1 This provision, which was introduced into the Rules of the Court in 1978, reads as follows: ‘When the Applicant State proposes to found the jurisdiction of the Court upon a consent thereto yet to be given or manifested by the State against which such application is made, the application shall be transmitted to that State. It shall not however be entered in the General List, nor any action be taken in the proceedings, unless and until the State against which such application is made consents to the Court's jurisdiction for the purposes of the case.’ As recalled by the Court at para. 63 of its judgment in the present case (see infra note 2), it was the first time it fell to the Court to decide on the merits of a dispute brought to it by an application based on that provision.
2 Case concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment of 4 June 2008 (hereinafter Judgment), available at www.icj-cij.org.
9 Judgment, supra note 2, para. 159.
10 Ibid., para. 184, where the Court recalled that, according to Art. 113-2 of the French Code of Criminal Procedure, ‘“[a]ny person implicated by a witness or against whom there is evidence making it seem probable that he could have participated, as the perpetrator or accomplice, in committing the offence of which the investigating judge is seised” . . . may be summoned as a témoin assisté. The situation envisaged here by French law is one where suspicions exist regarding the person in question, without these being considered sufficient grounds to proceed with a “mise en examen”.’
11 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002,  ICJ Rep. (hereinafter Arrest Warrant), at 22, para. 54.
12 Judgment, supra note 2, para. 170.
13 As stated in a recent study for the International Law Commission prepared by the UN Secretariat, Immunity of State Officials from Foreign Criminal Jurisdiction, Memorandum by the Secretariat, UN Doc. A/CN.4/596 (2008) (hereinafter Immunity of State Officials), para. 99. See also R. A. Kolodkin, Preliminary Report on Immunity of State Officials from Foreign Criminal Jurisdiction, UN Doc. A/CN.4/601 (2008), para. 110. For an overview of the subject see the work undertaken by the Institut de droit international: ‘Les immunités de juridiction et d'exécution du chef d'Etat et de gouvernement en droit international/Immunities from Jurisdiction and Execution of Heads of State and of Government in International Law’, J. Verhoeven (Rapporteur), (2000–1) 69 Annuaire de l'Institut de droit international 441.
14 See the numerous bibliographical references cited in Immunity of State Officials, supra note 13, n. 240. Attention should also be drawn to the resolution adopted by the Institut de droit international at its Vancouver session in 2001, on ‘Immunities from Jurisdiction and Execution of Heads of State and of Government in International Law’. Art. 2 of the resolution recognizes the absolute immunity from foreign criminal jurisdiction of the incumbent head of state: ‘In criminal matters, the Head of State shall enjoy immunity from jurisdiction before the Courts of a foreign State for any crime he or she may have committed, regardless of its gravity.’
15 See, in particular, the following cases: Federal Supreme Court of the Federal Republic of Germany, Re Honecker, Case No. 2 ARs 252/84, Judgment of 14 December 1984, 80 ILR 365, at 365–6; France, Cour de cassation, Affaire Kadhafi, Judgment No. 1414 of 13 March 2001, 125 ILR 508, at 508–10 (the original text in French is reproduced in (2001) 105 RGDIP 474); United Kingdom, Senior District Judge at Bow Street, Tatchell v. Mugabe, Judgment of 14 January 2004, (2004) 53 ICLQ 769; Spain, Audiencia Nacional, Acto del Juzgado Central de Instrucción No. 4, 6 February 2008, Fourth paragraph, No. 1, pp. 151–7 (where the Audiencia Nacional found that Spanish authorities lacked jurisdiction to prosecute Mr Kagame, the incumbent head of state of Rwanda, because of the jurisdictional limitations arising from the immunities recognized under international law). See also House of Lords, Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet Ugarte, 24 March 1999, (1999) 38 ILR 581, in particular the position adopted by Lord Hope of Craighead (at 624), Lord Hutton (at 637–8), Lord Saville of Newdigate (at 642), and Lord Millet (at 651), who found that, as had also been recognized by the prosecution (at 637), immunity would have had to be granted if Pinochet had still been an incumbent head of state at the time of the prosecution.
16 See Judgment, supra note 2, para. 166, where the Court noted that France had recalled that it ‘fully recognize[d], without restriction, the absolute nature of the immunity from jurisdiction and, even more so, from enforcement that is enjoyed by foreign Heads of State’, while arguing that the summoning of a foreign head of state as a witness was in no sense an attack on him. See also Public Sitting, President Higgins presiding, in the case concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), 25 January 2008, CR 2008/5 (original), at 24–7 (Pellet, on behalf of France).
17 See on this point Immunity of State Officials, supra note 13, paras. 137–140.
18 See, for a recent analysis of this issue, ibid., para. 110.
19 As suggested in ibid., para. 89, n. 211, the expression ‘immunity ratione materiae’ would seem to be preferable to the expression ‘functional immunity’ if consideration is given to the fact that, under contemporary international law, the main rationale of both immunity ratione personae and immunity ratione materiae appears to be the need to preserve the ability of the officials concerned to perform their functions effectively as organs of the state.
