¹ Jennings and Watts (eds), Oppenheim’s International Law (9th edn, 1992), 456.

² Milanovic, Extraterritorial Application of Human Right Treaties: Law, Principles, and Policy (2011), 26 citing Mann ‘The Doctrine of International Jurisdiction Revisited after Twenty Years’ (1984-III) 186 Hague Recueil 9 at 20.

³ Brownlie, Principles of Public International Law (6th edn, 2003), 297.

⁴ Bernhardt (ed), Encyclopaedia of Public International Law (2nd edn, 1992).

⁵ Oxman, ‘Jurisdiction of States’ (2011) MPEPIL, para 3.

⁶ Oxman, ‘Jurisdiction of States’, para 27.

⁷ See eg Art 3(1)(c) Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents, 1973.

⁸ O’Keefe, Universal Jurisdiction: Clarifying the Basic Concept (2004) 2 J Int’l Crim Just 735 and The Princeton Principles on Universal Jurisdiction produced by the Princeton University Program in Law and Public Affairs (2001).

⁹ In Re Piracy Jure Gentium [1934] AC 586.

¹⁰ Bankovic and Ors v Belgium and Ors App No 52207/99, [2001] ECHR 89, 123 ILR 94.

¹¹ Island of Palmas (Or Miangas) case (Netherlands v USA) RIAA II 829 at 838 (1928).

¹² See the Index for references to where this case is discussed.

¹³ Warbrick, ‘The Principle of Sovereign Equality’ in Lowe and Warbrick (eds), United Nations and the Principles of International Law: Essays in memory of Michael Akehurst (1998), 204.

¹⁴ Ruggie, Constructing the World Polity: Essays in International Institutionalisation (1998), 195.

¹⁵ ‘As ownership is described as a bundle of rights, sovereignty may be described as a bundle of competences’: Blix, Sovereignty, Aggression and Neutrality (1970), 11.

¹⁶ ADI vol 68–1 (1999) 372–3.

¹⁷ Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v Russian Federation), Provisional Measures, Order of 15 October 2008, ICJ Reports 2008, para 109. The Court did not revisit the question of the territorial application of CERD, which was raised by Russia as a preliminary objection, in its judgment because it decided it had no jurisdiction on different grounds: Judgment, Preliminary Objections, ICJ Reports 2011.

¹⁸ Milanovic, Extraterritorial Application of Human Right Treaties: Law Principle and Policy (2011), 55.

¹⁹ Bankovic and Ors v Belgium and Ors App No 52207/99, IRIS 2002-1:3/2, paras 59–60.

²⁰ Secretary of State for Defence v Al-Skeini and Ors [2007] UKHL, [2008] 1 AC 153.

²¹ Al-Skeini and Ors v United Kingdom App No 55721/07, [2011] ECHR 1093 (7 July 2011).

²² Al-Skeini and Ors v United Kingdom App No 55721/07, [2011] ECHR 1093 (7 July 2011), paras 136–7.

²³ Öcalan v Turkey [GC], App No 46221/99, § 91, ECHR 2005 IV; Issa and Ors v Turkey App No 31821/96, 16 November 2004; Saadoon and Mufdhi v United Kingdom (dec), App No 61498/08, §§ 86–9, 30 June 2009; and in Medvedyev and Ors v France [GC], App No 3394/03, § 67, ECHR 2010.

²⁴ Al-Skeini and Ors v United Kingdom App No 55721/07, [2011] ECHR 1093 (7 July 2011), para 141.

²⁵ Al-Skeini and Ors v United Kingdom App No 55721/07, [2011] ECHR 1093 (7 July 2011), para 142.

²⁶ See Milanovic ‘Al-Skeini and Al-Jedda in Strasbourg’ (2010) 22 EJIL 121 at 123–39. In Amnesty International Canada and British Columbia Association for Liberties v Civil Chief of Defence Staff for the Canadian Forces, Ministry of National Defence and Attorney General of Canada, Canadian Federal Court, 12 March 2008, Mactavish J held that while detainees in the custody of Canadian forces in Afghanistan have rights accorded to them under international law, international humanitarian law, and the Afghan Constitution, they do not have rights under the Canadian Charter of Rights and Freedoms and that the Charter is inapplicable and has no extraterritorial application to the conduct in the case. The court, applying R v Hape (2007) 46 ILM 813, ruled that the extraterritorial application of the Canadian Charter is subject to two requirements: that the conduct of which complaint is made be that of a State actor; and the application of the Charter to extraterritorial activities of the Canadian State actor be justified by an exception to the principle of sovereignty. The English decision of Al-Skeini was distinguished on the ground that Canada was not an occupying power of Afghanistan.

