1. Introduction
Few issues can be claimed to have dominated the recent attention of international law, both on academic and practical levels, like the law relating to immunities.Footnote 1 The discourse on immunities has focused particularly on the question whether international law, as it currently stands, recognizes exceptions to immunities and, if it does not, whether it should.
This debate on immunities, and particularly whether there are or should be exceptions to immunity, is a reflection of a broader tussle for the soul of international law.Footnote 2 In this debate, those seeking to build a brave new world in international law argue for less recognition of immunities and more recognition of exceptions to immunities.Footnote 3 This approach, it is imagined, will lead to a better, more humane world, in which those that commit atrocious acts against fellow human beings are held to account.Footnote 4 In this world, imagined by those holding out for the brave new international law, leaders, knowing that immunity will not protect them against accountability, will think twice before committing crimes against their own populations. On the other side of the spectrum are those that recall the words of the International Court of Justice (ICJ) that immunity does not mean impunity because, even without creating exceptions to immunity, there are avenues for justice and accountability.Footnote 5 For these commentators and actors, a better world depends on the stability of international relations and not on some nostalgic appeal to values.Footnote 6 They are inspired by the words of the ICJ that immunity ‘derive[s] from the principle of sovereign equality of States, which is … one of the fundamental principles of the international legal order’ and ‘occupies an important place in international law and international relations’.Footnote 7
This debate has played itself out also in the International Law Commission (the Commission) in its consideration of the topic of immunity of state officials from foreign criminal jurisdiction. In the Commission, the debate commenced in 2008 when the topic of immunities was placed on its agenda. The debate was particularly pointed in 2011 when the Commission considered then-Special Rapporteur Roman Kolodkin’s Second Report which was centred around the distinction between immunity ratione personae and immunity ratione materiae,Footnote 8 and in 2013 and 2017 when the Commission took particular decisions on the scope and exceptions of immunity under customary international law. In 2013, the Commission had to decide how wide to cast the scope of immunity ratione personae – the ‘all-powerful’ type of immunity that applies to both private and official acts committed by certain high-ranking officials. In other words, the Commission had to answer the question of which high-ranking officials would have the benefit of this all-powerful type of immunity. That round was won by those erring on the side of stability of international relations, with only three out of 34 members opposing the extension of immunity ratione personae beyond heads of state to all the troika (heads of state, heads of government and Minister for Foreign Affairs).Footnote 9 In 2017, during the Commission’s 69th session, the debate re-emerged, this time in the context of whether there were any exceptions to immunity from foreign criminal jurisdiction. Unlike the round on the scope of immunity ratione personae, this round would belong to those seeking a brave new world. In this round, against great resistance from some members, the Commission adopted Draft Article 7, which provided an exception for immunity ratione materiae in respect of certain core crimes under international law, such as genocide, crimes against humanity, war crimes, and enforced disappearances.Footnote 10 These are acts, the prohibition of which constitute violations of jus cogens norms – for convenience sake, I refer to these crimes as jus cogens crimes.
The significance of this decision is demonstrated in the tension and deep divisions in the Commission in the process of and following the adoption of Draft Article 7. The decision was arrived at after two votes – voting is a rare event in the Commission. The initial vote, an indicative one,Footnote 11 was required to send the Draft Article, as proposed by the Special Rapporteur in the Fifth Report, to the Drafting Committee. The adoption of Draft Article 7 by the Commission was made after a recorded vote accompanied by strongly worded explanations of vote.Footnote 12 In the vote, 21 members voted in favour of the Draft Article,Footnote 13 while eight members voted against,Footnote 14 with one member abstaining.Footnote 15 The outcome has already been the subject of a symposium published in AJIL Unbound, with contributions that, for the most part, criticize the Draft Article adopted by the Commission.Footnote 16
It is apposite to pause at this point to acknowledge that the disagreement within the Commission was not just about whether Draft Article 7 was acceptable or not. One of the key questions concerned how to characterize the Draft Article (if adopted). The Commission has a dual mandate, namely the codification of international law and its progressive development.Footnote 17 According to the Statute of the Commission, codification occurs where the Commission systematizes ‘rules of international law in fields where there already has been extensive State practice, precedent and doctrine’.Footnote 18 In other words, codification refers to circumstances where the rule in question is lex lata or hard law. Progressive development, on the other hand, applies to cases that ‘have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of States’.Footnote 19 In short, progressive development refers to instances where there is some practice but the practice would not, strictly speaking, meet the requirements for customary international law.Footnote 20 Rules advanced as progressive development may be ‘emerging rules’ but they have to have some basis in state practice. For supporters of Draft Article 7, the Draft Article constituted either codification or progressive development. However, in its practice, with some exceptions, the Commission has not generally identified individual provisions as either progressive development or codification.Footnote 21 Thus, even if Draft Article 7 were progressive development and not codification, identifying it as such would not only have the effect of discouraging its use, it would also be inconsistent with the general practice of the Commission. In its practice, the Commission has regarded ‘the distinction between the two processes as unworkable’ and has, rather, proceeded on the basis of a ‘composite idea of codification and progressive development’.Footnote 22 For members opposed to Draft Article 7, however, it constituted neither codification nor progressive development. In their view, Draft Article 7 constituted ‘new law’, which has no basis whatsoever in the practice of states and therefore ought not to be included. In their view, if adopted, Draft Article 7 had to be clearly classified as new law or, at best, progressive development.