21 See Judgment, supra note 2, at para. 194: ‘The Court notes first that there are no grounds in international law upon which it could be said that the officials concerned were entitled to personal immunities, not being diplomats within the meaning of the Vienna Convention on Diplomatic Relations of 1961, and the Convention on Special Missions of 1969 not being applicable in this case.’
22 1969 Convention on Special Missions, 1400 UNTS 231. Among other state officials of a lower rank who may enjoy immunity ratione personae under specific conventional regimes are the head of mission and the members of the diplomatic mission to an international organization of a universal character, under Art. 30 of the 1975 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character, Official Records of the United Nations Conference on the Representation of States in their Relations with International Organizations, Vol. 2 (UN publication, Sales No. E.75.V.112). Not yet in force.
23 Arrest Warrant, supra note 11, para. 51: ‘in international law it is firmly established that, as also diplomatic and consular agents, certain holders of high-ranking office in a State, such as the Head of State, Head of Government or the Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal’ (emphasis added).
24 As recalled by the Court at para. 185 of its Judgment, supra note 2. See, in particular, Public sitting, President Higgins presiding, in the case concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), 22 January 2008, CR 2008/3 (original), at 15 (Condorelli).
25 See Judgment, supra note 2, paras. 181 (containing a short description by the Court of the arguments made in Djibouti's Application and Memorial) and 185.
26 Ibid., paras. 192–193.
28 Arrest Warrant, supra note 11, paras. 53–54.
29 Immunity of State Officials, supra note 13, para. 132.
30 Judgment, supra note 2, para. 186.
31 For an overview of this question, see Immunity of State Officials, supra note 13, paras. 132–136.
32 It is interesting to note that this question was left open by the Institut de droit international in its 2001 resolution (supra note 14). Article 15(2) thereof contains a ‘without prejudice’ clause aimed at preserving ‘such immunities to which other members of the Government may be entitled on account of their official functions’.
33 See, in particular, A. Cassese, ‘When May Senior State Officials Be Tried for International Crimes? Some Comments on The Congo v. Belgium Case’, (2002) 13 EJIL 853, at 864 (suggesting, although somewhat hesitantly, that immunity ratione personae might also accrue to ‘other senior members of cabinet’).
34 See Kolodkin, supra note 13, paras. 117–121. While mentioning, in this context, ministers of defence and ministers of foreign trade, the Special Rapporteur indicated that he was ‘not aware that an exhaustive list of such officials exist[ed] anywhere’ (ibid., para. 119).
35 See Immunity of State Officials, supra note 13, para. 134.
36 See District Court (Bow Street), Re General Shaul Mofaz, Judgment of 12 February 2004, (2004) 53 ICLQ 771, at 771–3. This case concerned an application for an arrest warrant against General Shaul Mofaz, acting defence minister of Israel.
37 See Bow Street Magistrate's Court, Re Bo Xilai, Judgment of 8 November 2005, 128 ILR 713. This case concerned a request for an arrest warrant against Bo Xilai, incumbent Chinese minister for commerce and international trade. However, as noted in the judgment, Bo participated in the official delegation for a state visit of the president of China, thus being also a member of a special mission and enjoying, on that basis, immunity in accordance with customary law as embodied in 1969 Convention on Special Missions.
38 C. Wickremasinghe, ‘Immunities Enjoyed by Officials of States and International Organizations’, in M. D. Evans (ed.), International Law (2006), at 409.
39 Kolodkin, supra note 13, para. 120.
40 Ibid., para. 121, and see also paras. 90, 93.
41 For numerous references to judicial decisions and scholarly opinions, see Immunity of State Officials, supra note 13, para. 88, nn. 206–7. See also Kolodkin, supra note 13, paras. 78–83.
43 See, on this point, the clear position taken by Kolodkin, supra note 13, para. 80 (‘State officials enjoy immunity ratione materiae regardless of the level of their post, by virtue of the fact that they are performing official State functions. . .’), and para. 107 (‘In the practice of States, especially in national courts rulings and in doctrine, it is generally recognized that all State officials enjoy immunity from foreign criminal jurisdiction in respect of acts performed by them in their official capacity, or immunity ratione materiae’). However, some members of the International Law Commission seemed to suggest that immunity ratione materiae should cover only those State officials ‘who exercise the specific powers of the State’, thus possibly excluding certain categories of officials such as teachers, medical workers, etc.; see Report of the International Law Commission (60th session, 5 May–6 June and 7 July–8 August 2008), Official Records of the General Assembly, 63rd session, Supplement No. 10, UN Doc. A/63/10, para. 288.
44 For an analysis of the distinction between these two types of immunities, including numerous bibliographical references, see Immunity of State Officials, supra note 13, paras. 88–93.
45 See in particular Oral proceedings, CR 2008/3 (original), supra note 24, at 15 (Condorelli, on behalf of Djibouti); and CR 2008/5 (original), supra note 16, at 50 (Pellet, on behalf of France).
