Compulsory reading:

Anders Henriksen, International Law, Oxford University Press 2017, 101-125.

OR
Philippa Webb, “International Law and Restraints on the Exercise of Jurisdiction by National Courts of States”, in Evans, M.
(ed.) International Law, OUP, 3rd ed., 2014, pp. 316-348.
+
Chanaka Wickremansinghe, “Immunities Enjoyed by Officials of State and International Organizations”, in Evans, M. (ed.)
International Law, OUP, 3rd ed., 2014, pp. 349-381.
 State immunity

Immunity from the

Immunity from the enforcement measures
jurisdiction of municipal (against state property in the
courts = immunity form forum state) = immunity
adjudicative jurisdiction from enforcement
jurisdiction
(yargı bağışıklığı)
(icra bağışıklığı)

- Sovereignty of states è legislative, judicial, administrative powers

(e.g. TR Const art. 6 + 7, 8, 9)
- Sovereign equality of states
Par in parem non habet imperium = equals have no sovereignty over one another.
Par in parem non habet jurisdictionem= equals have no jurisdiction over one another.
• Forum state= the State where the lawsuit is brought before the domestic courts
• State immunity is a PROCEDURAL BAR to national jurisdiction!
Sub-headings for State immunity
1. Immunity of state and its property (State can’t be criminally liable, immunity from civil claims)
2. Immunity of state officials from civil and criminal jurisdictions
3. Rights and privileges (and immunities) of the envoys of a2foreign state (diplomatic and consular immunity)
The Parlement Belge, UK Appeals
Court, 1880: absolute immunity!
Underhill v. Hernandez, US Supreme
Court, 1897, at 195: “Every sovereign
State is bound to respect the
independence of every other sovereign
State, and the courts of one country
cannot sit in judgment on the acts of the
government of another done within its
own territory.”
“In the course of the 19th century states
appeared as commercial entrepreneurs on a
considerable scale, creating monopolies in
particular trades, and operating railway,
shipping, and postal services. The WW I
increased such activities, and the appearance
of socialist states has given greater prominence
to the public sector in national economies.
Moreover, countries such as India have found
it necessary to have a public sector as a basis
for a planned development of a modern
economy. After earlier doctrinal
developments, Belgian and Italian courts
responded to the extension of state activity by
developing a distinction between acts of
government, jure imperii, and acts of a
commercial nature, jure gestionis, denying
immunity from jurisdiction in the latter
case.” (Brownlie, p. 328)
Esp. following 1917 Russian Revolution, all
commercial activities were conducted as a part
of state’s activities by state companies, which
benefitted from the absolute immunity of
states.
(Today, China and some other states still
acta jure imperii (official acts,
governmental acts, acts of sovereign
authority) (egemenlik tasarrufu):
e.g. expropriating property, testing
nuclear weapons
acta jure gestionis (commercial acts,
acts of a private law character)
State immunity
(temşiyet tasarrufu): acts which can
be performed equally well by states
or by private individuals, such as
entering into contracts for the
purchase of wheat, purchase of
army boots for soldiers
Relative è
Absolute (qualified or A. Object (purpose) of the
immunity restrictive) transaction (subjective test): if
immunity the act is done for public good,
then it’s a governmental act
B. Nature of the transaction
1972 European Convention on State (objective test): if the act is by
Immunity (entered into force 11 Jun its nature a governmental act,
regardless of its purpose
1976; 8 parties as of 11 JULY 2021)
(GENERALLY ACCEPTED
APPROACH) (e.g. 1976 US
2004 UN Convention on the Foreign Sovereign Immunities
Act)
Jurisdictional Immunities of States and
Their Property (not yet in force; 22 C. Contextual approach: takes
parties as of 11 JULY 2021) è only for into account both the object
and nature of the transaction
civil jurisdictions!!!
(2004 UN Convention on
Jurisdictional Immunities of
3 States and Their Property
article 2(2))
2004 UN Convention on Jurisdictional Immunities of States and Their Property

Article 2 Use of terms

1. For the purposes of the present Convention:
(a) “court” means any organ of a State, however named, entitled to exercise judicial functions;
(b) “State” means:
(i) the State and its various organs of government;
(ii) constituent units of a federal State or political subdivisions of the State, which are entitled to
perform acts in the exercise of sovereign authority, and are acting in that capacity;
(iii) agencies or instrumentalities of the State or other entities, to the extent that they are entitled to
perform and are actually performing acts in the exercise of sovereign authority of the State;
(iv) representatives of the State acting in that capacity;
(c) “commercial transaction” means:
(i) any commercial contract or transaction for the sale of goods or supply of services;
(ii) any contract for a loan or other transaction of a financial nature, including any obligation of
guarantee or of indemnity in respect of any such loan or transaction;
(iii) any other contract or transaction of a commercial, industrial, trading or professional nature, but not
including a contract of employment of persons.

