomatic immunity
ratione materiae, as the private act of the (former) diplomat. It is true that a
certain amount of unfairness would result for the diplomat, yet this seems to
be the corollary of performing official functions for one state on the territory of
another state in an arena which consists of equal sovereign players – it is one
thing to say that an act is official in nature (because it has been instructed by the
sending state), but quite another to say that the official nature of the act would
be recognised by the territorial state. Incidentally, this analysis also indicates
that immunity ratione materiae in general international law cannot apply by
default when diplomatic immunity ratione materiae under Article 39(2) is not
available. For official but non-diplomatic activities, the status of a former dip-
lomat would be the same as a foreign agent who has performed an official (but
illegal) act on the territory of the receiving state without that state’s prior con-
sent. Domestic courts have been consistent in rejecting immunity in this latter
scenario,54 and this consistency has led the ilc special rapporteur on Immunity
of State Officials from Foreign Criminal Jurisdiction to conclude that:

If a State did not give its consent to the presence of a foreign official and
his activity, which led to the commission of a criminally punishable act,
in its territory, there would appear to be sufficient grounds for assuming
that the official does not enjoy immunity ratione materiae from the juris-
diction of that State.55

Diplomatic immunity ratione materiae as lex specialis is the only form of

immunity enjoyed by former diplomatic agents in the receiving state.

Commission (2001), Vol. II, Part Two, p. 143, para. 3. See also, R.A. Kolodkin, Preliminary
report on immunity of State officials from foreign criminal jurisdiction (UN Doc. A/cn.4/601)
p. 180, para. 89; A. Nollkaemper, ‘Concurrence between Individual Responsibility and
State Responsibility in International Law’, 52 International and Comparative Law Quarterly
(2003) pp. 615–640.
54 See, e.g., General Prosecutor at the Court of Appeals of Milan v. Adler and ors, Judgment of
the Court of Cassation of Italy of 29 November 2012, No 46340/2012, ildc 1960 (it 2012);
Khurts Bat v. Investigating Judge of the German Federal Court, Judgment of the Court of
Queen’s Bench of 29 July 2011, 147 International Law Reports 633.
55 Second report by Kolodkin, supra note 13, para. 85.

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diplomatic immunity 241

The above analysis points to the conclusion that the scope of the ‘functions
of a diplomat’, and hence the scope of diplomatic immunity ratione materiae,
must be understood within the framework of Article 3(1) of the vcdr. Acts
performed in the exercise of diplomatic functions should not be simply con-
sidered as acts under instruction or acts performed in an official capacity. This
means that an act may be deemed official in general international law but
unofficial in diplomatic law. What then is the implication of this conclusion
with regard to the relationship between diplomatic immunity ratione materiae
and crimes in international law?

4 The Relationship between Crimes in International Law and

Diplomatic Immunity Ratione Materiae

Article 3(1) of the vcdr lists diplomatic functions in a non-exhaustive manner

which include, inter alia:
(a) Representing the sending State in the receiving State;
(b) Protecting in the receiving State the interests of the sending State and of
its nationals, within the limits permitted by international law;
(c) Negotiating with the Government of the receiving State;
(d) Ascertaining by all lawful means conditions and developments in the
receiving State, and reporting thereon to the Government of the sending
State;
(e) Promoting friendly relations between the sending State and the receiving
State, and developing their economic, cultural and scientific relations.56
Among the five main functions enumerated in the Article, only the function
of protection and the function of observation have a clear ‘legal’ element. In
Abu Omar, the Court of Appeal of Milan rejected diplomatic immunity ratione
materiae of three US diplomats who had helped kidnap an Egyptian imam in
Italy and later transfer him to Egypt, where he was allegedly tortured.57 For the
Court, although the kidnapping, which was clearly part of the US government’s
policy of fighting international terrorism, might be understood as pertaining to
the function of protection under Article 3(1)(b) of the vcdr, the phrase ‘within

56 vcdr, supra note 4, Article 3(1).