46 For a criticism of the lack of reliance by the Court on this distinction, see Cassese, supra note 33, at 862–4.
48 See CR 2008/3 (original), 22 January 2008, supra note 24, at 15–18 (Condorelli, on behalf of Djibouti).
49 Judgment, supra note 2, para. 188.
50 Such an equation was also suggested by Lord Hoffmann in the Jones case before the United Kingdom House of Lords; see Jones (Respondent) v. Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) (Appellants); Mitchell and others (Respondents) v. Al-Dali and others and Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) (Appellants); Jones (Appellant) v. Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) (Respondents) (Conjoined Appeals), Appellate Committee, 14 June 2006, (2006) UKHL 26, at para. 68: ‘I would . . . prefer to say . . . that state immunity affords individual employees or officers of a foreign state “protection under the same cloak as protects the state itself”. But this is a difference in the form of expression and not the substance of the rule.’
51 See Immunity of State Officials, supra note 13, para. 89, n. 218.
52 For an argument according to which state immunity, being ‘civil’ in nature, could not cover immunity of state officials from foreign criminal jurisdiction, see N. Ronzitti, ‘L'immunità funzionale degli organi stranieri dalla giurisdizione penale: Il caso Calipari’, (2008) XCI Rivista di diritto internazionale 1033, at 1039.
53 It is worth noting that the UN Convention on Jurisdictional Immunities of States and Their Property (New York, 2 December 2004, annexed to General Assembly Resolution 59/38, UN Doc. A/RES/59/38, not yet in force), although not referring explicitly to the above distinction, enumerates several cases (which would seem to correspond, grosso modo, to those that are generally regarded in the legal literature as falling under the category of acta jure gestionis) in which state immunity does not apply. Those cases, which are listed in Arts. 10–17 of the Convention, relate to ‘commercial transactions’, ‘contracts of employment’, ‘personal injuries or damage to property’, ‘ownership, possession and use of property’, ‘intellectual property’, ‘participation in companies or other collective bodies’, ‘ships owned or operated by a State’, and ‘effect of an arbitration agreement’.
54 For a discussion and a similar conclusion on this issue, see Immunity of State Officials, supra note 13, para. 161. In this regard, see also para. 6 of the commentary to Art. 4 of the Articles on Responsibility of States for Internationally Wrongful Acts (as adopted by the International Law Commission on second reading in 2001 and as subsequently annexed to General Assembly Resolution 56/83 of 12 December 2001): ‘It is irrelevant for the purposes of attribution that the conduct of a State organ may be classified as “commercial” or as acta jure gestionis’, in Yearbook of the International Law Commission, Vol. II (Part Two) (2001), 41, para. 77. The argument that acta jure gestionis, when performed by a state organ in an official capacity, are attributable to the state in the same way as are acta jure imperii was clearly made, at a time when a different view seemed to prevail on that point in the International Law Commission, by L. Condorelli, ‘Imputation à l'Etat d'un fait internationalement illicite: solutions classiques et nouvelles tendances’, (1984-VI) 189 RCADI 9, at 66–76.
55 See infra, section 3. This is without prejudice to the delicate question of whether immunity ratione materiae is to be regarded as procedural or substantive in nature (infra, notes 112–15 and accompanying text).
56 R. Van Alebeek, The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law (2008), 106: ‘That [the] principle [according to which foreign-state officials do not incur personal responsibility for acts committed under the authority of their home state] is distinct from the law of state immunity is already clear from the fact that state officials may be immune in cases where the state – under the restrictive approach to state immunity – is not. A claim for payment of, say, pencils ordered for the office – a pure actum jure gestionis for the purposes of the law of state immunity – cannot be recovered from the personal bank account of the state official that happens to have placed the order.’
58 Judgment, supra note 2, para. 170.
59 For a detailed discussion of this issue see Immunity of State Officials, supra note 13, paras. 141–153. The memorandum also addresses, at paras. 180–212, the same issue with respect to immunity ratione materiae.
60 As reflected in para. 190 of the Judgment, supra note 2.
64 On this point, see para. 13 of the commentary to Art. 4 of the ILC Articles on Responsibility of States for internationally wrongful acts (supra note 54), in Yearbook of the International Law Commission, supra note 54, at 42, para. 77. On the specific question of ultra vires acts, see also Art. 7, entitled ‘Excess of authority or contravention of instructions’ (‘The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions’), and the Commission's commentary thereto (ibid., at 45–7, para. 77).
65 For a recent analysis, suggesting that such acts are also covered, see Immunity of State Officials, supra note 13, paras. 159–160. A different view seems to be taken by R. Van Alebeek, ‘The Pinochet Case: International Human Rights Law on Trial’, (2000) LXXI BYIL 29, at 66. Recently, this issue has also been raised by Ronzitti, supra note 52, at 1038, n. 14. With respect to the immunity ratione materiae of a former head of state, attention should be drawn to Art. 13(2) of the 2001 resolution of the Institut de droit international (supra note 14), which provides an exception to that immunity, not only if the alleged acts ‘constitute a crime under international law’, but also when such acts ‘are performed exclusively to satisfy a personal interest, or when they constitute a misappropriation of the State's assets and resources’. According to Art. 16 of that resolution, the same rule applies to former heads of government.
66 See Immunity of State Officials, supra note 13, para. 159, nn. 452–5, 457, citing numerous pronouncements in support of both positions.
67 It is true that the Court referred to ‘acts within the scope of [the] duties [of the officials concerned] as organs of State’ (Judgment, supra note 2, at para. 191, emphasis added), which could perhaps be interpreted as implicitly excluding ultra vires acts from the scope of immunity ratione materiae. However, the French text – which is in this case the authoritative one – appears to be more neutral in this regard by simply referring to the ‘fonctions’ (‘functions’) rather than the ‘devoirs’ (‘duties’) of the state officials concerned.