There are probably many different ways to explain the shift from the ‘pro-stability’ to the ‘pro-brave new world’ approach in the Commission in the four years that elapsed between the adoption of Draft Article 3 on the scope of immunity ratione personae and Draft Article 7 on exceptions to immunity. It might, for example, be argued that the question of the scope of immunity ratione personae is different from the question of whether there are exceptions to immunity ratione materiae. It might also be suggested that the change in the composition of the Commission in 2017 might be responsible for the shift in position. These are empirical questions that call for speculation and fall beyond the scope of this article. This article has a more narrow, doctrinal focus, seeking to evaluate the outcome of the ILC deliberations against the practice of states. In the next section, the article will provide a background to Draft Article 7 adopted by the Commission, including a brief overview of the Report, on which Draft Article 7 is based, and the various arguments advanced against the adoption of Draft Article 7. Section 3 of the article will assess, against the background of the debate of the Commission, Draft Article 7 and whether it has a basis in the practice of states. Finally, the article will offer some concluding remarks.
Before proceeding with the discussion of Draft Article 7 of the Draft Articles on immunities of state officials, it is necessary to make a few preliminary remarks delineating the scope of the article. Since this article provides a commentary on the current work of the Commission on immunity of state officials from foreign criminal jurisdiction, its scope will be similar to that of the Commission’s draft articles.Footnote 23 Thus, the article will be limited to immunities of officials under customary international law and does not extend to the immunity of the state itself, or immunities addressed in treaty regimes such as the immunities of diplomats under the Vienna Convention on Diplomatic Relations. Similarly, since the scope of the Commission’s work addresses immunity from foreign criminal jurisdiction, the possible immunity from the jurisdiction of international criminal courts is excluded from the scope of the current article.
2. Background to Draft Article 7 adopted by the Commission
2.1 An overview of the Report of the Special Rapporteur
The Special Rapporteur, Concepción Escobar Hernández, submitted her Fifth Report on immunities, covering exceptions to immunity, during the 68th session in 2016.Footnote 24 The Report provides a rich overview of treaty practice, national legislation, and national judicial decisions as forms of state practice. It also provides an overview of international judicial decisions and the work of the Commission, which are sources that the Commission routinely uses as a subsidiary means for the determination of rules of international law. It concludes that under international law there is no exception to immunity ratione personae. With respect to immunity ratione materiae, the Report concludes, ambiguously, that there are either certain exceptions to immunity ratione materiae or that there is trend in favour of exceptions to immunity ratione materiae. In other words, the Report could be read either as proposing that Draft Article 7 reflects existing law (codification) or that it reflects emerging law (progressive development). On this basis, the Special Rapporteur proposes the following draft conclusion:
Draft Article 7, titled ‘Crimes in Respect of which Immunity does not Apply’:
1. Immunity shall not apply in relation to the following crimes:
(i) Genocide, crimes against humanity, war crimes, torture and enforced disappearances;
(ii) Corruption-related crimes;
(iii) 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.
3. Paragraphs 1 and 2 are without prejudice to:
(i) Any provision of a treaty that is binding on both the forum State and the State of the official, under which immunity would not be applicable;
(ii) The obligation to cooperate with an international court or tribunal which, in each case, requires compliance by the forum State.
The conclusion that international law does not recognize any exceptions to immunity ratione personae is not controversial and it is unnecessary to explore the Report’s basis for this conclusion. It is the conclusion that there are exceptions to immunity ratione materiae that resulted in controversy and division with the Commission which is considered in this article. The article will also not consider the territorial tort exception (Art. 7(1)(iii)) and the corruption exception (Art. 7(1)(ii)) proposed by the Special Rapporteur, since these were not adopted by the Commission. The article will thus be limited to the proposition that there are exceptions to immunity ratione materiae for jus cogens crimes such as genocide, crimes against humanity, and war crimes.
