Introduction
On January 29, 2020, an Israeli air strike proved fatal, taking the lives of an entire family, a twelve-year-old child the youngest among them.Footnote 2 The airstrike was carried out as part of Israel's military operation, Operation Protective Edge, in the Gaza Strip, and despite the deaths of numerous civilians, the State of Israel alleged that the strike was committed in pursuance of official duties.Footnote 3 Ismail Zeyada, whose mother, brothers, sister-in-law, and nephew all perished in the airstrike,Footnote 4 initiated a civil suit in the Netherlands against the two former Israeli military officials involved. In a devastating blow to the victims and their families, the District Court of the Hague dismissed the civil proceeding brought against the former Israeli officers.Footnote 5 The Court cited the doctrine of functional immunity as the basis for this decision.Footnote 6 The functional immunity, or immunity ratione materiae, of these officials bars the prosecution of them in any state besides Israel, absent a waiver by the Israeli government.Footnote 7 As such, the victims of the airstrike, an act that might amount to a war crime,Footnote 8 is not one for which victims are being offered redress. Although domestic prosecution of the case before Israeli courts is theoretically possible and is not precluded by the District Court of the Hague's dismissal, domestic prosecution is neither likely to occur nor likely to result in fair redress for the victims of this atrocity.Footnote 9 This is not the justice these victims deserve.Footnote 10 And it is not the justice that international law assures them.
This Article argues that when domestic courts grant functional immunity to state officials, they violate States’ obligations to effectively prohibit derogations from peremptory norms in international law, otherwise known as jus cogens norms. This analysis is based on case law deeming amnesty laws incompatible with States’ obligations not to derogate from jus cogens norms. As such, this Article seeks to extend the rationale surrounding amnesty laws to argue that foreign national courts’ invocation of functional immunity amounts to a breach of States’ obligations owed to the international community to prosecute particularly grave and universally condemned international crimes. Applied to Ismail Zeyada's civil complaint against the former Israeli military officials for the airstrike that destroyed his family, this argument would mandate finding that the District Court of the Hague erroneously dismissed the action on the basis of functional immunity.
Part I explains the facts and procedural history of the District Court of the Hague's recent dismissal of Zeyada's complaint. Part II provides an overview of the development of jus cogens norms, fundamental norms of international law of a peremptory nature, and the implication of the prohibitions of certain international crimes that have achieved this universal status. In addition, Part II provides background on the rationales behind enabling foreign officials to be immune from prosecution before foreign national courts, and the efforts to codify exceptions to immunity for allegations of international crimes. Part III examines how peremptory norms impart the positive obligation on States to effectively prohibit derogations through prosecution, as supported by reference to case law holding amnesty provisions incompatible with the duty to prohibit derogations from jus cogens norms. Subsequently, Part III argues that the grant of functional immunity is incompatible with certain States’ obligations erga omnes (Latin for “towards all,” i.e. obligations owed to the entire international community to prosecute derogations from jus cogens norms). Part III concludes with the argument that the District Court of the Hague's recent recognition of the former Israeli military officials’ functional immunity is incompatible with the state's international legal obligation to prohibit derogations from jus cogens norms, especially the prohibition on war crimes, and as such, the state should be held internationally responsible.
Part 1: Continued Recognition of Functional Immunity Before Foreign National Courts: The District Court of the Hague's Dismissal
As previously discussed, following a 2014 military air strike in the Gaza Strip, Ismail Zeyada instituted civil proceedings before the District Court of the Hague to hold two state officials liable for the deaths of his family members.Footnote 11 As a Palestinian man with Dutch citizenship,Footnote 12 Zeyada chose to bring this civil suit in the Netherlands, hereinafter referred to in this Article as the Air Strike case, against the two former Israeli military officers involved in the strike.Footnote 13 On the day of the air strike, July 20, 2014, the two Defendants had “supreme command of the Israeli army and the Israeli air force as Chief of General Staff and Air Force Chief . . . . ”Footnote 14 The air strike was part of an official military operation, Operation Protective Edge (OPE), and the State of Israel confirmed that the Defendants acted within their official capacities.Footnote 15 By instituting proceedings, Zeyada attempted to hold the Defendants “responsible for both the air strike and the policy . . . of the Israeli armed forces to target civil residences during OPE.”Footnote 16 In his suit, Zeyada did not attempt to hold the state of Israel liable for the deaths of his family members; rather, he invoked the individual responsibility of the former officers.Footnote 17
The District Court of the Hague analyzed whether it could properly assert jurisdiction over the matter through the application of Dutch domestic law, which provides that the jurisdiction of the court can be limited by “exceptions recognized in international law.”Footnote 18 As such, the court evaluated whether the customary international law norm granting foreign officials’ immunity from prosecutionFootnote 19 could pose such an exception to the court's jurisdiction.Footnote 20 The court analyzed the concept of individual responsibility—the responsibility of individuals for certain international crimes such as war crimes, crimes against humanity, and genocide.Footnote 21 The court concluded that individual responsibility provides an exception to immunity before international courts.Footnote 22 The court referenced the case of Charles Taylor—a sitting head of state at the time of his indictment by the prosecutor of the Special Court for Sierra Leone (SCSL)—in which the SCSL held that a sitting head of state could be indicted, notwithstanding the recognized immunity of foreign heads of state.Footnote 23 The District Court of the Hague distinguished Taylor from Zeyada's civil proceeding by emphasizing that the premise of the SCSL's decision rested on the understanding that international courts do not function horizontally, and as such, the principle of equality of States did not apply.Footnote 24 The court concluded that “[u]nlike for international courts, functional immunity from jurisdiction is the starting point for national courts”Footnote 25 because “national courts are organs of the state.”Footnote 26
Furthermore, the court referenced the case of Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), specifically the ICJ's assertion that the immunity of foreign officials before foreign national courts does not entail perpetrators of atrocities will benefit from impunity.Footnote 27 The District Court of the Hague noted Zeyada's claims that he did not have access to fair redress in Israel but nevertheless asserted that its holding would not result in the alleged perpetrators evading accountability.Footnote 28 In addition, the court emphasized that, in accordance with Article 6 of the European Convention on Human Rights, the right to a fair trial and access to a court are subject to limitations.Footnote 29
Finally, the District Court of the Hague concluded that, as international law presently stands, it is still a rule of customary international law for foreign national courts to accord functional immunity to former foreign officials with respect to acts taken in their official capacities.Footnote 30 Therefore, the District Court of the Hague declared itself incompetent to exercise jurisdiction over the Defendants because they were deemed to benefit from functional immunity. In accordance with Dutch law, Zeyada was ordered to pay the costs, even though he had already paid the highest price: the loss of his family members.Footnote 31
Part II. Conceptual Overview of Jus Cogens Norms and Immunities
As a foundation for an analysis of States’ obligations concerning jus cogens norms, it is useful to understand the development of jus cogens norms and the application of immunities from prosecution in cases alleging grave international crimes. The following sections explain the nature of jus cogens norms, the rationales behind established immunities from prosecution, and how past case law has considered the interaction between jus cogens norms and foreign officials’ immunities before national and international courts. Part I demonstrates that jus cogens norms preempt both conflicting customary international law and States’ treaty obligations, reflecting the universal affirmation that jus cogens norms occupy the highest status in the hierarchy of international law. Whether foreign officials’ immunities can continue to be recognized notwithstanding the alleged commission of grave international crimes is an area of international law currently in flux.