68 A similar argument is made in Immunity of State Officials, supra note 13, para. 160. It should be stressed, however, that recognizing the applicability of immunity ratione materiae in respect of ultra vires acts is without prejudice to the question of whether such immunity should also cover conduct that constitutes a crime under international law; in this author's view, that question should be given a negative answer. On this issue see also supra note 59.
69 See supra note 61 and accompanying text.
70 A situation of that kind may well arise, mutatis mutandis, in other contexts, in particular with respect to the functional immunities accruing to officials of international organizations such as the United Nations. See Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, 29 April 1999,  ICJ Rep. 62 (hereinafter Immunity from Legal Process, Advisory Opinion), at 87: ‘As the Court has observed, the Secretary-General, as the chief administrative officer of the Organization, has the primary responsibility to safeguard the interests of the Organization; to that end, it is up to him to assess whether its agents acted within the scope of their functions and, where he so concludes, to protect these agents, including experts on mission, by asserting their immunity. This means that the Secretary-General has the authority and responsibility to inform the Government of a member State of his finding and, where appropriate, to request it to act accordingly and, in particular, to request it to bring his finding to the knowledge of the local courts if acts of an agent have given or may give rise to court proceedings’ (para. 60); ‘When national courts are seised of a case in which the immunity of a United Nations agent is in issue, they should immediately be notified of any finding by the Secretary-General concerning that immunity. That finding, and its documentary expression, creates a presumption which can only be set aside for the most compelling reasons and is thus to be given the greatest weight by national courts’ (para. 61).
71 Van Alebeek, supra note 56, 115.
72 Regarding the subornation of perjury allegedly committed by the Djiboutian procureur de la République, counsel for Djibouti stated in the oral proceedings, ‘No one could claim that the State Prosecutor travelled to Brussels for his own amusement and there happened to run into Mr Alhoumekani while strolling about. On the contrary, it was indisputably in the full exercise of his official duties as State Prosecutor of the Republic of Djibouti that, following a meeting organized through Mr Alhoumekani's lawyer via contacts with the Palais de justice in Djibouti, our senior Djiboutian official travelled there for a discussion with Mr Alhoumekani in his lawyer's chambers and presence’; see CR 2008/3, supra note 24 (translation), 22 January 2008, at 6 (Condorelli). Concerning the acts allegedly perpetrated by the Djiboutian head of national security, see ibid. (original), 22 January 2008, at 14 (Condorelli).
73 See Judgment, supra note 2, at para. 190.
75 See supra note 62 and accompanying text.
76 See CR 2008/3 (original), supra note 24, 22 January 2008, at 12 and 14 (Condorelli). Regarding the nature of the acts concerned, see also supra note 72. Djibouti's argument on this point is summarized in the Judgment, supra note 2, at para. 187.
77 For the definition of ‘témoin assisté’ according to French law, see supra note 10.
78 It goes without saying that this opinion is based on the assumption that immunity ratione materiae also covers immunity from testimony. It may be recalled, however, that a different position was adopted on this issue by the Appeals Chamber of the ICTY in the Krstić case; see Prosecutor v. Radislav Krstić, Case No. IT-98–33-A, Decision on Application for Subpoenas, 1 July 2003 (Judge Shahabudden dissenting), esp. paras. 20–28. The Appeals Chamber expressed the radical view that functional immunity of state officials did not entail ‘an immunity against being compelled to give evidence of what the official saw or heard in the course of exercising his official functions’. The Appeals Chamber stated that, ‘[u]nlike the production of State documents, the State cannot itself provide the evidence which only such a witness could give’ (ibid., para. 24), and that its findings in the Blaškić case (infra note 115) as to the incompatibility of a subpoena with the rule of functional immunity ‘[could] be justified only in relation to the production [by state officials] of documents in their custody in their official capacity’ (ibid., para. 27). In this author's opinion, it remains difficult to understand why a subpoena to give evidence as a witness on facts knowledge of which was acquired by the state official in the discharge of his or her official functions should be treated differently, for purposes of immunity ratione materiae, from a subpoena to produce official documents. See, on this point, the convincing analysis by Judge Shahabuddeen, at paras. 2–19 of his Dissenting Opinion.
79 Thus, the German Bundesverwaltungsgericht (Federal Administrative Court) granted the Indian defence minister immunity from providing testimony on ‘sovereign acts’ such as the mission of Indian troops deployed in Sri Lanka, their motives, and their official acts; see Bundesverwaltungsgericht, Judgment of 30 September 1988, 1989 Deutsches Verwaltungsblatt 261, summarized in Council of Europe, Committee of Legal Advisers on Public International Law (CADHI), Database on State Practice Regarding State Immunities, available at www.coe.int/t/e/legal_affairs/legal_co-operation/public_international_law/State_Immunities/ (last accessed 26 March 2009).
