Research Handbooks in International Law series
Edited by Alexander Orakhelashvili
Chapter 7: Immunity from the criminal jurisdiction of national courts
International law recognizes that state immunity confers, upon certain individuals, immunity from the criminal jurisdiction of the domestic courts of states of which they are not nationals. Immunity from criminal jurisdiction means that a person cannot be prosecuted, cannot be summonsed and cannot be required to answer questions. Such a person, who is immune from criminal jurisdiction, is also inviolable, which means s/he cannot be arrested and a warrant cannot be issued for his/her arrest. There are two types of immunity from criminal jurisdiction of other states, immunity ratione personae, immunity conferred because of the position a person holds in a state; and immunity ratione materiae, immunity conferred because of conduct undertaken on behalf of a state. State immunity is an aspect of the sovereignty of a state. It protects the rights and interests of the state. It belongs to the state, not the individual. A state entitled to immunity may waive the immunity of an individual and say that immunity will not apply. Such immunity is only accorded to officials who represent a sovereign state, not a constituent part of a state. State immunity from the criminal jurisdiction of foreign states is a matter of customary international law which is created largely by the consent of states. Customary international law is described as ‘international custom, as evidence of a general practice accepted as law’.
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