Jus Cogens Norms: Peremptory and Non-Derogable
As previously mentioned, jus cogens norms are norms of international law of a peremptory nature, from which there cannot be derogation.Footnote 32 For instance, the prohibition on torture is a universal prohibition among international States that has attained peremptory status; as such, all States must universally condemn the commission of torture, without exception.Footnote 33 Although jus cogens norms “represent fundamental rights in international law,”Footnote 34 a standard method for identifying which norms of international law have reached the status of jus cogens does not exist.Footnote 35 Nevertheless, the determination of whether a norm is considered a jus cogens norm is not a subjective determination; instead, scholars have proposed that consideration of the international community's degree of consensus is relevant.Footnote 36 However, in contrast to the establishment of rules of customary international law, which require widespread state practice and opinio juris,Footnote 37 jus cogens norms do not necessarily require the consensus of all the States who are to be bound.Footnote 38 The prohibitions of various international crimes widely considered to have achieved jus cogens statusFootnote 39 include the prohibitions on torture,Footnote 40 genocide,Footnote 41 war crimes,Footnote 42 and forced disappearances.Footnote 43
As the Vienna Convention on the Law of Treaties (VCLT) recognizes, no derogation is allowed for peremptory norms and only a new peremptory norm can displace a former one.Footnote 44 As originally formulated in the VCLT, jus cogens norms necessarily invalidate conflicting treaties.Footnote 45 Although the VCLT did not consider whether jus cogens norms similarly supersede conflicting rules of customary international law, it has since been generally accepted that jus cogens norms occupy the highest status of international law—preempting both rules of customary international law and treaties.Footnote 46
Furthermore, the peremptory status of prohibitions of certain international crimes as jus cogens norms of international lawFootnote 47 endow States with the right to investigate, prosecute, and punish derogations. The International Criminal Tribunal for the Former Yugoslavia (ICTY), in Prosecutor v. FurundjizaFootnote 48 highlights that the character of the crime of torture, the prohibition of which has attained the universal status as a peremptory norm, “vests in every State the authority to try and punish those who participated in their commission.”Footnote 49 Furundzija concerns the torture and degrading treatment of a Muslim woman who was subjected to multiple rapes and physical beatings by uniformed soldiers for the purposes of obtaining information.Footnote 50 In analyzing the condemnation of torture in international law, the ICTY reasoned that
“the mere fact of keeping in force or passing legislation contrary to the international prohibition of torture generates international State responsibility. The value of freedom from torture is so great that it becomes imperative to preclude any national legislative act authorizing or condoning torture or at any rate capable of bringing about this effect.”Footnote 51
The ICTY recognized that peremptory norms “restrict the normally unfettered treaty-making power of sovereign States,” and subsequently occupy the top position in the “international hierarchy.”Footnote 52 As such, “it would be inconsistent on the one hand to prohibit torture to such an extent . . . and on the other hand bar States from prosecuting and punishing those torturers who have engaged in this odious practice.”Footnote 53 Consequently, the ICTY characterized the jus cogens norm prohibiting torture to impart on States the authority to “investigate, prosecute and punish or extradite individuals accused of torture.”Footnote 54 Nevertheless, the right to investigate, prosecute, and punishment is ostensibly different from an obligation to do so.Footnote 55
Additionally, universal jurisdiction reflects the universal nature of the prohibitions of particular international crimes that “shock[ ] the conscience of nations.”Footnote 56 Universal jurisdiction allows for the extraterritorial criminal jurisdiction of national and international courts to try “grave offences against the law of nations itself.”Footnote 57 While the jurisdiction of national courts is generally limited to acts committed on a state's territory or by a state's national,Footnote 58 universal jurisdiction reflects the understanding that particularly grave offenses amounting to jus cogens norms should allow for the extraterritorial extension of courts’ jurisdictions to aid in the universal condemnation of such heinous crimes.Footnote 59
Although the scope of obligations arising from the status of international norms as peremptory continues to be in a state of flux,Footnote 60 several court decisions appear to signify that the universal condemnation of certain crimes, such as torture and genocide, impart positive obligations on States.Footnote 61 Therefore, certain mechanisms, such as amnesty provisions, in preventing the prosecution of perpetrators, have been held invalid.Footnote 62 For instance, although Furundzija did not involve facts concerning an amnesty law, the ICTY reasoned that amnesties constitute national measures that are inconsistent with the fundamental prohibition of torture.Footnote 63 The ICTY reasoned that “[i]t would be senseless to argue, on the one hand, that on account of the jus cogens value of the prohibition against torture, treaties or customary rules providing for torture would be null and void . . . and then be unmindful of a State say, taking national measures authorizing or condoning torture or absolving its perpetrators through an amnesty law.”Footnote 64 Therefore, national measures that either condone or absolve perpetrators of grave international crimes, the prohibition of which are jus cogens norms, are fundamentally invalid. The invalidation of amnesty provisions necessarily results from the understanding that jus cogens norms impart the positive obligations on States to effectively prohibit derogations, and the Inter-American Court of Human Rights remains the judicial body that has gone the farthest in this interpretation of jus cogens norms.