²⁷ Al-Skeini and Ors v United Kingdom App No 55721/07, [2011] ECHR 1093 (7 July 2011), para 143.

²⁸ The Grand Chamber also issued a judgment in Al-Jedda v UK App No 27021/08, judgment of 7 July 2011, holding the UK to be in effective control during the period of security operations prior to Iraq’s assumption of powers to discharge its obligations under the ECHR and that ‘… neither Resolution 1546 nor any other United Nations Security Council Resolution explicitly or implicitly required the United Kingdom to place an individual whom its authorities considered to constitute a risk to the security of Iraq into indefinite detention without charge. In these circumstances, in the absence of a binding obligation to use internment, there was no conflict between the United Kingdom’s obligations under the Charter of the United Nations and its obligations under Article 5 § 1 of the Convention….’ (109).

²⁹ Kiobel v Royal Dutch Petroleum Co, No 10-1491, slip op, USSC, 17 April 2013, at 14.

³⁰ Kiobel v Royal Dutch Petroleum Co, No 10-1491, slip op, USSC, 17 April 2013. The plaintiffs were US citizens by the time the case was heard, having been granted asylum. See further Ch 8.

³¹ Kiobel v Royal Dutch Petroleum Co, No 10-1491, slip op, USSC, 17 April 2013, at 5.

³² The relevance, as discussed below, of a jurisdictional link to the territory of the forum State to support a national court’s exercise over a foreign State is to be seen as an additional restriction, rather than an extension of, the forum State’s territorial jurisdiction.

³³ The ICJ considered this principle in the case Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) ICJ Reports 2012. After Senegal refused to extradite Hissène Habré, former dictator of Chad, to Belgium, Belgium requested Senegal to prosecute Habré for crimes against humanity and torture. The Court confirmed that Senegal was under an obligation to extradite or prosecute Habré without undue delay. See also the work of the ILC on ‘The obligation to extradite or prosecute (aut dedere aut judicare)’, especially the 4th Report of the Special Rapporteur, Z Galicki, A/CN.4/648.

³⁴ International treaties, with the exception of the grave breaches provisions of the 1949 Geneva Conventions, tend to place the obligation to establish universal jurisdiction and the obligation aut dedere aut judicare in separate articles. See eg Torture Convention, Art 5(2); Convention for the Suppression of Unlawful Seizure of Aircraft, Art 4(2), 16 December 1970, 860 UNTS 105; Convention for the Suppression of Unlawful Acts Against the Safety of Civilian Aircraft, Art 5(2), 23 September 1971, 974 UNTS 177; Convention Against the Taking of Hostages, Art 5(2), 17 December 1979, 1316 UNTS 205. See Obligation to Prosecute or Extradite (Belgium v Senegal) ICJ Judgment 20 July 2012, para 122 where the Court found it had jurisdiction with regard to the obligation to prosecute under the 1984 UN Convention on Torture but none in respect of a violation of universal jurisdiction under customary international law. See O’Keefe, The Grave Breaches Regime and Universal Jurisdiction (2009) 7(4) J Int’l Crim Just 811, 826–8 and van Steenberghe, ‘The Obligation to Extradite or Prosecute’ (2011) 9 JICJ 1089.

³⁵ A study on universal jurisdiction by Amnesty International published in 2011 shows that 84 per cent of States have incorporated universal jurisdiction into their domestic system, but only Argentina, Austria, Australia, Belgium, Canada, Denmark, Finland, France, Germany, Israel, Netherlands, Norway, Paraguay, Senegal, Spain, Sweden, Switzerland, the UK, and the US have invoked this jurisdiction. The study cites only one instance (Extradición Ricardo Miguel Cavallo, Suprema Corte de Justicia de la Nación (Mexico), Amparo en Revisión 140/2002, 10 June 2003) in which an individual has been extradited to a State prosecuting pursuant to universal jurisdiction. Amnesty International, Universal Jurisdiction: A Preliminary Survey of Legislation Around the World (October 2011), 1, 10.