I begin with the Special Rapporteur’s treatment of treaty practice. The Convention on the Prevention and Punishment of the Crime of Genocide;Footnote 25 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;Footnote 26 International Convention on the Suppression and Punishment of the Crime of Apartheid;Footnote 27 and International Convention for the Protection of All Persons from Enforced DisappearanceFootnote 28 are relied upon to illustrate an exception to immunity ratione materiae for those crimes.Footnote 29 The Genocide Convention and the Apartheid Convention, for example, include provisions excluding the relevance of official capacity for criminal responsibility.Footnote 30 Although there is no similar provision in the Torture and Enforced Disappearance conventions, according to the Report, both of those Conventions foresee the prosecution of state officials by foreign courts, suggesting an implicit waiver of immunity.Footnote 31
With respect to national legislative practice, the Report begins by referring to immunity-specific legislation. Although it notes that immunity of state officials from national jurisdiction ‘is not explicitly regulated in most States’,Footnote 32 it does identify certain national legislation that addresses immunity of some state officials.Footnote 33 US, Argentine, and Spanish legislation are said to be particularly relevant.Footnote 34 In addition to immunity-specific legislation, the Report considers domestic legislation concerned with the prosecution of international crimes.Footnote 35 It describes a number of domestic laws implementing the Rome Statute of the International Criminal Court which impact on immunities and identifies two general approaches. In the first approach, the relevant legislation ‘recognises that in general no immunity can be invoked against to [sic] the exercise of national jurisdiction’ regarding crimes within the competence of the International Criminal Court.Footnote 36 The second approach identified in the Report limits the non-application of immunity to cases involving co-operation with the ICC.Footnote 37 Under this second approach, the Report refers to two further sub-categories. In the first sub-category, the exception to immunity for the purposes of co-operation applies only to nationals of states parties.Footnote 38 In the second sub-category, immunity is not excluded outright but the legislation provides for a process of consultation to address any conflict that may arise between the application of immunity and the duty to co-operate with the Court.Footnote 39
Additionally, the Report considers whether domestic judicial decisions provide evidence of exceptions to immunity.Footnote 40 It states that while national court judgments have been ‘less uniform … it can be concluded that domestic courts, in a certain number of cases, have been accepting the existence of limitations and exceptions to immunity’ in respect of ‘international crimes, crimes of corruption … and other crimes of international concern …’.Footnote 41 In connection with ‘international crimes’, the Report refers to, amongst others, the Pinochet case (United Kingdom), Hussein case (Germany), Bouterse case (The Netherlands), and Ariel Sharon and Amos Yaron (Belgium).Footnote 42 Many of the cases referred to in the Report, however, were civil law-related.Footnote 43
In addition to these examples of state practice, the Report also traces the jurisprudence of international courts, including the ICJ. It provides a lengthy analysis of the Arrest Warrant caseFootnote 44 and the Jurisdictional Immunities of the State case,Footnote 45 and makes references to the cases of Certain Questions of Mutual Assistance,Footnote 46 and Questions Relating to the Obligation to Prosecute or Extradite.Footnote 47 It is clear from the analysis of the jurisprudence of the Court in the Report that, on the whole, the jurisprudence provides little support for exceptions to immunity. The same conclusion arises from the Report’s description of the jurisprudence of the European Court of Human Rights (ECtHR).Footnote 48
The Draft Article proposed by the Special Rapporteur avoids the use of either ‘exception’ or ‘limitations’, instead using the phrase ‘does not apply to’.Footnote 49 In the Report, the Special Rapporteur, in the main, refers to ‘limitations and exceptions’.Footnote 50 The reason for this, according to the Special Rapporteur, is that ‘this distinction … had been controversial in normative terms’.Footnote 51
2.2 Consideration of the Report in the Commission
As described above, the consideration of the Report in the Commission was heated and tense. The first substantive point raised in connection with the Fifth Report concerned the third paragraph of Draft Article 7 (the without prejudice clause). It was felt by some that it was intended to prejudice ongoing disputes concerning the relationship between Articles 27 and 98 of the Rome Statute and customary international law rules concerning immunity.Footnote 52 The main issue of debate, however, concerned the content of the first paragraph and its consistency with state practice. It is this issue to which the article will now turn.
While the debate on the first paragraph of the proposed Draft Article 7 was broad in scope and rich in depth it is possible to identify three themes in that debate. The first concerned whether the Draft Article was supported by the authorities relied upon in the Report. A second theme running through the debate concerned the criteria for the particular list of crimes provided for in the first paragraph of Draft Article 7. Finally, the third theme concerned the normative propriety of the paragraph. In addition to these three broad themes, and linked with the last theme, some members of the Commission suggested that, though the provision was not acceptable as a matter of current international law, it could be made acceptable if qualified by what was referred to as ‘procedural guarantees’ together with an acknowledgement that it represented proposed new law. I will now consider each of these three themes in turn.