57 Criminal proceedings against Medero and ors, Judgment of the Court of Appeals of Milan
of 1 February 2013, No 747/2013, 22 Italian Yearbook of International Law (2013) pp. 388–398.
The Court of Cassation later confirmed the ruling, but did not address the relationship
between Article 39(2) and Article 3(1)(b) of the vcdr. In the matter of criminal proceedings
against Medero and ors, Medero and ors v. Nasr (aka Abu Omar) and Ghali, Judgment of
the Court of Cassation of Italy of 25 September 2014, No 39788/2014, ildc 2239 (it 2014).

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242 shi

the limits permitted by international law’ excluded the application of immu-

nity because the diplomats’ acts are in violation of international human rights
law.58 On the other hand, however, the absence of this ‘legal’ element in other
three functions seems to imply that crimes in international law may also be
taken as part of diplomatic functions. Thus, a diplomat may be said to have
performed the function of representation if he or she has tortured a political
dissident in the mission premises under the instruction of the sending state.59
Similarly, Akande and Shah point out that, pursuant to Article 3(1)(c), it is pos-
sible that an ambassador who has negotiated on behalf of the sending state
with the receiving state to conspire to commit genocide would be regarded as
having performed his or her function of negotiation.60
However, a detailed examination of the drafting history of Article 3(1)
reveals that this implication was not the intention of the parties. The phrase
‘within the limits permitted by international law’ in Article 3(1)(b), which was
not added to the Article until the Vienna Conference,61 was merely meant to
clarify ex abundante cautela that the function of protection must be performed
in conformity with international law.62 The purpose of this clarification is to
reassure states which had been subject to illegal interference in pre-vcdr era
that the function of protection would not be performed as a pretext of for-
eign interference; it does not imply that other functions need not to fall inside
the remit of international law. In fact, despite the absence of the phrase in
other sub-paragraphs, there was wide consensus among states at the Vienna
Conference that diplomatic functions in general must be carried out in accord-
ance with international law.63
Further, if the prohibition of a serious crime assumes jus cogens nature, it
would be impossible to recognise diplomatic immunity ratione materiae for
such a crime because the recognition would bring Article 3(1) of the vcdr into

58 Medero case, supra note 57, p. 397.

59 See, Khashoggi incident, supra note 6.
60 Akande and Shah, supra note 10, p. 850.
61 Following an amendment proposed by Mexico, see, Official Records of the United
Nations Conference on Diplomatic Intercourse and Immunities, Vol. II, p. 11, <https://legal.
un.org/docs/?path=../diplomaticconferences/1961_dipl_intercourse/docs/english/vol_2.
pdf&lang=EF>, visited on 12 August 2020.
62 Explaining the amendment, the Mexican representative stated, inter alia, that “the
Mexican amendment was intended not to alter but to clarify the concept”. Official Records
of the United Nations Conference on Diplomatic Intercourse and Immunities, Vol. I, p. 80,
para. 12 (Mexico), <https://legal.un.org/docs/?path=../diplomaticconferences/1961_dipl_
intercourse/docs/english/vol_1.pdf&lang=EF>, visited on 12 August 2020.
63 See, e.g., the statement made by the representative of Soviet Union, France, Tunisia,
United Kingdom, United States, Hungary, ibid., pp. 80–81.

