Alinea 190 Parket bij de Hoge Raad 26 juni 2018

367. The immunities from jurisdiction to which article 8d of the Criminal Code relates are hard to ascertain in international law. There is no need to consider their precise scope. All that is of importance here is that amnesty differs in essential respects from the immunities recognised under international law and cannot therefore be regarded as an obstacle to the exercise of Dutch criminal jurisdiction under article 8d of the Criminal Code. I would mention just a few differences that seem to me to explain and justify the differing consequences under criminal procedure law between the two legal concepts. Immunities preclude the liability of certain entities, offices and acts from the outset. Immunity is claimed by the state, international organisations, heads of state, foreign ministers, ambassadors and foreign armies and warships. The rationale of immunities generally relates to the sovereignty and mutual independence of states and/or to the contribution they make to interstate legal relations. An important reason for a state to recognise in advance the immunity of dignitaries of foreign states and thus to accept a substantial violation of sovereignty within its own territory is to be able to rest assured that its own representatives and authorities, where eligible, will in turn also be safe from prosecution abroad. Amnesty, by contrast, is granted in retrospect and, by its very nature, is not limited to the holders of certain offices. In principle, anyone can be unilaterally protected by their national state from prosecution (or the possibility of prosecution). The element of reciprocity which characterises immunities under internal law is absent.

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