The Inter-American Court of Human Rights has held in multiple cases that jus cogens norms impart positive obligations on States, invalidating conflicting amnesty laws and requiring that States take certain measures to ensure the prosecution of derogations.Footnote 65 The Inter-American Court of Human Rights is a regional judicial body whose jurisdiction is premised on state parties’ ratification of the American Convention.Footnote 66 As such, the court's decisions are often narrowly read in accordance with the obligations enshrined in the Convention.Footnote 67 Nevertheless, the Inter-American Court of Human Rights has continued to expand the scope of its rationales to include understandings of international law beyond the scope of the Convention.
The interpretations of jus cogens norms and their corresponding obligations by the Inter-American Court of Human Rights are leading examples of how to concretely conceptualize States’ obligations to never derogate from jus cogens norms. For instance, in Barrios Altos v. Peru,Footnote 68 the Inter-American Court of Human Rights held that amnesty provisions “designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture . . . and forced disappearance, all of them prohibited because they violate non-derogable rights . . . .”Footnote 69 Barrios Altos concerned the brutal massacre of fifteen individuals at the hands of “the Peruvian Army who were acting on behalf of the ‘death squadron’ known as the ‘Colina Group.’”Footnote 70 Following the initiation of investigative proceedings, Peru's Congress adopted an amnesty law “which exonerated members of the army, police force and also civilians who had violated human rights or taken part in such violations from 1980 to 1995 from responsibility.”Footnote 71 Thereafter, Peru's Congress adopted an additional amnesty law, declaring that the “amnesty could not be ‘revised’ by judicial instance and that its application was obligatory” and “expand[ing] the scope of [the previous amnesty] . . . to all military, police or civilian officials who might be the subject of indictments for human rights violations . . . even though they had not been charged.”Footnote 72 The Inter-American Court considered the alleged “torture, extrajudicial summary or arbitrary execution and forced disappearance” to be “serious human rights violations” because “they violate non-derogable rights recognized by international human rights law.”Footnote 73 Although the Inter-American Court did not specify that the prohibitions of the alleged crimes were presently jus cogens norms, the language of the court, in referencing that the alleged crimes “violate non-derogable rights,” indicates that the court considered the prohibitions of the alleged crimes to be so fundamental that derogations were impermissible.Footnote 74 Consequently, the national amnesty laws in Peru were held to be invalid.Footnote 75 Barrios Altos set a precedent that national amnesty provisions inherently conflict with international human rights law “if they eliminate individuals’ responsibility for non-derogable rights.”Footnote 76 The Inter-American Court recognized that the non-derogable status of certain international crimes reflects a universal condemnation that cannot be evaded through national amnesty laws.Footnote 77 Although the Barrios Altos decision can be read to have been narrowly based on the obligations enshrined in the American Convention, to which the defendant state was a party, the reasoning of the judges rests on the understanding that certain rights are non-derogable, signifying that national and international measures that eliminate individuals’ responsibility are unacceptable.Footnote 78
Additionally, in La Cantuta v. Peru,Footnote 79 the Inter American Court of Human Rights assessed the Peruvian amnesty laws that had yet to be repealed following the Barrios Altos decision as they related to the illegal and arbitrary detention, torture, and extralegal executions and disappearances of multiple students and a professor from La Cantuta University,Footnote 80 In June of 1992, the Peruvian army forcefully entered the residences of several students and that of a professor.Footnote 81 The Peruvian amnesty that was in force at the time was the same amnesty invalidated in Barrios Altos,Footnote 82 granting amnesty to “any military and police office and civilians, whether subjected to report proceedings, inquiry, formal investigation, criminal proceedings or conviction of an ordinary offence, under either civil or military jurisdiction.”Footnote 83 Identifying access to justice as a jus cogens norm, the court interpreted there to be a corresponding erga omnes obligation “to adopt all such measures as are necessary to prevent such violations from going unpunished.”Footnote 84 Therefore, the court reaffirmed the judgement in Barrios Altos that the Peruvian amnesty laws was invalid.Footnote 85
Similarly, in Almonacid-Arellano y otros v. Chile,Footnote 86 the Inter-American Court of Human Rights considered the failure of Chile to investigate and punish the perpetrators of an extra-legal execution in accordance with Chile's amnesty law.Footnote 87 The facts presented by the case establish that a military coup overthrew the President Salvador Allende's government in September 1973 and commenced “[w]idespread repression against alleged opponents to the regime . . . until the end of the military rule.”Footnote 88 Extra-legal and arbitrary executions, torture, and forced disappearances were characteristic of the repressive regime.Footnote 89 Arrested at his house, Mr. Almonacid-Arellano was shot by the individuals who captured him before placing him into a police truck and transporting him to a hospital where he died the following day.Footnote 90 The de facto government of Chile issued an amnesty to “all individuals who performed illegal acts, whether as perpetrators, accomplices or accessories after the fact” and “individuals who . . . have been sentenced by military courts.”Footnote 91 The Inter-American Court considered the prohibition of crimes against humanity to be a jus cogens norm; therefore, the extra-legal execution of Mr. Almonacid-Arellano, an execution by state agents amidst a pattern of violence against the civilian populous, was a universally prohibited crime.Footnote 92 The court referenced the holding of Barrios Altos that all amnesty provisions designed to eliminate responsibility are without legal effect, and consequently held that “States cannot neglect their duty to investigate, identify, and punish those persons responsible for crimes against humanity by enforcing amnesty laws or any other similar domestic provisions. Consequently, crimes against humanity are crimes which cannot be susceptible of amnesty.”Footnote 93 In analyzing the obligations of the American Convention, the Court specifically held that the Chilean amnesty laws perpetuated impunity and were “overtly incompatible with the spirit of the American Convention.”Footnote 94 However, the court additionally held that the extra-legal execution is a crime against humanity, and thus “cannot be susceptible of amnesty pursuant to the basic rules of international law.”Footnote 95 The court concluded that the Chilean amnesty was inadmissible since “crimes against humanity are intolerable in the eyes of the international community.”Footnote 96