³⁶ Kiobel v Royal Dutch Petroleum Co, No 10-1491, slip op, USSC, 17 April 2013. See ILA 2012 Sofia Guidelines on Best Practices for International Civil Litigation for Human Rights Violations, Art 2.1 proposing, as regards a private party defendant, that the State of the permanent residence of an individual defendant or statutory seat, central administration, or place of business shall be entitled to exercise jurisdiction in civil proceedings seeking ‘to redress conduct constituting a human rights violation, in view of the nature of the norm allegedly violated or the gross or systematic nature of the breach alleged’.

³⁷ Belgium v Senegal ICJ Reports 2012, para 122 (i) and (ii). See also Judge Abraham Separate Opinion. The absence of authoritative guidance as to the customary international law has resulted in the UNGA Resolution 66/103 of 2011 setting up a Working Group of the Sixth Committee to undertake a thorough discussion of the scope and application of universal jurisdiction. In the Peruvian Genocide Case (20 May 2003), 42 ILM 1200, 141 ILR 720 Spain, Supreme Ct Crim Div, the Spanish court possessed universal jurisdiction only on a subsidiary basis. Jurisdiction was primarily a matter for the courts of a country where the acts were committed in that territory or by nationals of that country.

³⁸ See the Institut de Droit international 2005 Resolution on ‘Universal Jurisdiction with regard to the crime of Genocide, Crimes against humanity and the War Crimes’ where Art 3(c) suggests preference be given to trial by the State where the offence was committed or the State of the nationality of the offender if willing and able to do so.

³⁹ Arrest Warrant of 11 April 2000, para 46.

⁴⁰ Arrest Warrant of 11 April 2000, para 2.

⁴¹ Brownlie, Principles of Public International Law (4th edn, 1990), 322.

⁴² Lauterpacht (ed), Oppenheim’s International Law (8th edn, 1955).

⁴³ Spanish Government v Casaux (Lambege and Pujot), French Cour de Cassation 22 January 1849, Sirey 1830 I, 81 at 93; Dalloz, 1848 I, 5.

⁴⁴ YBILC (1981) Vol II, Pt 2, 156, para 215; see also YBILC (1982) Vol II, Pt 1, 205, paras 20–1. Any attempt to resolve the issue by use of the shifting of the burden of proof from foreign State to forum State and back has been shown to be ‘artificial and ultimately a petitio princeps’. Giegerich, ‘Do Damages arising from Jus Cogens violations Override State Immunity from the Jurisidiction of Foreign Courts?’ in Tomuschat and Thouvenin (eds), The Fundamental Rules of the Legal Order: Jus Cogens and Erga Omnes (2006).

⁴⁵ At paras 64 and 125; also cited in para 94 of the Jurisdictional Immunities judgment.

⁴⁶ Cf the Dissenting Opinion of Judge ad hoc Gaja in Jurisdictional Immunities concluding, as regards the territorial tort exception, ‘one has to reach the conclusion that the nature of the obligation under international law which is at the origin of the claim does not per se provide sufficient evidence that jurisdiction may be exercised over foreign States in case of a claim for reparation for the breach of an obligation under a peremptory norm wherever committed. On the other hand, one cannot infer from this practice that the nature of the obligation breached negatively affects the applicability of the “tort exception”. It would indeed be extraordinary if a claim could be entertained on the basis of the “tort exception” when the obligation breached is of a minor character while this exception would not apply to claims relating to breaches of obligations under peremptory norm’. (para 11)

⁴⁷ Arrest Warrant, para 43. Joint Separate Opinion, para 3c.

⁴⁸ Jurisdictional Immunities, ICJ Order, Italy’s Counterclaim, 6 July 2010.

⁴⁹ See this view advanced in the Joint Separate Opinion in the Armed Activities case, para 27.

⁵⁰ This conclusion is supported by Professor Brownlie’s view that the exercise of civil and criminal jurisdiction over private individuals is ultimately based on the same principles: ‘Indeed, as civil jurisdiction is ultimately reinforced by procedures of enforcement involving criminal sanctions, there is no great difference in principle between the problems created by assertion of civil and criminal jurisdiction over aliens. In either case the prescriptive jurisdiction is involved’: Brownlie, Principles of Public International Law (4th edn, 1990), 303. See also Crawford, ‘A Foreign State Immunities Act for Australia?’ (1983) 8 Aust YB Int Law 71 at 90.

