There are special rules when a civil servant has breached his obligations in foreign states.
Any civil servant may be prosecuted in the courts of his or her State. However, before the courts of foreign States, certain civil servants enjoy immunity.
example It is not possible to sue a civil servant of a foreign state in domestic courts for racist remarks.
Under international law, immunity prevents a civil servant from being prosecuted in foreign courts. These civil servants enjoy two types of immunity:
- Jurisdictional immunity from action by the courts of a foreign State
- Immunity from execution, which makes it possible to escape any measure of constraint of forced execution on the part of a foreign State
Depending on the status of the civil servant considered, the rules on immunities are not the same:
Any civil servant benefits from jurisdictional immunity which continues at the end of their mandate. This means that civil servants can never be prosecuted, even after the end of their duties.
example Military personnel who, during a control operation, shot at fishermen thinking they were pirates are protected by this immunity. The territorial State will therefore not be able to pursue them. However, the State of employment (usually the State of nationality) will be able to take legal action and impose sanctions in the event of misconduct.
exception The State has the possibility to withdraw the immunity of its civil servants, who may be convicted in the courts of a foreign State.
However, this immunity only covers acts committed while on duty, or in connection with their mandate. Therefore, the possibility of prosecuting a civil servant for comments he expressed depends on the link between these comments and the mandate of the civil servant. This means that comments made in a private context are not condemnable before the courts of a foreign State.
example Racist statements made by a civil servant on his private holiday abroad are not protected by immunity from jurisdiction and are therefore criminally punishable.
For these specific state officials, immunity protects any act, whether official or private, committed during their mandate. This rule has been confirmed by the International Court of Justice on several occasions.
example A sexist comment made by the French Ambassador to the Netherlands cannot be criminally prosecuted in the Netherlands.
At the end of his or her term of office, these state officials continue to enjoy so-called residual immunity ratione materiae. This means that they cannot be prosecuted for acts committed while in office.
example It is not possible to sue a former head of government for words said during an official interview abroad during his/her former term of office, even if these words are criminally reprehensible in their state.
exception The State has the possibility to withdraw the immunity of its civil servants, who may be convicted in the courts of a foreign State.