On the question of whether the authorities relied upon in the Report support Draft Article 7, some members of the Commission, including myself, noted that there was a heavy reliance in the Report on authorities addressing either civil proceedings or proceedings relating to the immunities of the state itself rather than the immunities of officials in the context of criminal proceedings.Footnote 53 With respect to the case law, for example, Oral observed that the Certain Questions of Mutual Assistance case and the Jurisdictional Immunities of the State case ‘dealt with the immunity of States, and not the immunity ratione materiae of individuals’, and that the Jurisdictional Immunities of the State case was expressly limited to civil proceedings.Footnote 54 This sentiment applies equally to the numerous ECtHR decisions referred to in the Report, including Al-Adsani v. United Kingdom and Jones v. United Kingdom.Footnote 55
It should be noted, however, that some members of the Commission, particularly those members that believed that there are no exceptions to immunity ratione materiae under international law, felt that there should be no distinction between immunity in civil context and immunity in criminal context.Footnote 56 Murphy, for example, observed that to identify whether there were cases in which immunity ratione materiae was granted for serious crimes, it was necessary to look not only at criminal cases but also at civil cases.Footnote 57 In his view, precisely because of the large number of civil proceedings-related authorities, the authorities did not ‘weigh unequivocally in favour of [proposed] draft article 7’.Footnote 58 Similarly, Kolodkin, speaking of the Jurisdictional Immunities of the State case, said that the ‘fact that the ruling concerned the immunity of the State from civil, not criminal, jurisdiction, changed nothing’.Footnote 59
There was also criticism of the Report’s reliance on the Rome Statute-related authorities. In this regard, Wood asserted that the ‘the implementing laws of the Rome Statute were of dubious relevance, as they had in principle been enacted solely for the purposes of that treaty’.Footnote 60 Similarly, Rajput argued for the exclusion of legislation implementing the Rome Statute since that legislation ‘related to an international tribunal where immunity did not apply’.Footnote 61 Murphy also observed that while the Report ‘mentioned several acts that implemented the Rome Statute, it also noted that many of them are applicable only to the surrender of persons to the Court, listing just five States that have enacted broader implementation statutes’.Footnote 62 There were, however, some members of the Commission that took the view that the principles in the Rome Statute were relevant in determining whether current international law recognized exceptions to immunity ratione materiae.Footnote 63 Peter, for example, said that ‘it was the Rome Statute that should set the standard, not an obscure tradition or custom whose evolution, establishment and acceptance was questionable’.Footnote 64
It was also suggested that some of the authorities cited did not support the propositions advanced in the Report. Murphy, for example, stated that the decision of the International Criminal Tribunal for the former Yugoslavia (ICTY) in Blaškić was incorrectly relied upon in the Report.Footnote 65 In his view, Blaškić did not concern the right of a state to exercise jurisdiction over a foreign official but rather, the ability of the ICTY to subpoena state officials.Footnote 66 Similarly, Rajput noted that a number of the cases relied upon in the Report – for example, Al-Adsani, Kalogeropoulo, and Pinochet – did not support the proposition advanced.Footnote 67 Wood observed that the Dutch judgment in Bouterse had been set aside by a higher court and could therefore not be relied upon as authority.Footnote 68 As described below, these objections are generally flawed.
Many members also raised policy issues with the Draft Article proposed by the Special Rapporteur.Footnote 69 Wood, for example, recognized that the Commission must ‘strive to strike a proper balance between the need to punish perpetrators of crimes and respect for the sovereignty of States’.Footnote 70 In his view, however, before doing so it was important to make a ‘clear distinction between the existing law and possible new rules of law’.Footnote 71 Kolodkin was more direct, suggesting that the proposed draft articles reflected nothing more than the Special Rapporteur’s policy preferences.Footnote 72 Huang cautioned that the approach proposed by the Special Rapporteur risked disturbing ‘the principles of sovereign equality and non-intervention in the internal affairs of other States’.Footnote 73 He suggested that the Draft Article was likely to be abused by western states ‘which frequently invoked so-called universal jurisdiction in order prosecute or even issue arrests warrants against African leaders’.Footnote 74 In response to these policy-based objections, however, Jalloh noted that while ‘the risk of impairment to the stability of international relations’ was often raised to support an expansive approach to immunity, this claim ‘was not supported by empirical evidence’ and it often overlooked ‘the instability and negative impacts caused by atrocity crimes in the affected State, neighbouring States and the international community as a whole … ‘.Footnote 75 Along the same lines, Galvão Teles stressed that it was important to strike ‘a balance between the principles of sovereign equality, stability in the conduct of international relations and immunity, on the one hand, and combating impunity for the most serious international crimes, on the other’.Footnote 76 In Park’s view, ‘it could no longer be denied that the protection of persons against widespread and grave violations of human rights was becoming an essential value that the international community must pursue’.Footnote 77
Questions regarding the choice of crimes were also raised. It was not clear on what basis some crimes were included while others were excluded.Footnote 78 Some members, for example, noted that the Report gives no reason for the exclusion of the crime of apartheid in the list of crimes.Footnote 79 Other members argued for the inclusion of the crime of aggression.Footnote 80 The question was asked whether the inclusion of the crime of corruption, even on a grand scale, was of greater concern to the international community than, say, human trafficking or sexual slavery.Footnote 81
Finally, some members opposed to Draft Article 7 suggested that if the Commission sought to ‘make new law’, then the provision should be accompanied by and considered together with, procedural guarantees.Footnote 82 In making the case for linking the Draft Article with procedural safeguards, Murphy referred to the case concerning Ehud Barak, former Defence Minister of Israel, in the United States for alleged torture and extrajudicial killings:
Both the Israeli and the United States’ Governments had supported Mr Barak’s claim to immunity on the grounds that he acted in his official capacity. In granting Mr Barak immunity and dismissing the case, the District Court of the Central District of California held that the defendant was entitled to immunity where the sovereign State had officially acknowledged and embraced the official’s act.Footnote 83
Other members questioned Murphy’s illustration of the importance of the procedural safeguards, arguing that it is deeply flawed. First, it was pointed out that the illustration pertains not so much to the question of exceptions but more to what constitutes an official act, so that if there is any issue that should be linked with procedural safeguards following the illustration, it should be the question of official act and not exceptions.Footnote 84 Second, and related, the example illustrates that procedural safeguards could be linked to multiple areas of the topic, and it is not clear why only the question of exceptions must be held ransom to the procedural safeguards issue.
