2023 REFERENCE GUIDE 2023
The UN Talks About Immuunity Codification
Please, See Below At "Addendum" For Complete UN Disccussion, Thank You
This article examines the extent to which state officials are subject to prosecution in foreign domestic courts for international crimes. We consider the different types of immunity that international law accords to state officials, the reasons for the conferment of this immunity and whether they apply in cases in which it is alleged that the official has committed an international crime. We argue that personal immunity (immunity ratione personae) continues to apply even where prosecution is sought for international crimes. Also we consider that instead of a single category of personal immunity there are in fact two types of such immunity and that one type extends beyond senior officials such as the Head of State and Head of Government. Most of the article deals with functional immunity (immunity ratione materiae). We take the view that this type of immunity does not apply in the case of domestic prosecution of foreign officials for most international crimes. However, we reject the traditional arguments which have been put forward by scholars and courts in support of this view. Instead we consider the key to understanding when functional immunity is available lies in examining how jurisdiction is conferred on domestic courts.
1 Introduction The development of substantive norms of international human rights and international criminal law has not been matched by the development of mechanisms and * University Lecturer in Public International Law & Co-Director, Oxford Institute for Ethics Law and Armed Conflict, University of Oxford; Yamani Fellow, St Peter’s College, Oxford. Email: dapo.akande@law.ox. ac.uk ** Lecturer in Law, University of Nottingham. Email: sangeeta.shah@nottingham.ac.uk Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 816 EJIL 21 (2011), 815–852 procedures for their enforcement. The primary methods of judicial enforcement envisaged by international law are the domestic courts of the state where the human rights violation or international crime occurred and the courts of the state responsible for that violation. To this end, international law imposes obligations on states to prosecute those who have committed international crimes within their territory. Likewise human rights law includes a right to a remedy or to reparation provided by the state that has violated the substantive human right. However, these methods of enforcement of human rights and international criminal law often fail. Domestic law may not incorporate the relevant international human rights norm. International crimes are often committed by state agents as part of state policy, and so governments do not routinely prosecute their own officials engaged in such action (though, as has happened in Latin America, changes of government may bring a change of policy and prosecutions for past official conduct). All of this has led to what has been described as a culture of impunity which contributes to a climate in which human rights violations persist and are not deterred. In order to counter this culture, there are two other possible fora where judicial enforcement of human rights norms may take place. First, it is possible that such enforcement takes place in international (including regional) courts: such as the human rights tribunals or quasi-judicial bodies dealing with state responsibility or international criminal tribunals dealing with the penal responsibility of individuals. However, enforcement of human rights norms by such courts is limited, inter alia, by the fact that an international court with jurisdiction over the acts in question may not exist. For this reason, some human rights advocates have turned to the second set of fora (other than the domestic court of the state committing the wrong): the domestic courts of other states. For the domestic courts of other states to serve as fora for the transnational enforcement of human rights and international criminal law a number of hurdles will have to be overcome. Some of these hurdles are practical, such as the difficulty of obtaining evidence in relation to crimes that took place abroad and the lack of motivation on the part of prosecutors in other states to take up cases which have no connection with the country. Other hurdles are those to be found in the domestic law of the state, including jurisdictional limits under domestic criminal law or under the conflict of law rules of the forum (doctrines such as forum non conveniens). However, there are at least two international law hurdles that also have to be overcome. It will have to be established that the foreign state has jurisdiction, as a matter of international law, to prescribe rules for the matter at hand and to subject the issue to adjudication in its courts. Also, where a case is brought in a domestic court against a foreign state or foreign state official