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diplomatic immunity 243

direct conflict with the jus cogens rule. Take the above-mentioned example of
conspiring to commit genocide: if we presume that the prohibition of gen-
ocide has jus cogens nature,64 recognising the diplomatic immunity ratione
materiae of an ambassador who has negotiated with the receiving state to
conspire to commit genocide would be tantamount to saying that the crime
of genocide falls into the remit of the function of negotiation in Article 3(1)
(c). Similarly, if the prohibition of torture has jus cogens character,65 uphold-
ing diplomatic immunity ratione materiae for an act of torture (which is by
definition official in nature) necessarily leads to the conclusion that torture is
part of the function of representation (or any other potential function in the
non-exhaustive list) under Article 3(1)(a). Yet the very legal effect of jus cogens
rules is that these rules nullify any conflicting treaty provision.66 In other
words, it is impossible to interpret Article 3(1) as being capable of encompass-
ing violations of jus cogens rules.67 Therefore, diplomatic immunity ratione
materiae, which is determined by reference to Article 3(1), cannot be upheld
in case of violation of jus cogens rules.
Admittedly, the scope of jus cogens rules in international law is still subject
to controversy,68 which in turn suggests that, in order to employ this jus cogens
argument to defeat a claim of diplomatic immunity ratione materiae, the court
must first demonstrate the jus cogens nature of the underlying crime. However,
this argument does provide a useful tool to understand the scope of diplomatic
immunity ratione materiae for crimes in international law and, more impor-
tantly, to reflect upon the relationship between immunity and jus cogens rules
in general.
The relationship between jus cogens rules and immunity from jurisdiction
has been subject to extensive debate both in practice and in literature. The
mainstream argument, represented by the majority of the icj in Jurisdictional
Immunity,69 as well as the majority of the European Court of Human Rights

64 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic
of the Congo v. Rwanda), 3 February 2006, icj, Judgment, para. 64, <https://www.icj-cij.
org/files/case-related/126/126-20060203-JUD-01-00-EN.pdf>, visited on 12 August 2020.
65 Obligation to Prosecute or Extradite case, supra note 21, para. 99.
66 Vienna Convention on the Law of Treaties, 1155 unts 331, Article 53.
67 See, on this point, Conclusion 42 of the ilc study on the Fragmentation of International
Law, Yearbook of the International Law Commission (2006), Vol. II, Part Two, p. 184, para. 42.
68 For a list of norms most frequently referred to as assuming jus cogens character, see, ibid.,
p. 182, para. 33. The scope and effect of jus cogens norms are currently under examination
of the ilc.
69 Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), 3 February
2012, icj, Judgment, <https://www.icj-cij.org/files/case-related/143/143-20120203-JUD-01-
00-EN.pdf>, visited on 12 August 2020.

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244 shi

(ECtHR) in Al-Adsani and Jones,70 states that there is no real conflict between
the substantive rules of jus cogens and the procedural rules of immunity from
jurisdiction. The latter rules concern merely the mechanism of dispute res-
olution and thus do not contradict the prohibition contained in a jus cogens
norm. On the other hand, the non-derogable nature of jus cogens rules does
not require the setting aside of all rules the application of which may merely
hinder or render more difficult the enforcement of these jus cogens rules.71 As
a result, immunity from jurisdiction should be upheld even if the underlying
activity involves violation of jus cogens prohibition.
The minority view, on the other hand, claims that the overriding effect of jus
cogens rules necessarily means that immunity from jurisdiction – which has
no jus cogens status – must be set aside. Two strands of argument exist under
this view. The first one, represented by several lords in the Pinochet and three
icj judges in the Arrest Warrant,72 states that violation of jus cogens may not
be regarded as official acts for the sake of immunity ratione materiae or sover-
eign acts (acta jure imperii) for the sake of state immunity.73 The second one,
represented by the dissenting judges in Al-Adsani,74 draws on the existence
of a normative hierarchy in international law and claims that the hierarchi-
cally superior norms of jus cogens must trump customary rules of immunity.75