As indicated above, the Commission agreed by consensus, after an indicative vote, to refer Draft Article 7 to the Drafting Committee. The Committee managed to reach an agreement on a simplified version of Draft Article 7, which was provisionally adopted by the Commission after a recorded vote. Draft Article 7, adopted by the Commission and which is discussed in the next section, provided as follows:
Immunity ratione materiae from the exercise of foreign criminal jurisdiction shall not apply in respect of the following crimes under international law:
(a) crimes of genocide;
(b) crimes against humanity;
(c) war crimes;
(d) crime of apartheid
(e) torture;
(f) enforced disappearance.
3. Evaluation of Draft Article 7 adopted by the Commission
Before providing an evaluation of Draft Article 7 adopted by the Commission, it is useful to briefly describe the reception that the Draft Article has received so far outside the Commission. First, at adoption, some members opposed to the Draft Article, sought a recorded vote and offered explanations of vote. From a doctrinal perspective, these members expressed the view that Draft Article 7 had no basis in international law as it stood or in state practice.Footnote 85 From a normative perspective they feared that the Draft Article would be abused and would not contribute to the fight against impunity.Footnote 86 At least one member argued that the Draft Article should not be adopted since it did not have the support of the most powerful states and members of the Commission from those (more) powerful states.Footnote 87 Other members, while supporting the text, provided explanations of vote after the adoption to register their concern over the exclusion of specific crimes, in particular aggressionFootnote 88 and corruptionFootnote 89 respectively.
States have also since had the opportunity to comment on the adoption of Draft Article 7 in the context of the Sixth Committee of the General Assembly debate on the Report of the Commission.Footnote 90 It is unnecessary, at this stage, to provide a detailed account of the various views of states, but it has been reported that, of the states that commented on Draft Article 7, 23 states had ‘a predominantly positive attitude’ towards the content of the Draft Article, with 21 states having a ‘predominantly negative attitude’ and a further five having a ‘reserved or ambiguous attitude’.Footnote 91 Like those members of the Commission that opposed Draft Article 7, ten states are reported to have explicitly stated that Draft Article 7 does not reflect customary international law or is not grounded in the practice of states.Footnote 92 It is this claim that the remainder of this section will test. The views expressed in the Sixth Committee are not considered in the Commission’s assessment mainly because they come after the fact. The question is whether, at the time of its adoption, the Commission’s Draft Article was grounded in state practice. Finally, the adoption of Draft Article 7 has also already been the subject of academic debate.Footnote 93
There seems to be a fair bit of consensus, based largely on the Arrest Warrant case and the acceptance by states of that judgment, that there are no exceptions to immunity ratione personae including in relation to jus cogens crimes.Footnote 94 This view is also generally accepted in literature.Footnote 95 The only outstanding issue therefore is whether there is, in the practice of states, a recognition of exceptions to immunity ratione materiae for serious international crimes of jus cogens nature.Footnote 96
Prior to assessing Draft Article 7, three preliminary points need to be made. First, it is, of course, possible to study the question of exceptions from the perspective of the meaning of ‘official act’. The argument has been made that the commission of serious crimes of concern to the international community (what is termed here jus cogens crimes) do not constitute ‘official acts’ and are therefore not covered by immunity.Footnote 97 This line of reasoning is not considered in the current analysis for two reasons. First, the Commission has, in my view correctly, not adopted the approach that commission of certain crimes can never constitute official acts, because surely, they can. Leaving aside that the Torture Convention defines the jus cogens crime of torture as an official act, a state can decide to engage in a policy of genocide and it is not clear why, when an official of that state is prosecuted for his or her participation in such acts, it should be disputed that the acts for which he or she is being prosecuted were undertaken in an official capacity.Footnote 98 Second, exceptions to immunity presupposes that an act is covered by immunity in the first place. If the act in question is not covered by immunities, then we cannot speak of exceptions in the first place.