⁵¹ Singer, ‘Abandoning Restrictive Sovereign Immunity: An Analysis in Terms of Jurisdiction to Prescribe’ (1985) 1 Harv Intl LJ 26 at 30–59.

⁵² Reydams, Universal Jurisdiction, International and Municipal Legal Perspectives (2003), 5; Donovan and Roberts, ‘The Emerging Recognition of Universal Civil Jurisdiction’ (2006) 100 AJIL 142, 144, note that universal jurisdiction allows a State to both ‘proscribe extraterritorial conduct with which it has no connection, and to empower its courts to adjudicate such conduct’. See the unanimous rejection of universal civil jurisdiction in Kiobel v Royal Dutch Petroleum Co, No 10-1491, slip op, USSC, 17 April 2013 (discussion in Ch 7).

⁵³ Crawford, ‘Execution of Judgments and Foreign Sovereign Immunity’ (1981) 75 AJIL 821 at 856, citing Akehurst (1972–3) 46 BYIL 145 at 170–7.

⁵⁴ Kiobel v Royal Dutch Petroleum Co, No 10-1491, slip op, USSC, 17 April 2013, at 6.

⁵⁵ Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, 27 September 1968 as amended 1990 OJ (C 189) 1 now transformed into EC Council Regulation 44/2001, 20 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters 1997 OJ (L 12) <http://europa.eu.int/eur-lex/>; Lugano Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, 16 September 1988, 1988 OJ (L 319) 9. In 2010, the European Commission proposed to recast Regulation (EC) No 44/2001 by, inter alia, abolishing, for most judgments, the intermediate procedure for the enforcement of judgments between Member States (exequatur), coupled with a significant reduction in the grounds for challenging recognition or enforcement, and extending the Regulation’s rules of jurisdiction to defendants not domiciled in the EU: COM (2010) 748 final (14 December 2010). In 2011, Council agreed on political guidelines on the abolition of exequatur (considered to cause unnecessary costs and delays and abusive litigation tactics), with the aim of removing the remaining obstacles to the free movement of judicial decisions in line with the principle of mutual recognition: Council of the European Union, Press Release, 18498/11, 13–14 December 2011, p 22.

⁵⁶ The idea was that where a court has jurisdiction on an approved basis, it can hear the case and the resulting judgment will be recognized and enforced in other Contracting States. Trevor Hartley and Masato Dogauchi, Explanatory Report to the Convention on 30 June 2005 on Choice of Court Agreements (HCCH, 2007), 16.

⁵⁷ Jeffrey D Kovar, Assistant Legal Adviser US Dept of State, Prepared Statement for hearing before the Sub-Committee on Courts and Intellectual Property of the House Committee on Judiciary, 106th Congress, 4–9, 29 July 2000, cited in Murphy, ‘Contemporary Practice of the United States: Negotiation of the Convention on Jurisdiction and Enforcement of Judgments’ (2001) 95 AJIL 418 at 429.

⁵⁸ Trevor Hartley and Masato Dogauchi, Explanatory Report to the Convention on 30 June 2005 on Choice of Court Agreements (HCCH, 2007), 16.

⁵⁹ Mexico. The US and the European Union have signed but not ratified the Convention <http://www.hcch.net/index_en.php?act=conventions.status&cid=98>.

⁶⁰ See Annex to ECSI. The US took the opportunity of enacting the FSIA to prohibit the acquisition of jurisdiction against a foreign State solely by attachment of a ship or other property in its ownership (FSIA, s 1610 House Report) but Scottish law still seems to permit it: Forth Tugs v Wilmington Trust Co 1987 3 SLT 153; 107 ILR 641.

⁶¹ Alternatively, should it be more broadly based? There is a view that State commission of human rights violations should be subject to universal civil jurisdiction which generally would be considered as an exorbitant basis of jurisdiction for claims in tort: van Schaak, ‘In Defense of Civil Redress: The Domestic Enforcement of Human Rights Norms in the Context of the Proposed Hague Judgments Convention’ (2001) 42 Harv Intl LJ 141. See also Donovan and Roberts, ‘The Emerging Recognition of Universal Civil Jurisdiction’ (2006) 100 AJIL 142 (arguing for the disciplined exercise of universal civil jurisdiction for heinous conduct). See Chs 15 and 20.