70 Al-Adsani v. The United Kingdom, Judgment of the European Court of Human Rights of 21
November 2001, ECtHR Application no. 35763/97; Jones v. The United Kingdom, supra note
13.
71 D. Costelloe, Legal Consequences of Peremptory Norms in International Law (Cambridge
University Press, Cambridge, 2017) p. 271.
72 Pinochet case, supra note 2, pp. 203 (Browne-Wilkinson), 262 (Hutton). Arrest Warrant
case, supra note 18, p. 88, para. 85 (Separate opinion of Judges Higgins, Kooijmans and
Buergenthal). Although the three judges did not refer specifically to the effect of jus cogens
rules, the undisputed jus cogens nature of the acts in question (war crimes and crimes
against humanity), as well as their reference to cases and literature which clearly uphold
the effect of jus cogens rules, demonstrate their understanding in this respect.
73 Z. Douglas, ‘State Immunity for the Acts of State Officials’, 82 British Yearbook of
International Law (2012) pp. 341–342; M.A. Tunks, ‘Diplomats or Defendants? Defining
the Future of Head-of-State Immunity’, 52 Duke Law Journal (2002) p. 659; A. Bianchi,
‘Immunity versus Human Rights: The Pinochet Case’, 19 European Journal of International
Law (1999) p. 265.
74 Al-Adsani case, supra note 62, pp. 29–32 (Dissenting opinion of Judges Rozakis and
Caflisch, joined by Judges Wildhaber, Costa, Cabral Barreto and Vajić). See also, Arrest
Warrant case, supra note 18, p. 98, para. 7 (Dissenting opinion of Judge Al-Khasawneh);
Jurisdictional Immunity case, supra note 61, p. 286, para. 299 (Dissenting opinion of Judge
Cançado Trindade).
75 A. Orakhelashvili, ‘State Immunity and Hierarchy of Norms: Why the House of Lords
Got It Wrong’, 18 European Journal of International Law (2007) pp. 955–970; A. Clapham,
‘National Action Challenged: Sovereignty, Immunity and Universal Jurisdiction before the

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diplomatic immunity 245

A derivative argument following this line is that the jus cogens status of a sub-
stantive rule necessarily implies that its enforcement also has a jus cogens
character.76 Thus, immunity from jurisdiction must be disapplied because its
application would affect the realisation of the substantive jus cogens prohibi-
tion. In effect, both strands of argument seek to create an exception to immu-
nity from jurisdiction in international law, although the approaches taken are
not necessarily the same – whereas the first strand, by interpreting the ele-
ment of ‘official/sovereign acts’ in light of the nature of jus cogens, addresses
the issue within the framework of immunity rules, the second strand jumps
out of this framework and simply rejects the relevance of immunity when the
underlying activity concerns jus cogens violation.
Overall, the disagreement on this relationship boils down to two questions,
viz. whether there exists a normative gap between a jus cogens prohibition and
rules of immunity from jurisdiction, and how this gap may be filled. The main-
stream response to these questions is fast and simple: there is a gap and no
mechanism in current international law exists to fill it. The minority view, on
the other hand, either claims that no such gap exists (the trumping effect of jus
cogens), or seeks to bridge the gap by interpretive technics (the interpretation
of the ‘official/sovereign’ element of immunity rules).
The argument presented in this section regarding the relationship between
diplomatic immunity ratione materiae and jus cogens rules must be carefully
distinguished from the above two views. With regard to the mainstream argu-
ment, while it is in general correct to say that the normative gap between the
two sets of rules avoids a conflict between them, it is questionable whether the
(rather formalistic) procedural/substantive distinction operates with full force
in every single case concerning immunity.77 In literature, opinions have been
expressed that immunity ratione materiae represents not only a procedural bar

International Court of Justice’, in M. Lattimer and P. Sands (eds.), Justice for Crimes Against
Humanity (Hart Publishing, Portland, 2003) pp. 301–332; D. Shelton, ‘Normative Hierarchy
in International Law’, 100 American Journal of International Law (2006) pp. 291–323.
76 A. Orakhelashvili, Peremptory Norms in International Law (Oxford University Press, Oxford,
2008) p. 349.
77 For criticism of the distinction in general, see, C.E.M. Jervis, ‘Jurisdictional Immunities
Revisited: An Analysis of the Procedure Substance Distinction in International Law’, 30
European Journal of International Law (2019) pp. 105–128; Trindade, supra note 66, para.
295, Orakhelashivili, supra note 67, p. 968. In its commentary to Article 7 of the 1996 Draft
Codes of Offences against the Peace and Security of Mankind, the ilc also stated that:
“The absence of any procedural immunity with respect to prosecution or punishment in
appropriate judicial proceedings is an essential corollary of the absence of any substantive
immunity or defence.” Yearbook of the International Law Commission (1996), Vol. II, Part
Two, p. 27, para. 6.