or agent, it must be established that the state or its official is not immune from the jurisdiction of the forum. There are recent developments suggesting movement in international law on both of these issues, but the precise contours of the relevant rules are yet to be conclusively determined. This article addresses the last of the obstacles identified: the international law rules on the immunity of state officials. Whilst it is commonly accepted that state officials are immune in certain circumstances from the jurisdiction of foreign Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 Immunities of State Officials, International Crimes, and Foreign Domestic Courts 817 states,1 there has been uncertainty about how far those immunities remain applicable where the official is accused of committing international crimes. Examining the rationale for the conferment of each of these types of immunity, as well as their scope, this article determines whether they remain applicable in criminal proceedings in which an official is accused of committing a crime under international law. Section 2 of this article examines the immunity that attaches to certain state officials as a result of their office or status (immunity ratione personae). It is argued that there are in fact two types of immunity ratione personae: those attaching to a limited group of senior officials, especially the Head of State, Head of Government, and diplomats, and the immunity of state officials on special mission abroad. Section 3 addresses the immunity which attaches to acts performed by state officials in the exercise of their functions (immunity ratione materiae). We argue that this immunity has both a substantive and a procedural function, in that it gives effect to a defence available to state officials and prevents the circumvention of the immunity of the state. In that part, we consider, and reject, a number of related arguments which are normally deployed in arguing that immunity ratione materiae does not apply to cases concerning human rights violations in general and international crimes in particular. The arguments in question are based on the jus cogens status of the norms in question or on the view that human rights violations/international crimes may not be considered sovereign (or official) acts. In our view, these arguments misunderstand the basis on which immunity is accorded or are premised on a false conflict of norms. We then go on to suggest a more persuasive rationale for the argument that immunity ratione materiae does not apply in cases concerning prosecutions for international crimes. In so doing, we re-examine the relationship between jurisdictional rules and rules of immunity and suggest that rules conferring extra-territorial jurisdiction may of themselves displace prior immunity rules. Our conclusion considers why it is important to clarify the rationale for denial of immunity ratione materiae and briefly explores some of the implications of our theory for civil cases involving human rights violations. Some of the arguments set out in this article were first summarized by one of us in a previous article.2 The present article explores the arguments in more detail, filling in some of the steps in the reasoning and elaborating on some of the points made and their consequences. 1 See, generally, Whomersley, ‘Some Reflections on the Immunity of Individuals for Official Acts’, 41 ICLQ (1992) 848; Tomonori, ‘The Individual as Beneficiary of State Immunity: Problems of the Attribution of Ultra Vires Conduct’, 29 Denver J Int’l L and Policy (2001) 261; H. Fox, The Law of State Immunity (2nd edn, 2008), at 455–464 and Ch. 19; Watts, ‘The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers’, 247 Recueil des Cours (1994-III) 13; Wickremasinghe, ‘Immunities Enjoyed by Officials of States and International Organizations’, in M. Evans (ed.), International Law (3rd edn, 2010), at 380. 2 Akande, ‘International Law Immunities and the International Criminal Court’, 98 AJIL (2004) 407, 409–415. Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 818 EJIL 21 (2011), 815–852 2 Immunity of State Officials Ratione Personae (Immunity Attaching to an Office or Status) International law confers on certain state officials immunities that attach to the office or status of the official. These immunities, which are conferred only as long as the official remains in office, are usually described as ‘personal immunity’ or ‘immunity ratione personae’. It has long been clear that under customary international law the Head of State and diplomats accredited to a foreign state possess such immunities from the jurisdiction of foreign states.3 In addition, treaties confer similar immunities on diplomats, representatives of states to international organizations,4 and other officials on special mission in foreign states.5 The predominant justification for such immunities is that they ensure the smooth conduct of international relations