⁶² ECSI Commentary General Comments, para 10(1). See Ch 5.

⁶³ Trooboff, ‘Foreign State Immunity: Emerging Consensus on Principles’ (1986–V) 245 R de C 200 at 335–51.

⁶⁴ This aspect was recognized by the Australian Law Reform Commission in its report when, in excluding criminal proceedings from a general statute relating to State immunity, it stated: ‘The problems arising with regard to the application of penal or regulatory legislation to foreign states are also matters which do not directly affect civil rights, and which have to be resolved primarily between the relevant governments or agencies and the foreign state in question’: Australian Law Reform Commission Report No 24, ‘Foreign State Immunity’ (1984), para 161, and see para 112. See also ADI (1977) Wiesbaden, 11 August 1977, Resolution on Public Law Claims instituted by a foreign authority: ‘Public law claims instituted in legal proceedings by a foreign authority or a foreign public body should in principle be considered inadmissible in so far as from the viewpoint of the forum State the subject-matter of such claims is related to the exercise of governmental powers’.

⁶⁵ Fox, ‘Some Aspects of Immunity from Criminal Jurisdiction of the State and its Officials: The Blaskic case’ in Vohrah and Pocar et al (eds), ‘Man’s Inhumanity to Man’: Essays in International Law in Honour of Antonio Cassese (2003), 297; Fox (ed), ‘The International Court of Justice’s Treatment of Acts of the State, and in particular the Attribution of Acts of Individuals to the State’ in Ando, McWhinney, and Wolfrum (eds), Liber Amicorum Judge Shigeru Oda I (2000), 147.

⁶⁶ The Singapore State Immunity Act 1979, s 19(2)(b), the Pakistan State Immunity Ordinance 1981, s 17(2)(b), the South Africa Foreign States Immunities Act 1981, s 2(3) (the provisions of this Act shall not be construed as subjecting any foreign State to the criminal jurisdiction of the courts of the Republic), the Canada SIA 1982, s 17 (this Act does not apply to criminal proceedings or proceedings in the nature of criminal proceedings); the Australian Foreign States Immunities Act 1985, s 3(1) defines a proceeding as not including ‘a prosecution for an offence or an appeal or other proceeding in the nature of an appeal in relation to such a proceeding’.

⁶⁷ United States Foreign Sovereign Immunities Act 1976, s 1303(a). There is no discussion of the limitation to civil proceedings in the House Report. US courts have, however, differed on whether the FSIA provides immunity from criminal indictment: compare Southway v Central Bank of Nigeria 198 F.3d 1210 at 1214–15 (1999) (10th Cir) (concluding the FSIA applies only to civil proceedings) with Keller v Central Bank of Nigeria 277 F.3d 811 at 818–20 (2002) (6th Cir) (saying Congress would have to amend the FSIA expressly to exclude immunity from criminal indictment).

⁶⁸ At any rate as performed outside the forum State.

⁶⁹ In Sayag v Le Duc ECJ (1969) 329 a claim for compensation was brought against the European Community by insurers in respect of a motor vehicle accident, notwithstanding that the ECJ had held the driver, an EC official driving to work, was not performing an act in an official capacity (ECJ (1968), 395). The ECJ dismissed the claim on the ground that the non-contractual liability of the European Community under EC Art 188(1) for ‘damage … caused by its servants in performance of its duties’ did ‘not, in principle, include the use by servants of the Community of their private cars in the course of their employment’. But in the course of its earlier judgment the Court emphasized that ‘the designation of an act with regard to immunity from legal proceedings, and any decision taken by the competent institution with regard to waiver of the immunity, do not prejudge any liability on the part of the Community, this being governed by special rules’ (ECJ (1968), 406).

⁷⁰ Municipal law has equally found both theoretical and practical problems in enacting criminal corporate liability for intentionally causing death or serious physical injuries in its penal code. Only in 2007 has the UK enacted the Corporate Manslaughter and Homicide Act 2007.

⁷¹ ILC Second Report on State Responsibility 1998.

⁷² ILC’s Draft Articles on State Responsibility adopted by the International Law Commission, Official Records of the General Assembly, Fifty-sixth Session, Supplement No 10 (A/56/10), Ch IV. E.1 Art 40. Special Rapporteur’s Fourth Report on State Responsibility, 31 March 2001 (A/CN.4/517), para 46.