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246 shi

to the jurisdiction of the forum court but also a substantive exemption of lia-
bility – at least to the extent not contradictory to international law prescribing
individual criminal responsibility.78 In practice, courts and tribunals at times
took the view that immunity ratione materiae is in fact a substantive law mat-
ter.79 Indeed, during the 1963 Vienna Conference on Consular Relations, the
US representative explicitly stated that, when a consul has performed an act
in the exercise of consular functions, he is “not liable as a matter of substan-
tive law”.80 The representative of Italy also indicated that consular immunity
means that “an individual was not personally responsible for acts performed in
the exercise of his functions”.81 This does not mean that the distinction should
be discarded completely – indeed, there is also support that immunity ratione
materiae, being in essence state immunity itself, is merely a procedural bar
which can be waived at any time.82 But these opinions in practice and liter-
ature at least illustrate that the distinction is not as clear-cut in the field of
immunity ratione materiae as it is in cases relating to state immunity,83 immu-
nity ratione personae,84 and the jurisdiction of the icj.85
This distinction is certainly problematic with regard to diplomatic immu-
nity ratione materiae, the scope of which essentially hinges upon the contents
of a substantive treaty provision setting out diplomatic functions. If the offi-
cial nature of a (former) diplomat’s act is called into question, the court must
first consider whether this act is part of the functions under Article 3(1) of the
vcdr.86 Yet Article 3(1), due to its broad terms and non-exhaustive nature, is

78 Akande and Shah, supra note 10, p. 826; Cassese, supra note 5, p. 863; Alebeek, supra note
9, p. 12.
79 Blaškić case, supra note 9, para. 38; Re Rissmann, Judgment of the Court of Cassation of
Italy of 28 February 1972, 71 International Law Reports 577, p. 581; Former Syrian Ambassador
case, supra note 7, pp. 606, 609.
80 Official Records of Consular Conference, supra note 46, pp. 374–375, para. 34 (Blankinship).
81 Ibid., p. 375, para. 36 (Maresca).
82 Y. Dinstein, ‘Diplomatic Immunity from Jurisdiction Ratione Materiae’, 15 International
and Comparative Law Quarterly (1966) pp. 76–89, 80–81; Preliminary report by Kolodkin,
supra note 49, pp. 177, 180.
83 Jurisdictional Immunity case, supra note 61.
84 Arrest Warrant case, supra note 18.
85 Armed Activities case, supra note 56.
86 See, e.g., Propend v. Sing, Judgment of the Court of Appeal of the UK of 17 April 1997, 111
International Law Reports 611, where the English court had to determine whether certain
police function may fall within the scope of diplomatic functions. With regard to consular
immunity, the US government stated in State of Indiana v. Ström that the court must first
decide “whether the alleged conduct falls within the outer perimeter of a recognised
consular function”. M.N. Leich (ed.), Cumulative Digest of United States Practice in
International Law (1981–1988) (US Government Printing Office, Washington, 1993) p. 1141.