and, as such, they are accorded to those state officials who represent the state at the international level. International relations and international cooperation between states require an effective process of communication between states.6 It is important that states are able to negotiate with each other freely and that those state agents charged with the conduct of such activities should be able to perform their functions without harassment by other states.7 As the International Court of Justice (ICJ) has pointed out, there is ‘no more fundamental prerequisite for the conduct of relations between States than the inviolability of diplomatic envoys and embassies’.8 In short, these immunities are necessary for the maintenance of a system of peaceful cooperation and co-existence among states.9 Increased global cooperation means that this immunity is especially important. 3 See Watts, supra note 1. 4 E.g., Arts 29 and 31 Vienna Convention on Diplomatic Relations 1961 (VCDR), 500 UNTS 95; Art. IV, Section 11, Convention on the Privileges and Immunities of the United Nations 1946, 1 UNTS 15 and 90 UNTS 327 (corrigendum to vol. I). 5 Arts 21, 39, and 31 UN Convention on Special Missions 1969, 1400 UNTS 231. 6 See Wickremasinghe, supra note 1, at 406. 7 See Tunks, ‘Diplomats or Defendants? Defining the Future of Head-of-State Immunity’, 52 Duke LJ (2002) 651, at 656: ‘Head-of-State immunity allows a nation’s leader to engage in his official duties, including travel to foreign countries, without fearing arrest, detention, or other treatment inconsistent with his role as the head of a sovereign State. Without the guarantee that they will not be subjected to trial in foreign courts, heads of State may simply choose to stay at home rather than assume the risks of engaging in international diplomacy’. The same may be said of others entitled to immunity ratione personae. In 2010, Gordon Brown, then prime minister of the UK, expressed a similar concern: ‘[t]here is already growing reason to believe that some people are not prepared to travel to this country for fear that such a private arrest warrant – motivated purely by political gesture – might be sought against them. These are sometimes people representing countries and interests with which the UK must engage if we are not only to defend our national interest but maintain and extend an influence for good across the globe’: ‘Britain must protect foreign leaders from private arrest warrants’, The Guardian, 3 Mar. 2010. 8 United States Diplomatic and Consular Staff in Tehran case (United States of America v. Iran) [1980] ICJ Rep 3, at para. 91. 9 See Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium) [2002] ICJ Rep 3, Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal, ibid., at para. 75: ‘immunities are granted to high State officials to guarantee the proper functioning of the network of mutual inter-State relations, which is of paramount importance for a well-ordered and harmonious international system’. See also Fox, supra note 1, at 673. Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 Immunities of State Officials, International Crimes, and Foreign Domestic Courts 819 A The Scope of Immunity Ratione Personae: Immunity from Criminal Process for International Crimes It is clear that senior officials who are accorded immunity ratione personae will be hindered in the exercise of their international functions if they are arrested and detained whilst in a foreign state. For this reason, this type of immunity, where applicable, is commonly regarded as prohibiting absolutely the exercise of criminal jurisdiction by states. The absolute nature of the immunity ratione personae means that it prohibits the exercise of criminal jurisdiction not only in cases involving the acts of these individuals in their official capacity but also in cases involving private acts.10 Also, the rationale for the immunity means that it applies whether or not the act in question was done at a time when the official was in office or before entry to office.11 What is important is not the nature of the alleged activity or when it was carried out, but rather whether the legal process invoked by the foreign state seeks to subject the official to a constraining act of authority at the time when the official was entitled to the immunity. Thus, attempts to arrest or prosecute these officials would be a violation of the immunity whilst invitations by a foreign state for the official to testify or provide information voluntarily would not.12 However, since this type of immunity is conferred, at least in part, in order to permit free exercise by the official of his or her international functions, the immunity exists for only as long as the person is in office. In the Arrest Warrant case, the ICJ held that Foreign Ministers are entitled to immunity ratione personae, and further held that the absolute nature of the immunity from criminal process accorded to a serving Foreign Minister