As a second preliminary point, it should be emphasized that the work of the Commission, including Draft Article 7 on exceptions to immunity, is to be assessed on the basis of practice. In particular, the question should be whether there is sufficient practice to form the basis of the exception, either as codification or as progressive development of international law. As described earlier, in the case of codification, what is required is proof of ‘extensive State practice, precedent and doctrine’. For progressive development, the existing practice need not be extensive, well-developed or even consistent. What matters is that there is some support in the practice of states. Since the Commission has adopted a composite approach to ‘codification and progressive development’ of international law, in which it does not (and should not) identify specific provisions as constituting either codification or progressive development, the assessment of Draft Article 7 requires only some evidence of practice. The evidence need not be conclusive, widespread, or consistent.
The third preliminary point concerns the role of international tribunals and principles emanating from those tribunals.Footnote 99 These include, not only the Rome Statute, but also the Nürnberg Principles and the first Draft Code of Offences against the Peace and Security of Mankind.Footnote 100 While these sources would support the general argument adopted in this article, as a legal proposition, they are inapplicable to the case of immunity from foreign criminal jurisdiction since they concern the jurisdiction of international courts. Practice from international tribunals is therefore excluded, save where it expressly concerns immunity from national authorities.
The Report, and members of the Commission – both opposed to and in support of the Draft Article – have advanced a variety of sources, including both civil and criminal proceedings-related authorities. The Report, for example, relies on authority concerning civil proceedings and immunity of the state to justify the conclusion that there is a territorial tort exception to immunity ratione materiae.Footnote 101 Members of the Commission opposed to the Draft Article have similarly advanced civil cases and cases concerning the immunity of the state rather than the immunity of state officials.Footnote 102 Yet, since the topic is concerned with immunity of state officials from foreign criminal jurisdiction, our search for practice must be centred around materials relating to the immunity, first, of officials – and not the state itself – and second, in the context of criminal proceedings.
In the third report on peremptory norms of general international law (jus cogens), the Special Rapporteur provided some state practice and international jurisprudence on exceptions to immunity of officials ratione materiae in the context of criminal proceedings.Footnote 103 Although the Special Rapporteur, in responding to the debate, proposed the replacement of the draft conclusion concerning immunity with a ‘without prejudice’ clause,Footnote 104 it is useful still to refer to the authorities that formed the basis of those draft conclusions.
There are many cases involving the invocation of immunity of officials ratione materiae in the context of criminal proceedings before domestic courts.Footnote 105 Cases under the 1945 Royal Warrant of the United Kingdom, decreed for the purposes of bringing to trial war criminals from the Second World War, have been referred to as notable examples.Footnote 106 Those prosecuted included military personnel of foreign states who would, most certainly, have possessed immunity ratione materiae.Footnote 107 Cassese also provides a catalogue of domestic courts’ jurisprudence, in which immunity ratione materiae was lifted for jus cogens crimes.Footnote 108 Some of the more famous cases, in which persons ostensibly with immunity ratione materiae, were subject to the jurisdiction of domestic courts include the Eichmann trial (Israel);Footnote 109 Barbie (France);Footnote 110 Bouterse case (The Netherlands) – although the latter was overturned, it was not due to the immunity question but solely to the rule against retroactive application of the law;Footnote 111 Pinochet case (United Kingdom); Guatemala Genocide case (Spain);Footnote 112 and Scilingo case (Spain)Footnote 113 amongst others. Perhaps, the case most synonymous with the principle of loss of immunity ratione materiae for the purposes of jus cogens crimes is the Pinochet case in the United Kingdom. In that case, Lord Brown-Wilkinson, Lord Hope, and Lord Phillips, in their Opinions, all emphasized the non-applicability of immunity ratione materiae to an international crime of a jus cogens nature.Footnote 114
In the course of the Commission debate on the Fifth Report, some members of the Commission sought to impugn some of the authorities referred to above as irrelevant. It was, for example, pointed out that the Bouterse and Pinochet cases did not support the contention that immunity ratione materiae was inapplicable for serious crimes under international law.Footnote 115 With respect to the Bouterse case, it was said that the judgment was irrelevant since it had been overturned on appeal. This assertion, which is undeniably true, is however, misleading. The Supreme Court of the Netherlands did not overturn the judgment in Bouterse on account of immunity. The judgment was overturned on account of the principle of non-retroactive application of laws. Immunity is a procedural bar to prosecution which prohibits the consideration of the substantive issues. The Court’s consideration of whether the laws could be applied retrospectively itself indicates the non-applicability of immunity. It should be recalled that what is at issue is not whether the Court stated immunity is or isn’t applicable. What is at issue is whether the Court exercised its jurisdiction, and, in the case of Bouterse, it clearly did but found that there were no grounds for prosecution because the law could not be applied retroactively.