2. In determining whether a contract or transaction is a “commercial transaction” under paragraph 1

(c), reference should be made primarily to the nature of the contract or transaction, but its purpose
should also be taken into account if the parties to the contract or transaction have so agreed, or if, in the
practice of the State of the forum, that purpose is relevant to determining the non-commercial character
of the contract or transaction.

3. The provisions of paragraphs 1 and 2 regarding the use of terms in the present Convention are
without prejudice to the use of those terms or to the 4meanings which may be given to them in other
international instruments or in the internal law of any State.
 1972 European Convention on State Immunity

Cases of no state immunity (but, there may be exceptions):

Art. 5: employment contracts for the work performed on the territory of the forum state
Art. 6: relationships concerning partnership with one or more private persons in a company
Art. 7: industrial, commercial or financial activities
Art. 8: proceedings relating
a. to a patent, industrial design, trade-mark, service mark or other similar right which, in the State of
the forum, has been applied for, registered or deposited or is otherwise protected, and in respect of
which the State is the applicant or owner;
b. to an alleged infringement by it, in the territory of the State of the forum, of such a right belonging
to a third person and protected in that State;
c. to an alleged infringement by it, in the territory of the State of the forum, of copyright belonging to a
third person and protected in that State;
d. to the right to use a trade name in the State of the forum
Art. 9: proceedings relating to
a. its rights or interests in, or its use or possession of, immovable property; or
b. its obligations arising out of its rights or interests in, or use or possession of, immovable property
and the property is situated in the territory of the State of the forum.
Art. 10: proceedings relate to a right in movable or immovable property arising by way of succession,
gift or bona vacantia (unowned property).
Art. 11: proceedings which relate to redress for injury to the person or damage to tangible (material)
property, if the facts which occasioned the injury or damage occurred in the territory of the forum State,
and if the author of the injury or damage was present in that territory at the time when those facts
occurred.
5
Klabbers, 102: “Part of the problem is that the realiztion has dawned that there is a category
of acts that defy categorization as either ‘official’ or ‘private’. Think, for instance, of human
rights violations: these are rarely done for private reasons, and can thus not be considered
acta jure gestionis. Yet, it would be awkward to accept human rights violations as official
government business, to which immunity applies. While there is case-law to this effect from
domestic courts, in relation to such acts as torture, and even the Holocaust, it is difficult to
think of such acts as being acta jure imperii and thus entitled to sovereign respect.

In a 2012 decision, the ICJ nonetheless –and rather controversially- upheld the immunity of
a state for gross human rights violations. After Italy’s Court of Cassation had held, in the
2004 Ferrini case, that state immunity could not apply when jus cogens was violated,
Germany (the state concerned) complained to the ICJ that denying immunity violated
international law and the Court agreed. It argued that substantive norms (such as, in casu)
the prohibition of forced labour), even if they were recognized as jus cogens, operated
differently from procedural devices, such as the rules on state immunity. In other words,
accorind to the Court there was no conflict between jus cogens and rules on state immunity,
and thus no sense in which either could be considered to be superior: ‘The two determine
whether a national court has jurisdiction, but that question is different from the question
concerning the lawfulness of the ctivities at issue.”