80 For instance, in the context of the immunity from legal process of UN officials, and in particular regarding the issue of testimony by UN officials in domestic courts, a reference has been made by the UN Office of Legal Affairs to ‘matters within their knowledge as United Nations officials’ (or ‘matters within their official knowledge’); letter addressed in 1978 by the UN Office of Legal Affairs to the Legal Liaison Officer of the UN Office in Geneva, partially reproduced in The Practice of the United Nations, the Specialized Agencies and the International Atomic Energy Agency Concerning Their Status, Privileges and Immunities: Supplementary Study Prepared by the Secretariat, UN Doc. A/CN.4/L.383 and Add.1–3, Yearbook of the International Law Commission, 1985, Vol. II, Part One (Addendum), 145, at 172, para. 58.
81 Reference is made here to a decision adopted by the ICTY in the Simić case regarding the confidentiality interest of the International Committee of the Red Cross (ICRC). Having recognized the existence of a rule of customary international law protecting that interest, the ICTY denied the admissibility of a testimony by a former ICRC employee on information acquired in the performance of his functions; see Prosecutor v. Blagoje Simić, Milan Simić, Miroslav Tadić, Stevan Torodović and Simo Zarić, Decision on the Prosecution Motion under Rule 73 for a Ruling concerning the Testimony of a Witness, IT-95–9-PT, T. Ch. III, 27 July 1999, especially at paras. 36 and 37:
It is the Trial Chamber's view that the ICRC has an interest in this matter sufficient to entitle it to present arguments on the Motion if the Information is based on knowledge gathered by a former employee while carrying out official duties, as ICRC's interests could then be potentially affected. It is acknowledged that a distinction should be drawn between information gathered in an official capacity and information gathered in a private capacity. If the information was obtained in the course of performing official functions, it can be considered as belonging to the entity on whose behalf the individual was working. It follows from this that the relevant entity can be considered to have a legal interest in such information and accordingly may raise objections to the disclosure of the Information. By contrast, in cases where information is acquired by an individual in his private capacity, the entity has no legal interest. Further, if the Information had been obtained in the course of carrying out tasks which do not fall within the competence of the ICRC, it follows that the ICRC could not claim an interest in relation to the non-disclosure of the Information.
. . . In the instant case, it is not disputed that the Information was acquired in the course of official duties, namely during visits to places of detention and while attending an exchange of prisoners supervised by the ICRC. The Trial Chamber notes that, as will be discussed below, these functions are entrusted to the ICRC by the Geneva Conventions and form part of the ICRC's mandate. The proposed witness would not have acquired the Information, had he not worked for the ICRC. The Trial Chamber is of the view that the Information relates directly to the performance of the ICRC's functions under its mandate.
The confidentiality interest of the ICRC was recognized again by the ICTY in a subsequent decision in the same case; see Prosecutor v. Blagoje Simić, Milan Simić, Miroslav Tadić, Stevan Torodović and Simo Zarić, Decision Denying Request for Assistance in Securing Documents and Witnesses from the International Committee of the Red Cross, IT-95–9-PT, T. Ch. III, 7 June 2000.
82 Judgment, supra note 2, para. 195. As already mentioned, this argument appears to be linked, to some extent, to the other argument according to which it had not been ‘concretely verified’ that the acts which were the subject of the witness summonses were indeed within the scope of the duties of the two Djiboutian officials as organs of the State; see supra, section 3.
83 For an overview of this question, see Immunity of State Officials, supra note 13, paras. 215–219.
85 This sentence was already contained in draft Article 6 as adopted by the International Law Commission on second reading in 1991; see Yearbook of the International Law Commission, 1991, Vol. II (Part Two), at 23, as well as para. 5 of the commentary to that article, at 24: ‘The second part of paragraph 1 reading “and to that end shall ensure that its courts determine on their own initiative that the immunity of that other State under article 5 is respected” has been added to the text as adopted on first reading. Its purpose was to define and strengthen the obligation set forth in the first part of the provision. Respect for State immunity would be ensured all the more if the courts of the State of the forum, instead of simply acting on the basis of a declaration by the other State, took the initiative in determining whether the proceedings were really directed against that State, and whether the State was entitled to invoke immunity. Appearance before foreign courts to invoke immunity would involve significant financial implications for the contesting State and should therefore not necessarily be made the condition on which the question of State immunity is determined. On the other hand, the present provision is not intended to discourage the court appearance of the contesting State, which would provide the best assurance for obtaining a satisfactory result’ (emphasis added).
See also C. Rousseau, Droit international public, Tome IV: Les relations internationales (1980), 17, considering that the lack of jurisdiction with regard to foreign States must be raised ex officio by the judge of the forum state.
86 See, in particular, Art. 32 of the 1961 Vienna Convention on Diplomatic Relations (500 UNTS 95), and Art. 41 of the Convention on Special Missions (supra note 22).
88 See, however, the view expressed during the discussions at the Institut by Jacques-Yves Morin, according to whom immunity was an issue of admissibility (‘irrecevabilité’), rather than an issue of jurisdiction (‘compétence’), precisely because it would need to be invoked in order to be applied; see (2000–1) 69 Annuaire de l'Institut de droit international, supra note 13, at 584.