Furthermore, in Goiburu v. Paraguay,Footnote 97 the Inter-American Court of Human Rights emphasized the obligations that arise from jus cogens norms.Footnote 98 Goiburu concerned the “systematic practice of arbitrary detention, prolonged imprisonment without trial, torture and cruel, inhuman and degrading treatment, death during torture, and the political assassination of individuals who were said to be ‘subversive’ or against [General Alfredo Stroessner's dictatorship].”Footnote 99 The forced disappearances, torture, and killings of Augustin Goiburu Gimenez, Carlos Jose Mancuello Barreiro, Rodolfo Ramirez Villalba, and Benjamin Ramirez Villalba all occurred during Stroessner's regime and were subsequently considered by the Inter-American Court of Human Rights in one court proceeding.Footnote 100 Following in the footsteps of Barrios Altos, the court held that the “committed acts were considered violations of jus cogens and held to entail the activation of national and international measures, instruments, and mechanisms to ensure their effective prosecution and sanction.”Footnote 101 The Court held that the obligations erga omnes resulting from jus cogens norms have a broad scope and “States are obliged to investigate human rights violations and prosecute and punish those responsible.”Footnote 102 Goiburu represents yet another case in the Inter-American Court of Human Rights jurisprudence where the Court went beyond analysis of the American Convention to comment on the scope of obligations arising from the peremptory nature of jus cogens norms.
In contrast to the approach of the Inter-American Court of Human Rights, the International Court of Justice in Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal),Footnote 103 limited the duty to institute prosecutions of alleged acts of torture to those that occurred once the Convention Against Torture came into force.Footnote 104 As demonstrated, the nature of obligations arising out of jus cogens norms have yet to be uniformly determined; as such, jus cogens norms remain potentially powerful norms of international law whose application to other established mechanisms and rules of international law still need to be determined if jus cogens norms are to be fully realized as universal condemnations fundamental to the international community.
State Immunity and Foreign Officials’ Immunities: Rationales and Limitations
A dominant rationale for the immunity of sovereign States is that it operates to ensure respect for sovereign States and to promote good relations among them.Footnote 105 The immunity of States from the jurisdiction of foreign courts derives from the principle “par in parem non habet imperium,” meaning “equals have no sovereignty over each other.”Footnote 106 As such, States cannot assert jurisdiction over the affairs of other States without their consent.Footnote 107 State immunity has been previously interpreted to be absolute in nature; however, most countries now recognize a more restrictive approach to state immunity.Footnote 108 Although limited exceptions to state immunity have been recognized regarding commercial transactions and in certain employment contexts,Footnote 109 the immunity of States from foreign courts continues to be upheld as a norm of customary international law in cases where States allegedly derogate from peremptory norms.Footnote 110
Although the immunity of foreign officials from national jurisdiction derives from state immunity, foreign officials’ immunities are distinct from the immunity of a state.Footnote 111 Nevertheless, States can explicitly waive the immunities of their officials.Footnote 112 Immunity ratione personae and immunity ratione materiae are the two forms of immunity from which foreign officials can benefit.Footnote 113
First, the personal immunity of state officials, immunity ratione personae, is a status-based immunity that precludes the prosecution of sitting heads of state, heads of government, and foreign ministers.Footnote 114 Accordingly, during their tenure in office, certain senior state officials cannot be prosecuted before foreign national courts.Footnote 115 Immunity ratione personae is considered a status-based immunity because it attaches to the status of the official as a high ranking officer.Footnote 116 One rationale for this attachment of immunity is that the official status of the individual “directly and automatically assigns them the function of representing the state in its international relations.”Footnote 117 Accordingly, senior officials “hold positions symbolically personifying the State” and thus require an extensive immunity akin to that of the state.Footnote 118 The personal immunity of sitting heads of state is virtually absolute, covering both their personal and official acts.Footnote 119 Consequently, immunity ratione personae is a broad immunity, applicable “to all actions of the official, regardless of whether they were carried out in connection with his/her official duties and regardless of whether he/she held a public office at the time of committing such actions.”Footnote 120 The contemporary justification for immunity ratione personae is that virtually absolute immunity is essential for senior state officials to carry out their official duties.Footnote 121 Therefore, immunity ratione personae is temporally limited and ceases to apply once that individual leaves office.Footnote 122
On the other hand, the functional immunity of state officials, immunity ratione materiae,Footnote 123 is a limited form of immunity that does not cover the acts of foreign officials committed in their personal capacities.Footnote 124 In addition to being the immunity that attaches to lower-ranked officials engaged in official acts, immunity ratione materiae is the immunity that persists after senior-level officials leave office.Footnote 125 However, in contrast to the status-based immunity senior level officials benefit from by virtue of their official position in a state, functional immunity attaches to individuals’ actions.Footnote 126 Sometimes referred to as conduct-based immunity, immunity ratione materiae attaches to the official's conduct as part of his/her/their official duties.Footnote 127 One rationale for immunity ratione materiae is that it covers an individual's official acts “since these actions are the actions of the state itself, in whose service they act.”Footnote 128 It has been explained that, since official acts are attributable to the state, “the state is entitled to claim such acts as its own, so that the individual organ may not be held accountable for those acts.”Footnote 129 Furthermore, certain rationales support functional immunity for fear of courts bypassing the immunity of state through the prosecution of its officers.Footnote 130 Although immunity cannot “always protect[] state agents and former officials from suit in other States’ courts,”Footnote 131 the scope and applicability of functional immunity have yet to be uniformly defined.Footnote 132
Mapping the Interaction between Jus Cogens Norms and Immunities: Proposed Exceptions to State and Foreign Officials’ Immunities before National and International Courts