With respect to the Pinochet case, these members have pointed out that the Opinions were not based on jus cogens as such but rather on a treaty obligation arising under the Convention against Torture. However, in Pinochet, three of the Opinions specifically raised the jus cogens nature of the crime as a basis for the non-applicability of immunity. Moreover, they were all based on the nature of the crime, torture, which has been widely accepted to be a jus cogens crime.Footnote 116 At any rate, whatever the basis of the finding, it constitutes practice which, together with other evidence of practice, must contribute to the assessment of whether Draft Article 7 is based on the practice of states. Moreover, the Convention against Torture, to the extent that it establishes an exception from the customary international law rule on immunity ratione materiae, itself, constitutes practice that must be taken into account in the assessment of Draft Article 7.
There is also some support in ‘international practice’ for the position adopted by the Commission in Draft Article 7. The ICTY, in Blaškić, for example, seemed unequivocal that ‘immunity from national or international jurisdiction’ could not be invoked in respect to international crimes such as crimes against humanity, genocide, and war crimes even if the perpetrators were ‘acting in official capacity’.Footnote 117 The Institut de Droit International, in its resolution of 2001 on the Immunities from Jurisdiction and Execution of Heads of State and of Government in International Law, recognized that former heads of state will continue to enjoy immunity ‘in respect of acts which are performed in the exercise of official functions’.Footnote 118 The Resolution, however, stated that a former head of state, enjoying immunity ratione materiae, may nonetheless, ‘be prosecuted and tried when the acts alleged constitute a crime under international law’.Footnote 119
Members of the Commission opposed to Draft Article 7 have also argued that even if there are cases in which immunity was not applied, the practice is uneven since there are also cases in which immunity was upheld. There are, of course, national court cases upholding immunity in criminal proceedings. The French Court of Cassation, for example, in the Gaddafi case held that ‘qu’en l’état du droit international, le crime dénoncé, quelle qu’en soit la gravité, ne relève pas des exceptions au principe de l’immunité de jurisdiction des chefs d’État étrangers en exercise’.Footnote 120 Similarly, in several post-Pinochet judgments, the UK courts have upheld immunity of state officials, for example in the Mugabe case. It will be noted, however, that these decisions involve incumbent heads of state entitled to immunity ratione personae. These cases are, therefore, not authority for the upholding of immunity ratione materiae.
Moreover, the Gaddafi and Mugabe cases in fact (implicitly) stand for the proposition that there is an exception to immunity ratione materiae in cases of serious crimes. In both of these cases, the courts suggest that, where the individuals in question no longer occupy their positions as heads of state – a scenario under which the Commission has determined immunity ratione materiae would applyFootnote 121 – their claim to immunity would not be upheld. In Gaddafi for example, the Court explicitly states that the protection offered by the immunity is for ‘incumbent heads of State’.Footnote 122 In Mugabe, the Court states that the applicable immunity can only be relied upon by Mugabe ‘whilst he is head of State’.Footnote 123
The Mugabe and Gaddafi cases were both cases involving heads of state. It is, thus, not surprising that in those cases immunity ratione personae was upheld. There have, however, also been decisions upholding immunity of non-heads of state. These include cases decided by the UK Magistrates Court in Re Bo Xilai and Re Mofaz.Footnote 124 Yet, in both of these cases the Court proceeded from the premise, rightly or wrongly, that the officials in question, Minister of Defence (Mofaz) and Minister of Commerce and Trade (Bo Xilai), were entitled to immunity ratione personae. In Mofaz, for example, the Court concluded that ‘a Defence Minister would automatically acquire … immunity in the same way as that pertaining to a Foreign Minister’. Similarly, in Bo Xilai, having recalled the judgment of the ICJ in the Arrest Warrant case, determined that the Chinese Minister of Commerce’s functions are ‘equivalent to those exercised by a Foreign Minister’. Given the invocation of immunity ratione personae, these cases can also not be authority in respect of rules relating to immunity ratione materiae.