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diplomatic immunity 247

per se subject to interpretation – indeed, the scope of diplomatic functions

has been the subject of controversy in many domestic cases concerning the
application of Article 39(2) of the vcdr.87 It is at this stage that the effect of
jus cogens prohibition comes into play – Article 3(1) must not be interpreted
as authorising the violation of jus cogens rules, even if the two states may have
agreed to. As a result, diplomatic immunity ratione materiae can never be
upheld for a violation of jus cogens. In this regard, the existence of Article 3(1)
has in effect bridged the normative gap between immunity from jurisdiction
and jus cogens rules, and in doing so blurred the dividing line between proce-
dural rules and substantive rules.
The minority view, on the other hand, has problems of its own. The argu-
ment that no normative gap exists between the two sets of rules and that jus
cogens should simply override immunity is obviously untenable, as the argu-
ment would necessarily lead to conclusion that even immunity ratione per-
sonae should be set aside in order to give effect to jus cogens, which is clearly
not supported by practice.88 In Obligation to Prosecute or Extradite, the icj
also suggests, if implicitly, that the prohibition of torture and the obligation to
prosecute alleged torturers are separate issues and that only the former has jus
cogens status.89 The problem with the first strand of the minority view, on the
other hand, lies in the fact that there is no rule in customary international law
which defines ‘official/sovereign acts’ for the sake of immunity. This makes it
difficult to argue that jus cogens violations, which are either sovereign acts (in
the sense that they often involve the use of police or military force) or official
acts (in the sense that they are usually carried out with the express or tacit
authorisation of the state), are merely private acts for the sake of immunity.
Indeed, with regard to crimes which are by definition official in nature, it
would be more than artificial to say that an act is official for the sake of convic-
tion but private for the sake of immunity from jurisdiction.
Diplomatic immunity ratione materiae is different. As analysed in section 3
above, this immunity merely protects diplomatic activity but excludes official
acts of the sending state in general. This leaves room for arguing that an act is
official in general international law but unofficial in diplomatic law, and since
jus cogens prohibition cannot possibly co-exist with Article 3(1) of the vcdr,

87 Sing case, supra note 86; See also, P v. P (Diplomatic Immunity: Jurisdiction), Judgment
of the Family Court of the UK of 22 January 1998, [1998] 1 flr 1026, where the parties
disagreed as to the scope of the function of representation.
88 See, Memorandum, supra note 14, p. 89, para. 137, where it is concluded, based on a survey
of practice, that the absolute nature of immunity ratione personae is ‘well settled’.
89 Obligation to Prosecute or Extradite case, supra note 25, paras. 94, 99–104.

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248 shi

diplomatic immunity ratione materiae must be rejected for jus cogens viola-
tions even though some of them are by definition official acts.
It has been argued that using the serious or illegal nature of an act to
determine the preliminary issue of immunity would defeat the very purpose
of immunity, which is to prevent the court from examining the merits of the
case.90 In the words of the icj:

If immunity were to be dependent upon the state actually having com-

mitted a serious violation of international human rights law or the law
of armed conflict, then it would become necessary for the national court
to hold an enquiry into the merits in order to determine whether it had
jurisdiction. If, on the other hand, the mere allegation that the state had
committed such wrongful acts were to be sufficient to deprive the state of
its entitlement to immunity, immunity could, in effect be negated simply
by skillful construction of the claim.91

Likewise, in an employment dispute between domestic workers and their

employer diplomat, the British Employment Appeal Tribunal held that the
seriousness of an act should have no bearing on whether the act is within dip-
lomatic functions.92 For the sitting judge:

The actual rather than claimed seriousness of a case would in any event
be apparent only at the conclusion of that case; and I cannot suppose it
to be the case that the more serious an untried and untested allegation
may be, the more likely it is that a diplomat will be required in law to
answer it and have to lay aside a procedural bar he would otherwise have
relied upon.93

This problem, while undoubtedly exists, should not be overstated. With regard
to immunity ratione materiae, in particular, the determination of immunity
sometimes necessarily touches, if by implication, upon the merits of the case.
But this does not mean that the court has to conclude the case in order to
make a decision on immunity. In depriving the immunity ratione materiae
of Pinochet based on the Torture Convention, the British House of Lords did

90 Costelloe, supra note 63, p. 254.

91 Jurisdictional Immunity case, supra note 61, para. 82.
92 Al-Malki and another v. Reyes and another, Judgment of the Employment Appeal Tribunal
of the UK of 4 October 2013, [2014] icr 135.
93 Ibid., p. 149, para. 44.