Although state immunity and foreign officials’ immunities from prosecution are well-established norms of customary international law, exceptions to such immunities continue to be heavily advocated for, particularly in cases concerning alleged derogations from jus cogens norms.Footnote 133 For example, some have argued that States whose officials violate jus cogens norms “implicitly waive” the officials’ immunity.Footnote 134 The implicit waiver theory builds on the ICJ's statement in Arrest Warrant that foreign officials’ immunities could be waived.Footnote 135 The dissent in Princz v. Federal Republic of GermanyFootnote 136 applied the implicit waiver theory in its determination that Germany waived its state immunity when it violated the jus cogens norms prohibiting genocide and slavery.Footnote 137 The claimant's central argument was that Germany waived its immunity in accordance with the commercial activity exception under the Foreign Sovereign Immunities Act (FSIA), and, in the alternative, waived its immunity by engaging in gravely reprehensible acts.Footnote 138 Although the majority in Princz did not explicitly rely on the implicit waiver theory, the court suggested it would support an implicit waiver.Footnote 139
Although there are multiple arguments for and conceptualizations of limitations of state immunity, attempts to limit the immunity of States have generally proven unsuccessful. For instance, in Al-Adsani v. United Kingdom,Footnote 140 the claimant instituted civil proceedings for compensation against the Sheikh and State of Kuwait for the physical and mental injury he suffered from the torture inflicted on him in Kuwait and the threats to his life that he received upon relocating to England.Footnote 141 The claimant was a pilot in Kuwait when three individuals entered his home, forced him at gun point to come with them, falsely imprisoned him, and subjected him to various forms of torture from which he suffered a severe form of post-traumatic stress disorder.Footnote 142 The European Court of Human Rights (ECHR) recognized that the alleged torture amounted to a serious international crime; nevertheless, it deemed itself unable to hold that there was sufficient state practice or judicial authority to conclude that States do not enjoy immunity from suit for alleged acts of torture.Footnote 143 Similarly, in Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening),Footnote 144 the ICJ concluded that the alleged violations of jus cogens norms did not affect the applicability of the rule of customary international law governing state immunity.Footnote 145 In addition, the ECHR, in Jones v. United Kingdom,Footnote 146 held that there was not an established exception in international law to state immunity for Saudi Arabian officials sued for alleged acts of torture.Footnote 147 State immunity, as a fundamental principle of international law, has proven itself unamenable to limitation in cases alleging even the most serious of international crimes.Footnote 148
In contrast to state immunity, foreign officials’ immunities have been subject to certain limitations. For example, several court decisions and statutes of international tribunals have recognized that neither immunity ratione personae nor immunity ratione materiae can bar prosecutions before international tribunals.Footnote 149 The immunities of foreign officials have been limited before international tribunals because international tribunals are not organs of any particular State, and as such, their exercise of jurisdiction does not challenge the equal sovereignty of States.Footnote 150
In contrast, proposed limitations to immunity ratione personae before foreign national courts have been generally unsuccessful.Footnote 151 The reasoning of the ICJ in Arrest Warrant Footnote 152 reflects the rationale that subjecting officers who benefit from immunity ratione personae to legal proceedings would interfere with their official duties.Footnote 153 As such, the ICJ pronounced that immunity ratione personae cannot be limited in cases of alleged jus cogens violations before foreign national courts.Footnote 154 Arrest Warrant concerned a complaint by the Democratic Republic of the Congo (DRC) that Belgium violated the sovereign equality of States in issuing an arrest warrant for a sitting Minister for Foreign Affairs on charges of crimes against humanity and offenses that breached the Geneva Conventions of 1949.Footnote 155 In assessing the immunity of the DRC's foreign minister, the ICJ explained that immunities are accorded to foreign ministers because they “occupy a position such that, like the Head of State or the Head of Government, he or she is recognized under international law as representative of the State solely by virtue of his or her office” and require immunity “to ensure the effective performance of their functions on behalf of their respective States,” not “for their personal benefit.”Footnote 156 Therefore, the ICJ accorded Ministers for Foreign Affairs immunity ratione personae since proceedings against them would impede the exercise of their official functions.Footnote 157
In concluding that foreign ministers benefit from immunity ratione personae, the ICJ emphasized that “immunity from jurisdiction . . . does not mean that [Ministers for Foreign Affairs] enjoy impunity in respect of any crimes they might have committed, irrespective of their gravity.”Footnote 158 The ICJ distinguished between immunity and impunity by highlighting the procedural nature of immunity from jurisdiction in contrast to the substantive nature of criminal responsibility.Footnote 159 The ICJ reasoned that foreign ministers will not benefit from impunity since they could be tried by their national courts or before “certain international tribunals.”Footnote 160 In addition, foreign national courts could assert jurisdiction if the official's home state waives the individuals’ immunity.Footnote 161 Furthermore, the court emphasized that immunity ratione personae ceases once the individual is out of office, at which point acts committed in a private capacity would be subject to jurisdiction.Footnote 162 Therefore, Belgium's issuance of a warrant for the foreign minister of DRC was held to violate Belgium's obligation to respect the immunity of the DRC's Minister for Foreign Affairs.Footnote 163 Arrest Warrant unequivocally reflected that immunity ratione personae is afforded to foreign ministers notwithstanding the gravity of the alleged crimes.
Although the ICJ foreclosed limitations to immunity ratione personae in Arrest Warrant, attempts to demonstrate exceptions to the applicability of foreign officials’ immunity ratione materiae before foreign national courts when there are allegations of international crimes continue to be proposed. For instance, it has been reasoned that immunity ratione materiae cannot apply in cases of international crimes because international crimes are outside the scope of an individual's official duties.Footnote 164 And although Jurisdictional Immunities is often cited to support arguments that the immunities of States and their officials cannot be limited, even regarding the most vicious of international atrocities, the ICJ emphasized that its holding only concerned the immunities of the state.Footnote 165 The court did not address the immunities of foreign officials.Footnote 166 As such, the ICJ did not foreclose the possibility of limitations to foreign officials’ immunities from arising.
