Immunity of State Representatives

To enable them to exercise their functions unhindered, state representatives when abroad benefit from protection against the actions of foreign authorities. Therefore, whether on an official or private visit, serving heads of state, heads of governments and ministers of foreign affairs enjoy absolute immunity from any legal prosecution when abroad. Other members of government may, under certain conditions, benefit from immunity if they travel abroad to perform their official functions. Depending upon their class, members of diplomatic and consular representations are also entitled to some immunity.

Members of government

Serving heads of state, heads of government and ministers of foreign affairs may during their time in office rely upon an absolute immunity which protects them from all criminal prosecution abroad for all acts performed in an official as well as in a private capacity. This immunity derives from international customary law.

According to the Federal Supreme Court, this immunity may be diluted in two cases:

  • When a state expressly waives the immunity of its representative, then the representative may no longer invoke it.
  • The immunity of a head of state, a head of government or a minister of foreign affairs for acts performed in an official or in a private capacity subsists for so long as the person concerned remains in office. Once the person concerned is no longer in office, he/she can only invoke immunity for acts performed in an official capacity whilst in office.

Other members of government may invoke immunity for all official acts performed whilst in office.

The extent of the immunity of state representatives, in particular from the most serious crimes (genocide, crimes against humanity, war crimes) is under active discussion internationally. The debate centres on whether, in certain cases, immunity may be refused by national courts.

The international community has already granted extended authority to the international courts, in particular the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone and the Special Tribunal for Lebanon, by providing in their statutes that persons benefitting from immunities according to international public law may not rely upon them before these courts. Today, it is not possible to invoke any rule of international law which would limit the immunity of state representatives for such crimes before national courts.

Members of diplomatic and consular representations

The status of members of diplomatic and consular representations (which include embassies, permanent missions and consular posts) is governed by the provisions of the Vienna Convention on Diplomatic Relations of 18 April 1961, respectively of the Vienna Convention on Consular Relations of 24 April 1963. These Conventions provide for different categories of persons entitled to varying scope of immunity. So, for example, a diplomat i.e. a member of an embassy or a permanent mission performing diplomatic functions benefits from absolute immunity for the duration of office, that is to say for both acts performed in an official and in a private capacity.