Crime & Authority: State Actors’ Protection - A Study on the Correlation Between Functional Immunity and Rules on Obedience to Orders

Abstract: Functional immunity shields individuals from criminal responsibility when they commit a criminal act in a foreign state, on behalf of their home state. However, a prevailing issue in this domain is the ambiguity surrounding the scope of individuals that are eligible for functional immunity. This thesis examines the extent to which individuals can evade criminal responsibility for acts perpetrated on behalf of their home state in a foreign state. As acts committed for the home state typically stem from an order or instruction, it is pertinent to explore the correlation between function-al immunity and rules on exemption from criminal responsibility due to obedi-ence to orders. It is acknowledged that functional immunity can be granted to an individual who has acted in an ‘official capacity’, either due to his position or the nature of the committed act. A general principle of law on obedience to orders is then developed based on an analysis of Swedish, German, and American law. The general principle of law proposes that freedom from crim-inal responsibility can be claimed for minor crimes when the act was author-ised, and the action was necessary and proportionate. This thesis posits that the general rule on duty of obedience could serve as a supplement when an individual fails to acquire functional immunity. However, the thesis also asserts that defining the range of individ-uals who can have functional immunity should not involve establishing a "lower limit" in the hierarchical structure. Future research should instead fo-cus on refining the definition of "official capacity" and discerning when an individual has acted within this capacity.