Accordingly, in 2017, the ILC provisionally adopted Draft Article 7 on the immunity of state officials from foreign criminal jurisdiction, which attempts to demonstrate an exception to immunity ratione materiae for international crimes.Footnote 167 The proposed exceptions reads as follows:
“(1) Immunity shall not apply in relation to the following crimes: (a) genocide, crimes against humanity, war crimes, torture and enforced disappearances; (b) crimes of corruption; (c) crimes that cause harm to persons, including death and serious injury, or to property, when such crimes are committed in the territory of the forum state and the state official is present in said territory at the time that such crimes are committed. (2) Paragraph 1 shall not apply to persons who enjoy immunity ratione personae during their term of office.”Footnote 168
The Commission supported its exception to immunity ratione materiae with reference to national laws that already provide for such an exception.Footnote 169 Numerous scholars have explained that, although commendable, the ILC's efforts do not reflect a new rule of customary international law.Footnote 170 Rather, the referenced trend of States increasingly denying foreign officials’ immunity ratione materiae when they are alleged to have committed international crimes is a fortunate turn of events and an example of the ILC's progressive development of the law.Footnote 171 Although the ILC's Draft Article 7 is met with criticism and the proposed exception to immunity ratione materiae does not appear to be currently accepted as a rule of customary international law,Footnote 172 the ILC did cite limited state practice which reflects that the application of immunity ratione materiae is shifting. It might be that “it is only a question of time before courts adopt a more restrictive approach to sovereign immunity in respect of governmental acts constituting international crimes in violation of jus cogens norms;”Footnote 173 in the interim, it is necessary to explore other avenues of establishing the inapplicability of immunity ratione materiae for allegations of severe international crimes.
Part III. Reframing the Peremptory Status of Jus Cogens Norms as Fundamentally Incompatible with Functional Immunity Before Foreign National Courts
This Article argues that granting functional immunity to foreign officials alleged to have violated a jus cogens norm is incompatible with the peremptory nature of the norm. Similar to impermissible amnesty provisions that allow perpetrators to evade accountability, officials who benefit from functional immunity currently evade prosecution, even for the gravest of international crimes. Therefore, the status of the universal condemnation of certain international crimes as jus cogens norms mandates the elimination of functional immunity before foreign national courts. Part A of this section argues that functional immunity is incompatible with States’ duties to effectively prohibit derogations from jus cogens norms because foreign national courts’ invocation of functional immunity operates similar to the amnesty provisions held invalid by the Inter-American Court of Human Rights. Subsequently, Part B applies this Article's thesis to the Air Strike case and stipulates that the District Court of the Hague erred in its invocation of functional immunity to bar Zeyada's civil suit for the wrongful killings of his family during a military operation in the Gaza Strip.
The Incompatibility of Officials’ Immunity from Prosecution with the Universal Condemnation of Derogations from Jus Cogens Norms
As reflected by the jurisprudence of the Inter-American Court of Human Rights concerning amnesty provisions, jus cogens norms obligate States to effectively prohibit derogations, and therefore, invalidate conflicting rules that prevent the absolute prohibition of derogations.Footnote 174 The Inter-American Court of Human Rights has interpreted the non-derogable nature of jus cogens norms to necessitate the effective prosecution of perpetrators of grave international crimes that derogate from such norms because the status of jus cogens norms—the highest status in the hierarchy of the international legal order—would be meaningless if States did not have a corresponding obligation to ensure the effective prohibition of these crimes through prosecution and investigation.Footnote 175
Jus cogens norms cannot be circumvented by conflicting mechanisms, norms, or rules that permit derogations from jus cogens norms from being sufficiently prohibited.Footnote 176 Similar to the amnesty provisions in Barrios Altos, La Cantuta, and Almonacid-Arrellano, state officials’ immunity ratione materiae conflicts with jus cogens norms because it allows for individuals who are alleged to have committed crimes universally condemned by the international community to be shielded from prosecution.Footnote 177 As Barrios Altos emphasized, amnesty laws are fundamentally incompatible with jus cogens norms prohibiting certain international crimes precisely because they allow individuals to evade responsibility for derogations from peremptory norms of international law.Footnote 178 The amnesty laws in Barrios Altos and La Cantuta prevented the “investigation and punishment of those responsible for serious human rights violations such as torture . . . and forced disappearance, all of them prohibited because they violate non-derogable rights.”Footnote 179 As compared with amnesty provisions that have been held to be without legal effect, functional immunity similarly operates as a bar to the criminal and civil jurisdiction of foreign national courts and allows individual perpetrators to evade accountability. The Peruvian amnesties in Barrios Altos and La Cantuta were held by the Inter-American Court of Human Rights to be invalid because they violated the obligations enshrined in the American Convention and were fundamentally inconsistent with the nature of jus cogens norms. Similarly, the Chilean amnesty in Almonacid-Arellano was deemed invalid because crimes against humanity, the prohibition of which was recognized as a jus cogens norm, “cannot be susceptible of amnesty” and “are intolerable in the eyes of the international community.” In extending its rationale beyond the American Convention, the Inter-American Court emphasized that crimes against humanity are an affront to the international community “as a whole,” not just state parties to the American Convention. Additionally, when explaining the nature of jus cogens norms, the Inter-American Court has repeatedly asserted that peremptory norms “give rise to obligations erga omnes,”Footnote 180 obligations that are owed to the entire international community, not just those who have ratified an international convention.Footnote 181 Jus cogens norms occupy the highest status in the hierarchy of international law, and as such, the prohibition of derogations from jus cogens norms cannot be circumvented by amnesty laws or functional immunity that would serve to erode the universal nature of the prohibitions of derogations.