* Ferrini v. Federal Republic of Germany, Court of Cassation, Italy, judgment of 11 March 2004, in 128
ILC Rep., 658.
* Jurisdictional Immunities of the State (Germany v Italy; Greece intervening), ICJ judgment of 3
February 2012, nyr, para. 93. 6
Jurisdictional Immunities of the State (Germany v Italy; Greece intervening), ICJ, judgment
of 3 February 2012
“91. The Court concludes that, under customary intl law as it presently stands, a State is not deprived of immunity
by reason of the fact that it is accused of serious violations of intl human rights law or the international law of
armed conflict. In reaching that conclusion, the Court must emphasize that it is addressing only the immunity of the
State itself from the jurisdiction of the courts of other States; the question of whether, and if so to what extent,
immunity might apply in criminal proceedings against an official of the State is not in issue in the present case.
92. The Court now turns to the second strand in Italy’s argument, which emphasizes the jus cogens status of the rules
which were violated by Germany during the period 1943-1945. This strand of the argument rests on the premise that
there is a conflict between jus cogens rules forming part of the law of armed conflict and according immunity to
Germany. Since jus cogens rules always prevail over any inconsistent rule of international law, whether contained in
a treaty or in customary international law, so the argument runs, and since the rule which accords one State
immunity before the courts of another does not have the status of jus cogens, the rule of immunity must give way.
93. This argument therefore depends upon the existence of a conflict between a rule, or rules, of jus cogens, and
the rule of customary law which requires one State to accord immunity to another. In the opinion of the Court,
however, no such conflict exists. Assuming for this purpose that the rules of the law of armed conflict which prohibit
the murder of civilians in occupied territory, the deportation of civilian inhabitants to slave labour and the
deportation of prisoners of war to slave labour are rules of jus cogens, there is no conflict between those rules and
the rules on State immunity. The two sets of rules address different matters. The rules of State immunity are
procedural in character and are confined to determining whether or not the courts of one State may exercise
jurisdiction in respect of another State. They do not bear upon the question whether or not the conduct in respect of
which the proceedings are brought was lawful or unlawful. That is why the application of the contemporary law
of State immunity to proceedings concerning events which occurred in1943-1945 does not infringe the principle that
law should not be applied retrospectively to determine matters of legality and responsibility... For the same reason,
recognizing the immunity of a foreign State in accordance with customary international law does not amount to
recognizing as lawful a situation created by the breach of a jus cogens rule, or rendering aid and assistance in
maintaining that situation, and so cannot contravene the 7 principle in Article 41 of the ILC’s Articles on State
Responsibility. ”
“Notwithstanding the special character of the prohibition of torture in international law, 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.” (Al-Adsani v. UK[GC], app. No. 35763/97, judgment of 21 November 2001,
ECHR Reports 2001-XI, p. 101, para. 61 ; ILR, Vol. 123, p. 24.)

“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.” (App. No.
59021/00, decision of 12 December 2002, ECHR Reports 2002-X, p. 417; ILR, Vol. 129, p.
537.)

ATTENTION!!! Measures of Enforcement:

Even when there is no immunity, that does not mean that the claimant will be able to enforce a
judgment against the property of the defendant State in the forum state. Consent by a State to the
exercise of jurisdiction does not imply consent to measures of constraint (enforcement). Therefore before
embarking on any proceedings, a claimant’s lawyers will have to assess whether any judgment could be
enforced effectively, both in terms of the law of the forum State and whether at the end of the process
there is likely to be enough property available on which the judgment could be executed.” (Aust, p.
157)

8
 TURKISH SYSTEM

1) “Kesin bağ ışıklık” dönemi

2) 1982 t. 2675 s. Milletlerararsı Özel Hukuk ve Usul Hukuku hk. Kanun (MÖHUK) m. 33:
“Yabancı devlete, özel hukuk ilişkilerinden doğ an hukuki uyuşmazlıklarda yargı muafiyeti
tanınmaz. Bu gibi uyuşmazlıklarda yabancı devletin diplomatik temsilciliklerine tebligat
yapılabilir”

3) 2007 t. 5718 s. “yeni” MÖHUK’ta da aynı hüküm korunmuştur. (m. 49 )

9
YARGITAY: Konunun niteliğ i gereğ i işlem/eylem özel hukuk ilişkisinden doğ an bir
çekişme değ ilse yargı bağ ışıklığ ı vardır.