89 Arrest Warrant, supra note 11. It may be recalled, however, that the Court touched upon the question of the exhaustion of local remedies in connection with Belgium's preliminary objection that, since Mr Yerodia had ceased to be a member of the Congolese government, the case had ‘assumed the character of an action of diplomatic protection but one in which the individual being protected ha[d] failed to exhaust local remedies’ (Judgment, para. 37). The Court dismissed that objection by holding that the Democratic Republic of the Congo ‘ha[d] never sought to invoke before [the Court] Mr Yerodia's personal rights’; that, ‘despite the change in professional situation of Mr Yerodia, the character of the dispute submitted to the Court by means of the Application ha[d] not changed’; and that ‘[a]s the Congo [was] not acting in the context of protection of one of its nationals, Belgium [could not] rely upon the rules relating to the exhaustion of local remedies’ (ibid., para. 40).
90 For a negative answer, see J.-Y. De Cara, ‘L'affaire Pinochet devant la Chambre des Lords’, (1999) 45 Annuaire Français de droit international 72, at 76. In the context of the alleged immunity of Pinochet as the former head of state of Chile, the author states, ‘La revendication d'une immunité est une exception préliminaire. Il s'agit d'une fin de non-recevoir qui n'affecte pas seulement la compétence de la juridiction saisie mais prive le juge de son pouvoir de juger. L'immunité paralyse la demande. S'agissant d'une exception d'ordre public, le tribunal doit la relever d'office mais l'Etat accréditant peut renoncer à l'immunité des personnes qui en bénéficient, à condition que la renonciation soit expresse. En l'espèce, le Chili n'a pas renoncé à l'immunité’ (footnotes omitted; emphasis added). With respect to the immunity ratione materiae of a former head of state or of government, it is interesting to note that the above-mentioned Art. 6 of the 2001 resolution of the Institut de droit international (supra note 14), providing that immunity should be afforded as soon as the status of the individual is known to the authorities of the forum state, is also applicable mutatis mutandis to former heads of state or of government, ‘to the extent that they enjoy immunity under article 13’ (see Articles 14 and 16 of the resolution).
91 CR 2008/5 (original), supra note 16, 25 January 2008, at 51 (Pellet).
93 See the Court's description of the arguments presented by France in Judgment, supra note 2, para. 189.
94 Public Sitting, President Higgins presiding, in the case concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), CR 2008/6 (original), 28 January 2008, at 52 (Condorelli).
95 Public Sitting, President Higgins presiding, case concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), CR 2008/6 (translation), 28 January 2008, at 46–7 (Condorelli).
96 Judgment, supra note 2, para. 196.
97 See Immunity of State Officials, supra note 13, para. 220. This point has also been emphasized by the International Court of Justice; see Immunity from Legal Process, Advisory Opinion, supra note 70, para. 63, where the Court considered questions of immunity to be ‘preliminary issues which must be expeditiously decided in limine litis’, while also indicating that ‘[t]his is a generally recognized principle of procedural law’.
100 This is of course without prejudice to the question of waiver, which is discussed infra, section 4.2.
101 See Immunity of State Officials, supra note 13, para. 219.
102 Judgment, supra note 2, para. 196.
104 See supra note 92 and accompanying text.
105 For a well-known example of waiver which also covered the immunity ratione materiae of a former state official (the case of the former president of the Philippines, Ferdinand Marcos, and his wife), see Swiss Federal Tribunal, Ferdinand et Imelda Marcos v. Office fédéral de la police (recours de droit administratif), Judgment of 2 November 1989 (ATF 115 Ib 496), partially reproduced in (1991) Revue suisse de droit international et de droit européen 534, at 537 (English version in 102 ILR 198).
107 Such a possibility is clearly recognized in the UN Convention on Jurisdictional Immunities of States and Their Property (supra note 53); see Arts. 7, 8 and 9.
108 See, for example, Rousseau, supra note 85, at 18, stressing, however, that waiver, although it may be tacit, must be non-equivocal. In contrast, it should be recalled that in the context of diplomatic immunities and immunities of members of special missions ‘[w]aiver must always be express’ (see the Vienna Convention on Diplomatic Relations, Art. 32(2), and the 1969 Convention on Special Missions, Art. 41(2)).
109 See Judgment, supra note 2, para. 35.
110 See, on this point, Immunity of State Officials, supra note 13, paras. 265–268. See also Kolodkin, supra note 13, paras. 94 and 102(i).
111 In the context of state immunity it has been suggested that a defending state is entitled to raise its immunity at any time during the dispute, even after the submission of the conclusions on the merits. See Rousseau, supra note 85, 18.
112 Such a position is clearly expressed by C. Wickremasinghe, supra note 38, at 397, who considers that both types of immunity ‘operate simply as procedural bars to jurisdiction, and can be waived by the appropriate authorities of the sending State, thus enabling the courts of the receiving State to assert jurisdiction’. The view that immunity ratione personae and immunity ratione materiae are both procedural in nature has also been expressed by the Special Rapporteur of the International Law Commission on this topic; see Kolodkin, supra note 13, paras. 81 (n. 157), 89, 102(g).