Rather than institute national measures to ensure the effective prohibition of derogations from jus cogens norms, foreign national courts’ continued recognition of foreign officials’ immunity ratione materiae allows perpetrators to evade prosecution, and subsequently contributes to the erosion of the universal prohibition and condemnation of derogations from jus cogens norms.Footnote 182 As the Inter-American Court of Human Rights held in Goiburu, the peremptory status of jus cogens norms requires that effective prosecution and sanction are ensured through the activation of national and international measures.Footnote 183 The functional immunity of foreign officials operates to prevent the prosecution of foreign officials before foreign national courts. As such, the required prosecution of perpetrators of grave international crimes is prevented by such a procedural rule that allows perpetrators to evade prosecution simply due to their current or former positions as state officials. Such evasion of individuals’ accountability amounts to States’ abdication of responsibility in prohibiting derogations from jus cogens norms.Footnote 184
Therefore, the continued recognition of functional immunity in cases alleging derogations from jus cogens norms can contribute to the situation of impunityFootnote 185 in allowing perpetrators to evade responsibility. Although the ICJ reasoned in Arrest Warrant that the grant of immunity ratione personae to foreign ministers before foreign national courts would not amount to foreign ministers’ evasion of responsibility since they could be prosecuted in their country's own national courts and before “certain” international tribunals,Footnote 186 this line of reasoning is inconsistent with States’ obligations to effectively prohibit derogations from jus cogens. Granting officials immunity on the assumption that other courts may be able to prosecute is an abdication of States’ international responsibility to ensure derogations from jus cogens norms are not allowed.Footnote 187 In addition, in contrast to immunity ratione pe rsonae, which necessarily will cease to protect certain officials, immunity ratione materiae continues to protect officials from prosecution beyond their tenure in office.Footnote 188 Furthermore, the ICJ's reasoning in Arrest Warrant disregards the instances in which accountability is foreclosed by the refusal of the official's state to prosecute and the inability of an international tribunal to exercise jurisdiction.Footnote 189
The reasoning of the Inter-American Court of the Human Rights in invalidating conflicting measures and rules of customary international law that allow for derogations from jus cogens norms to remain unpunished is applicable to the doctrine of functional immunity, which operates as a procedural bar to foreign national courts’ jurisdiction. As Furundzija stipulated in its assessment of the prohibition of torture, “[i]t would be senseless to argue, on the one hand, that on account of the jus cogens value of the prohibition against torture, treaties or customary rules providing for torture would be null and void . . . and then be unmindful of a State say, taking national measures authorizing or condoning torture or absolving its perpetrators through an amnesty law.”Footnote 190 Similarly, it is illogical to understand peremptory norms as norms which occupy the highest status in the international hierarchical order and that necessarily preempt both conflicting treaty obligations and rules of customary international law and then allow, in cases alleging the very derogations from jus cogens norms supposedly universally prohibited, to evade prosecution on a sheer technicality. Because the prohibitions of war crimes, crimes against humanity, genocide, and torture are examples of jus cogens norms,Footnote 191 functional immunity is inapplicable in cases alleging the commission of such international crimes because States cannot abdicate their obligations to ensure derogations from jus cogens norms are universally and strictly prohibited.
Applying the Obligations to Effectively Prohibit Derogations from Jus Cogens Norms to the District Court of the Hague's Dismissal of a Civil Suit Concerning Alleged War Crimes
In Air Strike, Zeyada claimed two former military officers carried out a military air strike in the Gaza strip that targeted civilian populations—an act that might amount to a war crime.Footnote 192 In applying this Article's thesis that functional immunity is incompatible with States’ obligations to effectively prevent derogations from jus cogens norms to Air Strike, the District Court of the Hague has a positive obligation to effectively prohibit derogations from the peremptory norm of international law prohibiting the commission of war crimes.Footnote 193 As such, the District Court of the Hague erred in dismissing Zeyada's civil suit on grounds of the Defendants’ functional immunity.
In establishing that functional immunity remains a norm of customary international law applicable to Zeyada's suit, the District Court of the Hague erroneously relied on cases upholding the immunity of States and overlooked the possibility that functional immunity could be negated by anything other than a new rule of customary international law. A large majority of the District Court of the Hague's analysis in Air Strike revolved around discussions of cases in which derogations from jus cogens norms were alleged and state immunity was nevertheless upheld. However, in referencing Al-Adsani and Jurisdictional Immunities, the District Court of the Hague addressed cases of state immunity, a norm of customary international law that operates distinctly from foreign officials’ immunities.Footnote 194 Furthermore, in reference to Jones, the District Court of the Hague focused on the inability of the ECHR to recognize a customary rule of international law that codifies an exception to immunity ratione materiae.Footnote 195 Nevertheless, as the ECHR itself recognized in Jones and the District Court of the Hague conceded, “state practice is in a state of flux with evidence of both the grant and refusal of immunity ratione materiae.”Footnote 196 Additionally, the District Court of the Hague presupposed that immunity ratione materiae can only be limited by the development of a new rule of customary international law.Footnote 197 As such, the District Court of the Hague believed its interpretation of the ILC's proposed exception to immunity ratione materiae in Draft Article 7 as merely reflecting a progressive development of the law rather than the widespread state practice and opinio juris required for the development of a rule of customary international law to demonstrate that functional immunity remains an established norm.Footnote 198 Nevertheless, the condemnation of certain international crimes are of such a universal nature that even obligations willingly entered into by state parties through treaties are necessarily invalidated. As such, similar to the reasoning applied by the court in Furundzija,Footnote 199 it is illogical for certain prohibitions of crimes to be so universal while still allowing for measures and mechanisms to allow for their commission.Footnote 200
Similar to the amnesties in Barrios Altos,Footnote 201 La Cantuta,Footnote 202 and Almonacid-Arellano,Footnote 203 the District Court of the Hague's invocation of functional immunity bars the prosecution of alleged perpetrators. In Barrios Altos and La Cantuta, Peru had granted perpetrators of a brutal massacre certain amnesties that precluded their prosecution before national courts.Footnote 204 Similarly, the invocation of functional immunity effectively operates to preclude the prosecution of alleged perpetrators of grave international crimes before foreign national courts. The Peruvian amnesties in Barrios Altos and La Cantuta were held impermissible precisely because they allowed perpetrators to evade accountability. By invoking the functional immunity of the defendant military officers, the District Court of the Hague similarly allowed perpetrators to evade responsibility for their alleged crimes.Footnote 205