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not render a final judgment as to whether Pinochet had actually committed

torture and thus become subject to the universal jurisdiction clause of the
Convention.94 Similarly, the Fourth Circuit of the US Court of Appeals did
not perceive the need to deliver a verdict on merits before it dismissed the
immunity ratione materiae of a former high-ranking official of Somali on the
basis that the immunity is not available for jus cogens violations.95 In the field
of consular immunity, opinions have also been expressed that, in light of the
functional basis of immunity, criminal activity should never be immune from
local jurisdiction.96
Moreover, when the issue of legality forms an indispensable part of the offi-
cial nature of an act, it would be impossible to argue that the substance of a
case has no relevance to the determination of immunity. Article 3(1)(d) of the
vcdr, for instance, provides that the function of ascertaining local conditions
and developments is one which is performed ‘by all lawful means’.97 Therefore,
if a diplomat has performed an information-collecting activity, the legality of
this activity directly determines whether it can be regarded as a diplomatic
function under Article 3(1)(d), and this in turn affects the immunity ratione
materiae of the diplomat under Article 39(2) of the vcdr. In a similar vein,
many consular functions set out under Article 5 of the vccr contain a require-
ment of legality.98 With regard to acts performed in the exercise of these
functions, it would be impossible not to prejudge, at least to some extent, the
legality/illegality of a function while making a decision on consular immunity.
The solution, it is submitted, lies in establishing a proper standard of proof
(or other procedural safeguards) to avoid frivolous suits against foreign diplo-
mats.99 Whereas a mere allegation of jus cogens violation which aims at cir-
cumventing immunity should certainly be dismissed, it remains possible that,
if the allegation is well supported by evidence, jus cogens nature of the rule

94 Pinochet case, supra note 2.

95 Yousuf v. Samantar, Judgment of the Court of Appeals of the US of 2 November 2012, 699
F.3d 763, p. 777.
96 R. Jennings and A. Watts (eds.), Oppenheim’s International Law (Longman, London, 1992)
p. 1145; C.J. Milhaupt, ‘The Scope of Consular Immunity under the Vienna Convention on
Consular Relations: towards a Principled Interpretation’, 88 Columbia Law Review (1988)
p. 861. For a general discussion on whether serious violation of domestic law can be
protected by diplomatic immunity ratione materiae, see, Xinxiang Shi, ‘Official Acts and
Beyond: Towards an Accurate Interpretation of Diplomatic Immunity Ratione Materiae
under the Vienna Convention on Diplomatic Relations’, 18 Chinese Journal of International
Law (2019) pp. 669–694.
97 vcdr, supra note 4, Article 3(1)(d).
98 vccr, supra note 28, Article 5(a), (c), (f), (g), (h), (i), (j), (m).
99 For a similar view, see, Bianchi, supra note 65, pp. 261–262.

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250 shi

violated should be sufficient to deprive diplomatic immunity ratione materiae.

The contents of these procedural safeguards are obviously beyond the scope
of this study.100 For the sake of current discussion, it suffices to say that a for-
mer diplomat does not enjoy diplomatic immunity ratione materiae for crimes
which violate jus cogens rules in international law.

