State Consent and ‘Official Acts’: Clearing the Muddied Waters of Immunity Ratione Materiae for International Crimes

Abstract

Jurisdictional immunities – and particularly immunity ratione materiae – have stifled the ability of municipal courts to hold individual officials accountable for their actions under international human rights and international criminal law. This has resulted in significant confusion surrounding the status of immunity ratione materiae in cases where international crimes are alleged against State officials, as the very acts that would likely comprise international crimes – ‘official’ State sanctioned acts – are those which are protected by the immunity. Whilst there is a growing body of judicial decisions, national legislation, international guidance and scholarly commentary on this issue, its complexities remain unresolved. This has led to a period of stasis in the area of international law immunities. This article seeks to contribute to the literature by providing greater clarity on these matters and in particular when an official might be held individually accountable for breaches of international criminal law. It is argued that, premised largely upon State consent, immunity ratione materiae should subside in cases of international crimes. It will be contended that State consent is implied from a combination of widespread ratification of the Rome Statute, State contributions made towards the development of international criminal law, and a global shift towards accountability and justice and away from impunity. As such, a change to the definition of ‘official acts’, which attract functional immunity, is proposed to reflect this. While such arguments may appear counter intuitive to pre-existing notions of State responsibility for certain international wrongs, and the inherent State sanctioned nature of international crimes, it will be concluded that States and individuals can and should both be equally responsible for the perpetration of such crimes.

Keywords: jurisdictional immunity, immunity ration material, international human rights law, international criminal law

JEL Classification: K33