CYIL 2012

PETRA BAUMRUK CYIL 3 ȍ2012Ȏ The role of consuls is to protect administrative and technical interests and any trade relations between the sending and receiving state. The emphasis of their role is therefore on economic or commercial matters rather than political matters (which is the main interest of diplomats). 14 The two most important sources governing the field of diplomatic and consular relations are the 1961 Vienna Convention on Diplomatic Relations 15 and the 1963 Vienna Convention on Consular Relations. 16 Immunities accorded to heads of state and other high-ranking state officials, such as heads of government, is an area of international law on immunities which is less defined and developed than the area of diplomatic immunity. There is no codifying convention governing this field. Nevertheless, by analysing case law on immunities accorded to high-ranking state officials in respect of alleged international crimes, one can perceive some common features and guiding rules in this respect. Hence, the main question to be answered by the author is “what is the current practice on immunities accorded to high-ranking state officials before national and international courts”? 1.2.1 Functional and Personal Immunity Immunities are further divided into “functional immunity” and “personal immunity” and a fundamental distinction must be made between those two concepts. Functional immunity (or ratione materiae ) evolved from state immunity and applies to all state agents discharging their official duties. 17 This principle stipulates that a person performing conducts on behalf of a sovereign state may not be held responsible for any offence of international law he/she may have committed while acting in an official function. This is so even after the person ceases to perform acts of state. In contrast, personal immunities terminate with the cession of the given act or mission on behalf of the state. 18 Functional immunity is closely related to the principle that a state may not sit in judgment of the actions of another state, since they are both sovereign and equal. 19 All who carry out state functions are entitled to functional immunity, so there is a comparatively large number of officials who have been appointed with functional immunity towards other states. It does not provide complete protection of the state representative; it only covers conduct that 14 Alina Kaczorowska: Public International Law , p. 407; Malcolm D. Evans: International Law, p. 404. 15 Done at Vienna, Austria, on 18 April 1961. Entered into force on 24 March 1964. The official website of the United Nations: www.un.org. 16 Done at Vienna, Austria, on 24 April 1963. Entered into force on 19 March 1967. The official website of the United Nations: www.un.org. 17 Antonio Cassese: International Criminal Law , p. 302; Pétur D. Leifsson: “Nokkrar hugleiðingar um þróun varðandi alþjóðaglæpi, allsherjarlögsögu og úrlendisrétt frá sjónarhóli þjóðaréttar”, p. 399. 18 Antonio Cassese: “When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case”, p. 863; Antonio Cassese: International Law, p. 111, 115-116 and 118. 19 The doctrine of functional immunity and state immunity are closely intertwined. This statement was for example acknowledged by the majority of the Law Lords in the Pinochet case. See Robert Cryer, a.o.: An Introduction to International Criminal Law and Procedure, p. 533; Andrea Bianchi: “Immunity versus Human Rights: The Pinochet Case”, p. 262.

176