Perhaps the best example of a national case upholding immunity ratione materiae is the case of Hissène Habré’s extradition request.Footnote 125 In that case, Habré, as a former head of state, no longer enjoyed immunity ratione personae but only (the residual) immunity ratione materiae. There, the Court determined that although Habré was no longer head of state, the immunity that he enjoyed remained.Footnote 126 Though this decision most definitely serves as a practice against Draft Article 7, it should be pointed out that the decision erroneously relies on the Arrest Warrant case.Footnote 127 While in the case of Habré the relevant immunity was immunity ratione materiae, the Arrest Warrant case concerned immunity ratione personae. Indeed, the majority judgment in the Arrest Warrant case specifically excluded cases of persons who no longer held office.Footnote 128 Thus, while Habré undoubtedly constitutes practice, it should not be accorded too much weight as a subsidiary means of determining the rules of law since it is based on a misunderstanding of the primary ICJ judgment on which it is based.Footnote 129
Even discounting the incorrect reliance of the Habré case on the Arrest Warrant case, the description above suggests that the balance of authorities support the notion that there is, for criminal proceedings, an exception to immunity ratione materiae. There is, however, the problem of the logic of Jurisdictional Immunities of the State case. That logic would seem to apply to immunity in the context of both civil and criminal matters. In other words, there is no a priori reason why the rule enunciated in Jurisdictional Immunities of the State case would apply to civil but not criminal matters. Three brief points can be made in response. First, the distinction between jure gestiones and jure imperii applies to civil matters but apparently not criminal matters. Thus, there are certainly differences between the two-types of procedures in relation to the application of immunities. Second, and more importantly, if what is at issue are rules of customary international law, then what matters is the practice of states and if the practice suggests an exception to immunity in relation to criminal but not civil proceedings, then whether the logic of the Jurisdictional Immunities of the State case could apply or not is insignificant. It is particularly important to observe, in this regard, that some cases upholding immunity in civil matters, have noted that different rules may apply to criminal matters.Footnote 130 Third, and related to the previous points, the ICJ in the Jurisdictional Immunities of the State case itself makes it clear that the scope of its judgment is limited to civil proceedings against the state itself and does not necessarily extend to criminal proceedings against the officials of a state.Footnote 131
There is also an abundance of literature supporting the idea that there are exceptions to immunity ratione materiae.Footnote 132 It is the case that writers supporting the idea of exceptions arrive at that conclusion through different pathways. Bianchi, for example, relies, inter alia, on analogical use of the principle of systemic integration in article 31(3)(c) of the Vienna Convention on the Law of Treaties, as a principle of ‘reasonable and or even necessary aspect of legal reasoning’.Footnote 133 This principle of legal reasoning would require that, not just treaties, but all rules of international law are ‘interpreted against the wider background of the international normative order’, thus giving pre-eminence to norms of jus cogens.Footnote 134 Others, for example, Orakhelshvili, have relied on the need to give effect to the hierarchically superior norms of jus cogens over normal customary international law rules of immunity.Footnote 135 Bassiouni, on the other hand, relied on the universal jurisdiction applicable to the respective crimes as the basis for the exclusion of immunity.Footnote 136 Still others have argued that jus cogens violations cannot be recognized as official acts.Footnote 137 Whatever the reasoning, the majority of writers seem to accept that immunity ratione materiae is not available for jus cogens crimes. There are, however, authors who argue that immunity ratione materiae continues to apply for all official acts irrespective of the type of crime.Footnote 138 Fox, for example, has advanced the substance/procedure dichotomy relied upon by the ICJ in Jurisdictional Immunities of the State case.Footnote 139 Nonetheless, by far, the majority of authors accept that there is an exception to immunity ratione materiae in respect of jus cogens crimes.Footnote 140
It is the case that there have been cases where prosecutions have not been pursued because of immunity ratione materiae.Footnote 141 Yet the weight of the authorities support the content of Draft Article 7. The practice outlined lays a sufficient basis for Draft Article 7 as adopted by the Commission, whether as codification or progressive development.
4. Conclusion
The issue of immunities under customary international law, in particular whether there exist exceptions to immunity for serious crimes under international law, is an emotive one. This is illustrated by the fact that the Commission, a collegiate body that normally adopts decisions by consensus, only managed to adopt Draft Article 7 after a vote, accompanied by strong – and some may say acrimonious – explanations of vote. The issue is emotive because it is a microcosm for the long-standing battle for the soul of international law: will international law – at its core – protect sovereignty and the immunity implied by it or will it pursue a brave new world by promoting accountability and justice for the victims of atrocity crimes.
Proponents of sovereignty are quick to point to the unevenness of practice and decisions of domestic courts that uphold immunity as evidence that international law remains jealously protective of immunity and continues to be grounded in the unshakeable foundations of sovereignty. Proponents of the brave new world in international law have resorted to making normative arguments about ‘the good life’ and the fight against impunity. This article has tried to show that the pursuit of a brave new world in international law does not depend on a radical departure from state-centric, sovereignty-respecting international law. States, through their practice – a manifestation of sovereignty – have shown that they are not indifferent to the plight of human suffering and have themselves promoted this brave new world, in which the imperatives of immunity are moderated by the desire for justice and accountability. In the context of immunity, state practice reveals that, in the limited case of criminal proceedings, there is a basis for the recognition of exceptions to immunity ratione materiae. Whether this recognition will lead to other exceptions, e.g., immunity ratione personae, immunity in civil proceedings, and immunity of the state itself, remains to be seen. But for now, it can be said that the adoption of Draft Article 7 by the International Law Commission paves the way for the advancement of a brave new world in international law.