Örn. TC Milli Savunma Bakanlığ ı’na ait MELTEM hücumbotu ile SSCB’ye ait XACAH (Hasan) savaş
gemisi kazası sonucu yaşamını yitiren Türk denizcilerin mirasçılarının destekten yoksun kalma
tazminatı istemiyle SSCB’ye karşı açtığ ı davada RED:

“Devletlerin yargı muafiyeti, yani bir devletin diğer bir devletin mahkemelerinde yargılanamayacağı
devletlerin eşitliğine dayandırılmış bir prensiptir. (...) Harp gemilerinin, bayrağını taşıdığı devletin
egemenlik simgesi olduğu açıktır. Bu bakımdan harp gemileri de yargı bağışıklığından yararlanırlar.
(...) Gerçekten 2675 sayılı Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun’un 33/1
maddesi yabancı devlete, Özel Hukuk ilişkilerinden doğan hukuki uyuşmazlıklarda yargı muafiyeti
tanınmaz hükmünü getirmiştir. Bu maddede anılan hukuk ilişkilerinden amaç yabancı bir devletin
egemenlik hakkına dayanarak yaptığı tasarrufların dışında kalan, özel bir kişi gibi hususi hukuk
faaliyetinde bulunması, ticari ilişkilere girmesi sonucu doğan uyuşmazlıklardır. Yoksa yabancı bir
devletin egemenlik hakkına dayanılarak yaptığı tasarrufları bu maddenin kapsamı içinde mütalaa
etmek mümkün bulunmamaktadır.”

I%ran-Irak Savaşı sırasında Irak savaş uçaklarınca bombalanan tankerde oluşan maddi zarar ve üç
denizcinin ölümünden doğ an maddi ve manevi ödence istemi ile Irak’a karşı açılan davada da RED
(1986):
“Dava konusu olayda davalı devletin, savaş uçaklarının saldırısı ile oluşan haksız fiilin, özel
hukuk ilişkisi sayılıp sayılamayacağının tespiti gerekir. Maddi olayın niteliğine göre, harp halindeki
devletlerden birinin savaş araçlarının üçüncü bir devletin vatandaşına verdiği zararın özel hukuk
10
ilişkisinden doğmadığı, bir hakimiyet tasarrufu bulunduğu açıktır.”
Özel hukuk işlemlerinden doğ an uyuşmazlıklarda KABUL:

“Davacı, iki dairesini ABD Konsolosluğu’na kiraladığını, ödenmeyen telefon faturaları ile hor
kullanma karşılığı 3.029.280 liranın ödetilmesini istemiştir.
Davalı, Milletlerarası Hukuk ve Viyana Anlaşması’na göre, bir devletin başka bir devlet tarafından
yargılanmayacağını öne sürerek davalıya husumet düşmeyeceğini savunmuştur.
Mahkemece, bir devletin, bir başka devlet tarafından yargılanmıyacağı gerekçesiyle davanın reddine
karar verilmiş, hüküm davacı tarafından temyiz edilmiştir.
İddia ve savunmadan anlaşıldığı üzere kira sözleşmesi davacı ile ABD Konsolosluğu arasında
kurulmuştur. Konsolosluk, ABD’yi temsil ettiğinden olayda kira ilişkisi davacı ile ABD arasındadır.
23.11.1982 tarihinde yürürlüğe giren 2675 sayılı Milletlerarası Özel Hukuk ve Usul Hukuku
Hakkında Kanun’un 33. maddesi gereğince, yabancı devletlere özel hukuk ilişkilerinden doğan
hukuki uyuşmazlıklarda yargı muafiyeti tanınmaz. Aynı maddenin 2. fıkrasında da, bu gibi
uyuşmazlıklarda yabancı devletin diplomatik temsilcisine tebligat yapılabileceği öngörülmüştür.
Olayda dayanılan kira sözleşmesi hususi hukuk işlemidir. Davacı bu sözleşmeye aykırı davranıştan
doğan hor kullanma tazminatı ve telefon kullanmadan doğan alacağını istemiştir. Olayın taraflar
arasındaki niteliğine göre, davalı devletin olayda yargı muafiyeti bulunmamaktadır. O halde iddia
ve savunma çerçevesinde işin esasına girilerek bir karar verilmesi gerekirken yazılı gerekçe ile davanın
reddi, usul ve yasaya aykırıdır ve bozma nedenidir.”

11
2006 tarihli karar: Vizesi olduğ u halde ABD’ye girişi engellenen Gerger’in ABD alyhine
TR’de açtığ ı davada ABD’nin 1 dolarlık sembolik manevi tazminata mahkum edilmesi(!)