⁷³ The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia), Judgment, ICJ Reports 2007, para 167. See also Jørgensen, The Responsibility of States for International Crimes (2000), 272–82.

⁷⁴ The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia), Judgment, ICJ Reports 2007, para 166.

⁷⁵ The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia), Judgment, ICJ Reports 2007, para 167.

⁷⁶ The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia), Judgment, ICJ Reports 2007, para 170. The French text is particularly clear on this point: ‘La Cour fait observer que les obligations en cause en l’espèce telles qu’elles résultent des termes de la Convention et les responsabilités qui découleraient pour les États de la violation de telles obligations sont des obligations et des responsabilités relevant du droit international, et ne sont pas d’ordre pénal’.

⁷⁷ Prosecutor v Blaskic (Subpoenae) Case IT-95-14-PT, decision of 29 July, 12 August, and 29 October 1997 of the Appeals Chamber, 110 ILR 609 at 709–10.

⁷⁸ Cf the UK Corporate Manslaughter and Homicide Act 2007. See also Art 121-2 of the French Code Pénal.

⁷⁹ The Erika case, Judicial Agent of the Treasury v Malta Maritime Authority GP (2005) 1160: The Cour d’Appel de Paris held that Malta Maritime Authority was exercising elements of governmental authority in registering the ship and was an emanation of the State of Malta; it was therefore immune from criminal jurisdiction. See also the Joola case, 19 January 2010, Fr Cass crim RGDIP 115 (2011), where the Court of Cassation, Chambre Criminelle held that the former prime minister and minister of defence of Senegal benefited from immunity from criminal jurisdiction in relation to their decisions regarding the certification of the Joola.

⁸⁰ To discuss the extraterritorial exercise of the jurisdiction of the forum State over crimes would only complicate an already complicated subject. The number of crimes which a State may commit within another State’s territory is not likely to be great (pace sponsored terrorism) and to consist in the main in infringements of health and safety or environmental regulations.

⁸¹ See in this connection the novel powers of inquiry given in the Institut de Droit International’s Resolution on the Immunities of Heads of State and of Governments, Art 4(2) and (3), ADI 69, (2001–1) 742. Fox, ‘The Institute’s Resolution on Immunities of Heads of State and of Heads of Government’ (2002) 51 ICLQ 119.

⁸² Jurisdictional Immunities of the State (Germany v Italy, Greece Intervening), para 91.

⁸³ Macleod, 20 November 1854, FO 83; McNair’s Law Officers Opinions II, 221–30; B & F SP Vol 29, 1139. See Jennings ‘The Caroline and McLeod Cases’ (1938) 32 AJIL 82.

⁸⁴ Prosecutor v Blaskic (Subpoenae) Case IT-95-14-PT, decision of 29 July, 12 August, and 29 October 1997 of the Appeals Chamber; 110 ILR 607 at 707.

⁸⁵ See The Princeton Principles on Universal Jurisdiction produced by the Princeton University Program in Law and Public Affairs (2001).

⁸⁶ Kolodkin, Second Report, para 81. Francis Gary Powers case, Hearing before the Senate Committee on Foreign Relations, 86th Congress, 2nd Sess 175 (1960). See de Lupis, ‘Foreign Warships and Immunity for Espionage’ (1984) 78 AJIL 61 at 69. Also the Rainbow Warrior (New Zealand v France) France-New Zealand Arbitration Tribunal, 30 April 1990, 82 ILR 500, where although France considered the detention in New Zealand of the two agents was unjustified as France was ready to give an apology and pay compensation, the agents did not plead immunity to charges of manslaughter and wilful damage.

⁸⁷ Kolodkin, Second Report, para 163.

⁸⁸ Kolodkin, Second Report, paras 81 and 90.

⁸⁹ Though he expresses the view that ‘crimes perpetrated during military conflict in the territory of a State would seem to be governed primarily by humanitarian law’.

⁹⁰ Khurts Bat v Investigating Judge of the Federal Court of Germany [2011] EWHC 2029 (Admin). See discussion in Ch 18 and analysis in Sanger, ‘Immunity of State Officials from the Criminal Jurisdiction of a Foreign State’ (2013) 62 ICLQ 193.

⁹¹ Arrest Warrant of 11 April 2000, paras 73–4 of the Joint Separate Opinion.