See also the following observation made by the International Court of Justice, regarding immunity in general, in its judgment in the Arrest Warrant case, supra note 11, para. 60: ‘. . . Immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts. While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law. Jurisdictional immunity may well bar prosecution for a certain period or for certain offences; it cannot exonerate the person to whom it applies from all criminal responsibility.’ The Court referred to the possibility of waiver in respect of the immunities enjoyed under international law by an incumbent or former minister for foreign affairs, thus also alluding to the waiver of immunity ratione materiae; see ibid., para. 61: ‘. . . they will cease to enjoy immunity from foreign jurisdiction if the State which they represent or have represented decides to waive that immunity’. Furthermore, it is worth mentioning that the possibility of waiver is recognized, in the 2001 resolution of the Institut de droit international (see supra note 14), also in relation to the immunity ratione materiae of former heads of state or of government (see Arts. 7, 14, and 16 of the resolution).
113 See, in particular, H. Kelsen, Principles of International Law (1952), 358–9; G. Morelli, Nozioni di diritto internazionale (1967), 215–16; S. Zappalà, ‘Do Heads of State in Office Enjoy Immunity from Jurisdiction for International Crimes? The Ghaddafi Case before the French Cour de Cassation’, (2001) 12 EJIL 595, at 598; P. Gaeta, ‘Official Capacity and Immunities’, in A. Cassese, P. Gaeta, et al. (eds.), The Rome Statute of the International Criminal Court: A Commentary, Vol. I (2002), 976; and Cassese, supra note 33, at 862–3.
114 See Judgment, supra note 2, para. 185: ‘For Djibouti, it is a principle of international law that a person cannot be held as individually criminally liable for acts performed as an organ of State, and while there may be certain exceptions to that rule, there is no doubt as to its applicability in the present case’; as well as para. 187: ‘What Djibouti requests of the Court is to acknowledge that a State cannot regard a person enjoying the status of an organ of another State as individually criminally liable for acts carried out in that official capacity, that is to say in the performance of his duties. Such acts, indeed, are to be regarded in international law as attributable to the State on behalf of which the organ acted and not to the individual acting as the organ.’
115 This is, for instance, the understanding of immunity ratione materiae by the Appeals Chamber of the ICTY in its Subpoena decision in the Blaškić case; see Prosecutor v. Blaškić, Judgment on the Request of the Republic of Croatia for the review of the decision of the Trial Chamber II of 18 July 1997, Case No. IT-95-14, App. Ch., 28 October 1997, para. 38: ‘State officials cannot suffer the consequences of wrongful acts which are not attributable to them personally but to the State on whose behalf they act: they enjoyed so-called “functional immunity”.’
116 An even more extreme position has been taken in this regard by Van Alebeek, who considers that ‘[w]aiver of immunity for real official acts is not possible’ (supra note 56, at 131, n. 101 omitted); in other words, according to that author, ‘[t]he waiver of the substantive immunity from personal liability for acts performed as an arm or mouthpiece of a foreign State is conceptually inconceivable’ (ibid., at 135). It has to be noted, however, that the author does recognize the possibility for the home state to ‘defeat the presumption of authority’ by declaring that ‘despite the ostensible exercise of authority, its official did in fact exceed his authority performing a certain act’, although such a ‘defeat of presumption’ is not regarded by the author as being ‘technically’ a waiver (ibid., at 131).
117 Judgment, supra note 2, para. 170: ‘. . . Thus the determining factor in assessing whether or not there has been an attack on the immunity of the Head of State lies in the subjection of the latter to a constraining act of authority.’
118 Arrest Warrant, supra note 11, para. 54: ‘[the] immunity and [the] inviolability [of a minister for foreign affairs] protect the individual concerned against any act of authority of another State which would hinder him or her in the performance of his or her duties’.
119 This broad scope of jurisdictional immunities as regards the acts precluded by their operation has also been recognized in the context of the immunity from legal process enjoyed by UN officials ‘in respect of words spoken or written and all acts performed by them in their official capacity’, in accordance with Section 18 of the 1946 Convention on the Privileges and Immunities of the United Nations, 1 UNTS 15. See, in particular, The Practice of the United Nations, the Specialized Agencies and the International Atomic Energy Agency Concerning Their Status, Privileges and Immunities: Study Prepared by the Secretariat, UN Doc. A/CN.4/L.118 and Add.1 & 2, in Yearbook of the International Law Commission (1967), II, 154, at 266, para. 250: ‘The expression “legal process” has been interpreted by the United Nations in accordance with the standard definition as comprising the entire judicial proceedings, including the writ, mandate, summons or act by which the court assumes jurisdiction and compels the appearance of the defendant and witnesses and acts of execution, as well as other acts on the part of public authorities, such as arrest and detention in custody, in connection with legal proceedings.’
120 Immunity of State Officials, supra note 13, para. 237.
121 Prosecutor v. Blaškić, supra note 115, para. 38. See, however, with respect to a subpoena to give evidence as a witness, the different – and questionable – view adopted by the Appeals Chamber in the Krstić case (supra note 78).
122 Admittedly, this provision is intended to be a substantive exemption from the obligation to testify rather than a mere procedural immunity. However, this distinction was relied upon by the International Law Commission merely to reflect the fact that, in matters relating to the provision of evidence, a diplomat was under no legal obligation; in other words, that a failure to comply with a witness summons did not constitute a breach of a legal duty; see on this point E. Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations (1998), 259–60. For the debate in the Commission on this question, see Yearbook of the International Law Commission (1958), I, 147–52.