Oysa ki, vize vermek, vize iptal etmek, bir kişinin ülkeye girişine izin vermek / reddetmek
è acta jure imperii

* Yabancı devletin diplomatik temsiliciliğ ine “tebligat” yapılabileceğ ine ilişkin tümce de
tartışmalı. Uygulamada artık yalnızca diplomatik yoldan Dışişleri Bakanlığ ı aracılığ ıyla
“tebligat” yapılıyor.

12
 Historically, the ruler was equated with the state, and to this day the
head of a foreign state possesses complete immunity, even for acts
done by him/her in a private capacity. (Akehurst’s, p. 119) The law
governing the privileges and immunities of Heads of States and other
senior government officials remains largely uncodified, and therefore
they enjoy immunity only by virtue of customary international law.
(Wickremasinghe -in Evans-, p. 381)
Dapo Akande, EJIL, 2012: State immunity includes the immunity of
its all officials for acts performed in the course of their functions. This
is immunity ratione materiae (functional immunity). Head of State
immunity is immunity ratione personae (personal immunity) but this
variant of immunity is also conferred for the benefit of the State rather
than that of the individual. In the Arrest Warrant Case, the ICJ stated
with respect to the immunity ratione personae of the Foreign Minister:
Louis XIV “In customary international law, the immunities accorded to Ministers for
Foreign Affairs are not granted for their personal benefit, but to ensure the
effective performance of their functions on behalf of their respective States.”
(para. 53)
Heads of States lose their status immunity (immunity ratione personae)
after they leave office. They can also be prosecuted domestically. ….
(Lutz & Reiger, eds, 2009): “Since 1990, 65 former heads of state or
government have been legitimately prosecuted for serious human rights or
financial crimes. Many of these leaders were brought to trial in reasonably free
14
and fair judicial processes, and some served time in prison as a result”
 • Functional immunity for the official acts
Immunity of State officials
• Not limited to the duration of the office.
ratione materiae

• Personal (status) immunity for certain categories of State officials by

virtue of their office. (Holders of high-ranking offices such as heads
of states, heads of government and ministers of foreign affairs)

Immunity • It often covers both the official and the private acts of such office-
holders,
• Limited with the duration of their office.
ratione personae • complete personal inviolability incl. freedom from arrest and/or
detention;
• absolute immunity from criminal jurisdiction
• immunity from civil jurisdiction except for purely private actions

a) Representative theory: diplomats, as representatives of the sending States should enjoy the same immunities as the State itself.
b) Functional necessity theory: international cooperation between States, from which political, economic, social, and cultural benefits
flow, is entirely dependent on effective processes of communication. (understanding of the modern law of diplomacy)

“The ‘representative basis’, although accepted as the basis of diplomatic immunities in previous centuries, is nowadays rather
doubtful; it would suggest that diplomats, like states, are not immune from suit in respect of the commercial activities of states, whereas
in fact diplomats are immune from suit in respect of such activities. The modern view is to treat immunities as having a ‘functional
basis’ —that is, as being necessary ‘to ensure the efficient performance of the functions of diplomatic missions’.” (Akehurst’s, p. 124)

15
Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment, ICJ
Rep. 2002, para. 61: (no exception to the immunity ratione personae of a serving MoFA)
Facts: Belgium issued and circulated internationally, an arrest warrant against the serving Foreign Minister of Congo, based
on universal jurisdiction. Congo asked the ICJ to decide that Belgium violated international law because it did not respect the
inviolability and immunities of the foreign minister from criminal process before Belgian courts. On 11 April 2000, a Belgian
Magistrate issued an international arrest warrant against Mr. Yerodia. At the time, Yerodia was the Foreign Minister of the
Congo. The Court issued the warrant based on universal jurisdiction. It accused Yerodia of inciting racial hatred. These
speeches, allegedly, incited the population to attack Tutsi residents in Rwanda, which resulted in many deaths. The warrant
alleged that Yerodia committed grave breaches of the Geneva Conventions of 1949 and its Additional Protocols and crimes
against humanity. Belgium sent the arrest warrant to Interpol and circulated it to all States, including to the Congo. The
warrant asked States to arrest, detain, and extradite Yerodia to Belgium. After Belgium issued the warrant, in November 2000,
Yerodia became the Education Minister. At the time of the ICJ’s judgement, he did not hold a Ministerial post in Congo.