5 Conclusion

In sum, this article presents two arguments to support the conclusion that
diplomatic immunity ratione materiae is not available in cases concern-
ing violation of crimes in international law. In the first place, it is submitted
that, although a ‘legal’ element can be found in certain diplomatic functions
under Article 3(1) of the vcdr but not others, a review of the drafting history
of the vcdr shows that this discrepancy is without significance as states at
the Vienna Conference had consensus that diplomatic functions in general
should be performed in accordance with international law. As a result, crimes
in international law cannot be regarded as a legitimate diplomatic function
under Article 3(1) and thus covered by diplomatic immunity ratione materiae.
Secondly, if the prohibition of a crime has assumed jus cogens character, dip-
lomatic immunity ratione materiae cannot possibly be upheld for the crime
because the recognition of immunity would bring Article 3(1) of the vcdr
into conflict with the jus cogens prohibition. In this respect, the dividing line
between procedural rules of immunity and substantive rules of jus cogens is
blurred by the fact that the scope of diplomatic immunity ratione materiae
directly hinges upon the interpretation of a substantive treaty provision setting
out diplomatic functions. As jus cogens norms would invalidate any conflicting
treaty provision, the only possible solution is that jus cogens violations cannot
be regarded as part of diplomatic functions and thus protected by diplomatic
immunity ratione materiae. Both these two arguments, on the other hand, are
based on the premise that the functions of a diplomat should be construed
within the framework of Article 3(1) of the vcdr. Diplomatic immunity con-
stitutes a concession of part of the territorial state’s sovereignty which is made
in order to facilitate the performance of functions recognised by the territorial
state. Therefore, functions of a diplomat should not be understood as official
functions of the sending state in general.

100 It is hoped that the ilc Special Rapporteur’s further report on Immunity of State Officials
from Foreign Criminal Jurisdiction would provide some guidance in this respect.

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In essence, this article seeks to explore a new path to accommodate the

increasing tension between immunity from jurisdiction and egregious crimes
in international law. The remit of this article is arguably narrow, examining
as it is merely the residual immunity of former diplomats, the majority of
whom do not return to the receiving state to stand on trial. Yet the threat of
a diplomat carrying out serious crimes under the instruction of the send-
ing state on the territory of the receiving state is, as evidenced by numerous
incidents ranging from the 1984 Libyan Embassy shooting incident101 to the
assassination of Kim Jong-nam,102 real and imminent. The same goes true for
subordinate members of a diplomatic mission, who enjoy merely immunity
ratione materiae under Article 37(2) and (3) of the vcdr but who may well
be involved in the official business of the sending state.103 That being said,
the conclusion reached in this article does not purport to resolve all disputes
relating to the relationship between immunity and crimes in international
law which, after all, resulted from the fragmented development of differ-
ent branches of international law. But this article does point to a possible
method of resolving the dilemma, viz. by establishing a conventional regime
which clearly sets out the meaning of ‘official acts’ for the sake of immunity.
That would indeed be a difficult task,104 and one which, in light of the dis-
agreement both within the ilc and at the Sixth Committee regarding the
project of Immunity of State Officials from Foreign Criminal Jurisdiction, is
unlikely to realise in the near future. But against the backdrop of legal posi-
tivism, which is, in the words of Judge Trindade in his dissenting opinion of
Jurisdictional Immunity, “over-attentive to facts and oblivious of values”,105
this seems to be the only viable approach if domestic courts were to take a
leading role in combating impunity for crimes in international law without
unduly disrupting the conduct of inter-state relations.

101 ‘pc Yvonne Fletcher shooting: Libyan man arrested in UK’, BBC News, 20 November 2015,
<www.bbc.com/news/uk-34867860>, visited on 20 July 2020.
102 ‘Kim Jong-nam Killing: Senior N Korea diplomat named as suspect’, BBC News, 22 February
2017, <www.bbc.com/news/world-asia-39048658>, visited on 20 July 2020.
103 vcdr, supra note 4, Article 37(2) and (3).
104 The cool reception received by the Draft Declaration on Rights and Duties of States, which
seeks to subject the sovereignty of states to the ‘supremacy of international law’, has partly
illustrated the difficulty in this regard. Yearbook of the International Law Commission
(1949), Vol. I, Part Two, pp. 286–290.
105 Trindade, supra note 66, para. 293.

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Acknowledgement

This research is supported by the Chinese National Social Science Fund Project
‘Establishing a Theoretic System of Immunity of State Officials from Foreign
Civil and Criminal Jurisdiction’ (Grant No. 20CFX079).

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