Additionally, the District Court of the Hague supported its dismissal with reference to the assertion in Arrest Warrant that the absence of jurisdiction before one court does not necessitate perpetrators of alleged crimes will benefit from impunity.Footnote 206 However, in allowing the perpetrators of grave international crimes to evade responsibility due to a procedural rule of immunity, the District Court of the Hague failed to appreciate the particularly grave nature of the alleged crimes, the commission of which is so universally prohibited that it has achieved the status of a jus cogens norm. The allowance of alleged perpetrators to evade prosecution on the assumption that other courts may be able to prosecute amounts to an abdication of the state's obligation to prohibit derogations from jus cogens norms.Footnote 207
The District Court of the Hague essentially overlooked the grave nature of the alleged crime in Air Strike and allowed the invocation of functional immunity to bar Zeyada's prosecution of the defendant military officers who killed his family. The Inter-American Court of Human Rights has made strides in establishing that jus cogens norms necessarily invalidate national measures which allow derogations to be permitted and the perpetrators to evade accountability.Footnote 208 The analysis applied by the Inter-American Court to invalidate amnesty provisions similarly necessitates the denial of functional immunity in cases alleging derogations form jus cogens norms. Furthermore, the Inter-American Court of Human Rights held in Goiburu that impermissibility of derogations from jus cogens norms requires States to positively implement measures “to ensure that such violations do not remain unpunished.”Footnote 209 Rather than implement measures to ensure the appropriate punishment of perpetrators who commit grave international crimes, the District Court of the Hague allowed functional immunity to operate as a norm which prevents the prohibition. In allowing Zeyada's suit to be dismissed, the District Court of the Hague allowed a norm of customary international law to operate similar to the Peruvian amnesties held legally invalid in Barrios Altos and La Cantuta. Consequently, the District Court of the Hague erred in dismissing Zeyada's complaint because the immunity ratione materiae of the Defendants as former military officials is inapplicable when the complaint alleges derogations from jus cogens norms.Footnote 210 The court's invocation of immunity for an alleged derogation from a jus cogens norm is incompatible with the Netherlands’ international legal obligation to the international community to uphold the universal prohibition of war crimes.
Limitations and Recommendations
First, this Article's argument only applies to immunity ratione materiae because the rationale for immunity ratione personae even in cases of alleged derogations from jus cogens continues to have some salience. Sitting high level officials like the head of state, head of government, and foreign minister must be capable of travelling and conducting their operations without the fear of prosecution—a fear that arguably subsides once they leave office. Furthermore, immunity ratione personae before foreign national courts, while admittedly slowing the wheels of justice, does not violate the obligation owed to the international community to effectively prohibit derogations from jus cogens because it is temporally limited.Footnote 211
Furthermore, the breach of the obligation erga omnes to effectively prohibit derogations from peremptory norms is akin to the breach of a rule of customary international law and should be similarly remedied. Per the Restatement (Third) of the Foreign Relations Law of the United States, when a state violates a rule of customary international law, the state must immediately stop the violation, vow to not repeat the violation, and provide reparations if applicable.Footnote 212 Similarly, in the context of cases where functional immunity is raised, this article recommends that it be mandated upon States to deny the existence of foreign officials’ functional immunity when a violation of jus cogens norms are alleged. Consequently, if Air Strike is appealed, the respective court should overrule the District Court of the Hague's dismissal of Zeyada's civil suit against former Israeli military officials on the basis of their functional immunity since Zeyada's complaint is premised on international crimes that could amount to war crimes,Footnote 213 the prohibition of which is a jus cogens norm.Footnote 214
Lastly, this article's argument only applies to international crimes whose prohibitions have achieved jus cogens status and does not include crimes which have not achieved such a peremptory status. Therefore, it is necessary to continue to support the commendable work of the International Law Commission to establish that a general exception to immunity ratione materiae before foreign national courts has crystallized into a rule of customary international law for a wider range of international crimes.
Conclusion
Torture, genocide, and war crimes are among the abhorrent international crimes that the international community has agreed to universally condemn.Footnote 215 Consequently, States, in addition to being obligated to stand as a united front in the condemnation of derogations from the jus cogens norms prohibiting such crimes, are under the affirmative obligation erga omnes to effectively prohibit derogations.Footnote 216 Jus cogens norms are those from which the international community does not permit derogation.Footnote 217 As such, it is illogical for States to allow for certain procedural rules to effectively condone such derogations by allowing perpetrators to evade prosecution on technicalities.Footnote 218
Foreign national courts’ invocation of functional immunity bars the prosecution of individuals simply due to their positions as state officials, and is incompatible with the obligation to prohibit derogation from peremptory norms of international law because it allows for exceptions to the universal condemnation of particularly grave international crimes. Therefore, the grant of functional immunity by foreign national courts is incompatible with States’ obligations to effectively prohibit derogations from jus cogens norms, and States should be held responsible for the breach of an international legal obligation owed to the international community as a whole.
Ismail Zeyada undoubtedly suffers from the devastating loss of family members—a loss that can never be fully alleviated. But, Zeyada additionally suffers in knowing that he is incapable of securing redress for the deaths of his family members. The District Court of the Hague, in dismissing Zeyada's civil suit, effectively signaled to Zeyada that he is without recourse. War crimes are particularly grave international crimes, the prohibition of which has attained the status of a jus cogens norm. Thus, the international community is under the obligation to ensure derogation from this universal prohibition of war crimes is not permitted. The District Court of the Hague dismissed Zeyada's suit because of the purported functional immunity of the Defendants as former military officials. In so doing, the Netherlands essentially permitted derogation from the universal prohibition of war crimes in allowing the perpetrators to escape trial simply due to their former positions as state officials. Allowing procedural norms of customary international law, such as functional immunity, to supersede the universal condemnation of derogations from jus cogens norms is incompatible with States’ obligations and should no longer be permissible as a method for state officials to evade accountability.
