Re Barak

• Jurisdiction: Malaysia
• Judge: Wickham
• Judgment Date: 29 September 2009
• Court: Magistrates Court (Malaysia)
• Date: 29 September 2009

England, City of Westminster Magistrates' Court.

(Wickham, Deputy Senior District Judge)

Re Barak1

Diplomatic relations Immunity from jurisdiction Criminal jurisdiction Whether serving Israeli Defence Minister and Deputy Prime Minister entitled to immunity Immunity for members of Special Missions Customary international law Convention on Special Missions, 1969, Article 31

State immunity Immunity from prosecution Immunity ratione personae Whether serving Israeli Defence Minister and Deputy Prime Minister entitled to immunity Reasoning of International Court of Justice in Arrest WarrantCase Customary international law The law of England

Summary:2The facts:In September 2009, Mr Ehud Barak, the serving Defence Minister and Deputy Prime Minister of Israel, visited the United Kingdom to attend the Labour Party Conference and meet with the Foreign Secretary, Defence Secretary and Prime Minister. During his visit, an ex parte application was made to the Court for the issue of a warrant for his arrest in relation to criminal conduct allegedly undertaken while in office.

Held:The application was refused. Mr Barak was immune from prosecution.

(1) Mr Barak's functions were equivalent to those exercised by a Minister for Foreign Affairs. In accordance with the International Court of Justice's reasoning in the Arrest WarrantCase,3 and under customary international law, Mr Barak had immunity from prosecution ratione personae since he would be unable to perform his functions efficiently were he liable to criminal process within United Kingdom jurisdiction (para. 3).

(2) Mr Barak was also entitled to immunity under customary international law as a member of a Special Mission. This immunity was in accordance with Article 31 of the Convention on Special Missions, 1969,4 which declared that

the representatives of the sending State and its diplomatic staff enjoyed immunity from the criminal jurisdiction of the receiving State (para. 4)

The following is the text of the judgment of the Court:5

[1] This is an ex parte application. Those making it have been delayed and I apologise for this. This court has received from the Treasury Solicitors instructed by the Secretary of State for Foreign and Commonwealth Affairs. In response to my request for information about the basis of Mr Barak's visit to the United Kingdom, I am told Mr Barak is in the United Kingdom both for the purposes of attending the Labour Party Conference and to attend official meetings with the Foreign...