“Accordingly, the immunities enjoyed under international law by an incumbent or former Minister for Foreign Affairs do
not represent a bar to criminal prosecution in certain circumstances.
First, such persons enjoy no criminal immunity under international law in their own countries, and may thus be tried by
those countries' courts in accordance with the relevant rules of domestic law.
Secondly, they will cease to enjoy immunity from foreign jurisdiction if the State which they represent or have represented
decides to waive that immunity.
Thirdly, after a person ceases to hold the office of Minister for Foreign Affairs, he or she will no longer enjoy all of the
immunities accorded by international law in other States. Provided that it has jurisdiction under international law, a court
of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or
subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private
capacity.
Fourthly, an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain
international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the
former Yugoslavia, and the International Criminal Tribunal for Rwanda, established pursuant to Security Council
resolutions under Chapter VII of the United Nations Charter, and the future International Criminal Court created by the
1998 Rome Convention. The latter's Statute expressly provides, in Article 27, paragraph 2, that "[i]mmunities or special
procedural rules which may attach to the official capacity of16a person, whether under national or international law, shall
not bar the Court from exercising its jurisdiction over such a person.”
Wickremasinghe in Evans, p. 395: ”Though the Court’s findings are strictly confined to the immunities enjoyed by
Foreign Ministers, it seems clear that similar immunities apply, perhaps a fortiori, to Heads of Government. How far
such immunities can also be extended to other Ministers or officials may depend on analogous reasoning, based on
the involvement of such persons in international relations. Thus, for example in the UK, decisions at first instance
have recognized that such immunities extend to a visiting Defence Minister, and to a visiting Minister of Commerce
(whose portfolio included responsibility for international trade). Nevertheless, it is not yet clear where the lines should
properly be drawn, and the task is not made easier by the different ways in which different governments organize
themselves internally. In any event it may be that other ministers or senior officials enjoy immunities when an official
visits as members of special missions.

Wickremasinghe in Evans, p. 401-402: Immunities ratione personae (personal immunity) ends after leaving the
office: “Thus it seems that based on general principle the immunity ratione personae of certain incumbent high State
officials, including Heads of State, Heads of Government, Foreign Ministers, certain other senior Ministers,
diplomatic agents, and also the members of high-level special missions, are, in the absence of waiver by the sending
State, an absolute bar to the criminal jurisdiction of the national courts for the duration of their office/mission, even
in relation to these serious international crimes. The reason for this is that the functions which these officials serve in
maintaining international relations are such that they should not be endangered by the subjection of such officials
(whilst they are in office) to the criminal jurisdiction of another State. However, in Arrest Warrant the ICJ also
stressed that immunity was not the same as impunity. In this respect it noted four circumstances in which the
availability of immunity ratione personae of incumbent office-holders would not prevent their prosecution:

(i) Where the office-holder in question is prosecuted by the courts of his own State;
(ii)Where immunity is waived by the office-holder’s State;
(iii)When the office-holder leaves office, he may be prosecuted by the court of another State (provided that in other
respects it has jurisdiction in accordance with international law) in respect of his acts prior to or subsequent to his
period of office, or for his private acts during his period of office; and
(iv)By certain international criminal courts, provided that they have jurisdiction.
The first two of these circumstances are relatively uncontroversial and are well-established in international law, and
need little further comment here. However the latter two circumstances form the basis of the consideration of the
following subsections….” 17
Immunities ratione materiae (functional immunity) not for international crimes (Evans 402-404):

Augusto Pinochet case: “The Court was faced on the one hand with allegations of torture, which by definition
requires official involvement, and on the other hand with Pinochet’s claim to immunity ratione materiaeè conclusion
of the UK House of Lords: No immunity with regard to criminal proceedings!” (but, immunity ratione materiae from
civil jurisdiction continues)
Former Chilean dictator Pinochet was accused by a Spanish judge of torture, a crime under international law which
can be prosecuted in any country under universal jurisdiction. The Spanish judge faxed an INTERPOL arrest warrant
to London and Pinochet was arrested later that evening in hospital. Pinochet's lawyers argued that as Pinochet was
head of state at the time of the alleged crimes, he was immune from the jurisdiction of British courts. The Divisional
Court ruled Pinochet had state immunity, but the House of Lords decided that he had no immunity under the Torture
Convention, at least once he left the office:

Regina v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (no. 1), 1998:
“[T]he development of international law since the Second World War justifies the conclusion that by the time of the
1973 coup d’état, and certainly ever since, international law condemned genocide, torture, hostage taking and crimes
against humanity (during an armed conflict or in peace time) as international crimes deserving of punishment. Given
this state of international law, it seems to me difficult to maintain that the commission of such high crimes may
amount to acts performed in the exercise of the functions of a Head of State.”

Regina v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (no. 2), 1998:
Pinochet had state immunity, the previous judgment should be set aside.

Regina v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (no. 3), 1998,
reproduced in 119 ILR, 135: It was confirmed that Pinochet was not entitled to state immunity but that acts
committed outside of British territories could only be prosecuted under national law if committed after the passing of
section 134 of the Criminal Justice Act 1988.: “non-applicability of functional immunity re torture was based specifically on CAT,
not a customary law limitation/exception. There may have been a trend,
18 signaled by Pinochet and a few other cases, but no uniform and
widespread state practice.” è ILC DRAFT ARTICLES: functional immunity doesn’t apply to international crimes (not customary)
Statute of the ICTR Art. 6(2) and Statute of the ICTY Art. 7(2): Individual Criminal Responsibility:

“The official position of any accused person, whether as Head of state or government or as a responsible
government official, shall not relieve such person of criminal responsibility nor mitigate punishment.”

Statute of the ICC Art. 27: Irrelevance of official capacity

1.This Statute shall apply equally to all persons without any distinction based on official capacity. In
particular, official capacity as a Head of State or Government, a member of a Government or parliament, an
elected representative or a government official shall in no case exempt a person from criminal responsibility
under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.
2. Immunities or special procedural rules which may attach to the official capacity of a person, whether
under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

è “The fact the the Statutes of the ICTY and the ICTR explicitly lifted the immunity of political leaders can
be seen as an affirmation that without such provision, the customary rule is still that immunity applies.”
Klabbers, p. 103.

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Immunities of other state officials:

Immunity ratione materiae for their official acts from at least the civil jurisdiction of the
courts of other states.

Also, ratione materiae for criminal jurisdictions, except MAY BE for international crimes.

United Nations Convention on Jurisdictional Immunities of States and Their Property Art.
2(1)(b): “State” means:
(i) the State and its various organs of government;
(ii) constituent units of a federal State or political subdivisions of the State, which are
entitled to perform acts in the exercise of sovereign authority, and are acting in that
capacity;
(iii) agencies or instrumentalities of the State or other entities, to the extent that they
are entitled to perform and are actually performing acts in the exercise of sovereign
authority of the State;
(iv) representatives of the State acting in that capacity

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Wickremasinghe, in Evans p. 398: Officials of IOs:

“Both diplomatic immunities and the immunities of IOs arise from considerations of functional
necessity, and as we shall see the former have inspired the latter in some respects. However, it does
not follow that they should be identical in extent. Jenks suggested that three major differences
between diplomatic immunities and those of international officials (Jenks, 1961, p. 32).
First, is it unusual for a diplomatic agent to have the nationality of the receiving State and in such
situations as we have seen the scope of immunities he enjoys can be restricted by the receiving state
to his official activities only. On the other hand for officials of IOs it may be especially important
that they enjoy immunities against their own States of nationality.
Secondly, whereas a diplomatic agent may be immune from legal process in the receiving State, he
will remain subject to legal process in the sending State. In relation to officials of IOs there is no
sending State as such, and thus appropriate procedures may have to be adopted, either through some
international disciplinary procedure established by the organization, or through waiver of immunity.
Thirdly, the principle of reciprocity, which plays such an important role in the maintenance of
diplomatic law between States, cannot operate in the same way in respect of IOs. Thus, Jenks rejects
a simple assimilation of the immunities of IOs with diplomatic immunities, in favour of looking at
the former on their own merits as based upon their particular functional needs.

1946 Convention on the Privileges and Immunities of the UN (Turkey’s accession on 22 Aug 1950):
+ UN Charter art. 105

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