123 Judgment, supra note 2, para. 184.
125 See, however, the Separate opinion of Judge ad hoc Yusuf, Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment of 4 June 2008 (Judge ad hoc Yusuf, Separate Opinion), para. 53, holding that France had violated its own legislation by requesting the testimony of the Djiboutian head of state on the basis of a provision of the French Code of Criminal Procedure – Art. 656 – which only regulated written depositions of a representative of a foreign state. However, it may be difficult to accept Judge Yusuf's argument that France, by violating the provisions of its own legislation, would have acted in violation of the customary rules of international law relating to immunities of heads of state.
127 The French position is summarized by the Court as follows: ‘. . . France contends that only limiting the freedom of action he requires in order to perform his duties might fail to respect the immunity from criminal jurisdiction and the inviolability of a foreign Head of State’ (Judgment, supra note 2, para. 167); and: ‘The witness summons addressed to Djibouti's Head of State is, in France's view, purely an invitation which imposes no obligation on him. According to the Respondent, it is neither binding nor enforceable, and therefore cannot infringe the immunity from criminal jurisdiction or the inviolability of a Head of State’ (ibid., para. 168).
132 Separate Opinion of Judge ad hoc Yusuf, supra note 125, para. 44.
134 Public Sitting, President Higgins presiding, case concerning Certain Questions of Mutual Assistance in Criminal Matters, 21 January 2008, CR 2008/1 (original), 38–44 (Van den Biesen). See also Public Sitting, President Higgins presiding, case concerning Certain Questions of Mutual Assistance in Criminal Matters, 28 January 2008, CR 2008/6 (original), 19–23 (Van den Biesen).
135 See on this point Djibouti's argument as summarized at para. 163 of the Judgment, supra note 2: ‘For Djibouti, however, even though such a warning was not included in the summons addressed to the Head of State, Article 109 of the French Code of Criminal Procedure and Article 434-15-1 of the French Penal Code could still be applied. Consequently, the non-appearance of the Head of State is likewise punishable under French law and may lead to the use of public force.’
136 Judgment, supra note 2, paras. 31, 164, 171.
138 Ibid. (emphasis added).
139 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment 4 June 2008 (Judge Koroma, Separate Opinion), para. 13.
140 The question of inviolability could also have arisen if the witness summonses had been executed by the law enforcement authorities. See, on this point, the Separate Opinion of Judge ad hoc Van den Wyngaert in the Arrest Warrant case (supra note 11), para. 75: while pointing out that the Court, in its judgment, had not offered a definition of the concept of ‘inviolability’, she quoted Jonathan Brown in noting that ‘in the case of a diplomat, the issuance of a charge or summons is probably contrary to the diplomat's immunity, whereas its execution would be likely to infringe the agent's inviolability’ (n. 147, quoting J. Brown, ‘Diplomatic Immunity: State Practice under the Vienna Convention on Diplomatic Relations’, (1988) 37 ICLQ 53).
141 As recalled at para. 175 of the Judgment, supra note 2. See CR 2008/1 (original), 21 January 2008, supra note 134, at 43 (Van den Biesen).
142 Judgment, supra note 2, para. 175.
143 Ibid., para. 180. See CR 2008/1 (original), 21 January 2008, supra note 134, at 46 (Van den Biesen).
144 This claim is briefly described by the Court at para. 177 of the Judgment, supra note 2. See also CR 2008/1 (original), 21 January 2008, supra note 134, 45–50 (van den Biesen).
145 Judgment, supra note 2, para. 180.
147 As recalled by counsel for France in the oral proceedings (CR 2008/5 (original), 25 January 2008, supra note 16, at 35 (Pellet)), the notion of respect for the dignity of a head of state has been characterized as ‘elusive’ by Sir Arthur Watts; see ‘The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers’, (1994-III) 247 RCADI 9, at 41.
148 Questions Concerning Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment of 4 June 2008, (Judge Skotnikov, Separate Opinion) para. 22. See also para. 19 of the Separate Opinion, where it is argued that, in any event, ‘providing the media with information about a procedural act, which, as it has been already found by this Court, is not a violation of the terms of article 29 of the Vienna Convention’, could not be considered a violation of these very same terms. Judge Skotnikov was also of the view that the terms of Art. 29 of the Vienna Convention, which relate to inviolability, ‘do not provide protection from negative media reports’ (para. 20), and that ‘[a] media campaign directed against a foreign Head of State, even if it is based on leaks from the authorities of the receiving State, cannot in itself be seen as a constraining act of authority’ (para. 21).
149 Separate Opinion of Judge ad hoc Yusuf, supra note 125, para. 51, emphasizing that the communication to Agence France-Presse, in breach of the confidentiality of the investigation, of information concerning the witness summons addressed to the president of Djibouti was to be considered an attack on the honour and dignity of the latter.
150 See Report of the International Law Commission (59th session, 7 May–5 June and 9 July–10 August 2007), Official Records of the General Assembly, 62nd session, Supplement No. 10, UN Doc. A/62/10 (2007), para. 376.
153 See the report of the Commission on its 60th session, supra note 43, para. 304.