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Foreign State Officials Do Not Enjoy Immunity Ratione Materiae from Extradition Proceedings: The Not So Curious Case of Khurts Bat – A reply to Dr. Roger O’Keefe

Published on September 4, 2013        Author: 

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ThiagoThiago Braz Jardim Oliveira is a teaching assistant at the Faculty of Law of the University of Geneva and a PhD candidate at the Graduate Institute of International and Development Studies.

On November 15th of last year, Dr. Roger O’Keefe (Cambridge University) gave a very interesting talk at Oxford University titled “Immunities and Extradition: The Curious Case of Khurts Bat”. I was not there, but benefitted from Oxford University’s excellent podcast system (podcast of talk available here). As Dr. O’Keefe explained, the talk developed views he had already expressed in a case note he had written for the British Yearbook of International Law. The case in question was Khurts Bat v Investigating Judge of the German Federal Court, [2011] EWHC 2029 (Admin). The case involved a request by Germany for the extradition, from the UK, of Mr Khurts Bat, head of the Office of National Security of Mongolia. He was sought on account of crimes he supposedly committed in Germany, particularly the kidnapping, imprisonment and questioning of a Mongolian national. In the extradition proceedings before the English court, Mongolia attempted to prevent the extradition of her official by invoking two types of immunity, both of which failed. First, Mongolia relied on personal/ status immunity or immunity ratione personae on the basis that defendant was said to be a member of a Special Mission sent by Mongolia to the UK and also by virtue of Mr. Bat’s position as “a very senior governmental officer.” Secondly Mongolia relied on subject-matter immunity or immunity ratione materiae, arguing that the acts in respect of which Khurts Bat was accused in Germany were committed on behalf of Mongolia.

It had been asserted before the English court that “[Mr. Khurts Bat was] entitled to immunity from criminal prosecution in Germany ratione materiae” (ibid., para. 63). Dr. O’Keefe considered this argument to be “wholly illogical”. For him, to focus on whether the defendant was immune, as a matter of international law, from the courts of the requesting State (Germany), as opposed to from the jurisdiction of the English courts was plainly wrong. The point was crucial because the court eventually held that, under international law, there was no immunity ratione materiae from the jurisdiction of a State with respect to acts done in that State. Since the acts were done in Germany and the English court considered immunity from German jurisdiction, it was held that Mr Khurts Bat did not benefit from immunity ratione materiae. As I explain below, I think the English court was right to treat the question as one relating to immunity from German jurisdiction and not from English jurisdiction. Read the rest of this entry…

 
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