ratione personae subsists even when it is alleged that he has committed an international crime and applies even when the Foreign Minister is abroad on a private visit.13 The Court stated: It has been unable to deduce . . . that there exists under customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs, where they are suspected of having committed war crimes or crimes against humanity.14 The principle that immunity ratione personae extends even to cases involving allegations of international crimes must be taken as applying to all those serving state officials and diplomats possessing this type of immunity.15 Indeed the principle is 10 Arrest Warrant case, supra note 9, at para. 54; Fox, supra note 1, at 694. See also the treaty provisions cited supra at note 5. 11 Arrest Warrant case, supra note 9, at paras 54–55. 12 Ibid., at paras 55, 70–71; Case Concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), ICJ judgment of 4 June 2008, at para. 170, available at: www.icj-cij.org/docket/files/136 /14550.pdf. 13 Arrest Warrant case, supra note 9, at para. 55. 14 Ibid., at para. 58. 15 See, generally, A. Cassese, International Criminal Law (2nd edn, 2008), at 309–310; Gaeta, ‘Official Capacities and Immunities’, in A. Cassese et al. (eds), Commentary on the International Criminal Court (2002), at 975, 983–989; Zappalà, ‘Do Heads of State in Office Enjoy Immunity from Jurisdiction for International Crimes? The Ghaddafi Case before the French Cour de Cassation’, 12 EJIL (2001) 595; Fox, ‘The Resolution of the Institute of International Law on the Immunities of Heads of State and Government’, 51 ICLQ (2002) 119. Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 820 EJIL 21 (2011), 815–852 uncontroversial and has been widely applied by national courts in relevant cases,16 as well as being upheld in state practice.17 The only case which may be construed as denying immunity to a Head of State is United States v. Noriega. 18 However, immunity was not accorded in this case on the ground that the US government had never recognized General Noriega (the de facto ruler of Panama) as the Head of State. B Which Officials are Entitled to Immunity Ratione Personae? It has long been clear that serving Heads of State,19 Heads of Government,20 and diplomats21 possess immunity ratione personae. In the Arrest Warrant case, the ICJ held – without reference to any supporting state practice – that immunity ratione personae also applies to a serving Foreign Minister.22 Questions remain about whether this type of immunity applies to other senior government members. In describing the rule according immunity ratione personae in the Arrest Warrant case, the ICJ stated it 16 See the Ghaddafi case, Arrêt no. 1414 (2001), 125 ILR 456 (France: Cour de Cassation); Castro case (Spain: Audiencia Nacional, 1999), cited by Cassese, supra note 15, at 272 n. 20; Re Sharon and Yaron, 42 ILM (2003) 596 (Belgium: Cour de Cassation); R. v. Bow Street Stipendiary Magistrate and others, Ex parte Pinochet (No.3) [1999] 2 All ER 97, at 126–127, 149, 179, 189 (HL, per Lords Goff, Hope, Millett, and Phillips); Plaintiffs A, B, C, D, E, F v. Jiang Zemin, 282 F Supp 2d 875 (ND Ill., 2003); Tachiona v. Mugabe, 169 F Supp 2d 259 (SDNY 2001). In Jan. 2004, an English District Judge rejected, on grounds of immunity, an application for a warrant for the arrest of Robert Mugabe, Head of State of Zimbabwe, in relation to allegations of torture. In 2008, Spain’s Audencia Nacional concluded that the Spanish courts did not have jurisdiction to prosecute President Kagame of Rwanda for the crime of genocide, crimes against humanity, and terrorist activities: Auto del Juzgado Central de Instucción No. 4 (2008), 151–157. Likewise, in Feb. 2004, a District Judge at Bow Street Magistrates’ Court rejected, on grounds of immunity, an application for a warrant for the arrest of General Mofaz, then Israeli Minister of Defence, in relation to allegations of breaches of war crimes: see Warbrick, ‘Immunity and International Crimes in English Law’, 53 ICLQ (2004) 769. In 2009, Ehud Barak, Israeli Minister of Defence was the subject of an application for an arrest warrant for war crimes committed in Gaza in Dec. 2008. This application was also denied: see Black and Cobain, ‘Barak faces war crimes arrest threat during UK visit’, The Guardian, 29 Sept. 2009. 17 The US government issued a suggestion of immunity in a case brought against the then President of China alleging torture, genocide, and other human rights violations. See Murphy, ‘Head-of-State Immunity for Former Chinese President Jiang Zemin’ in ‘Contemporary Practice of the United States Relating to International Law’, 97 AJIL (2003) 962, at 974–977; Plaintiffs A, B, C, D, E, F, supra note 16. In Aug. 2003, Saied Baghban, an Iranian diplomat accused of having been involved in the bombing of a Jewish centre in Argentina, was briefly detained in Belgium but then released on grounds of diplomatic immunity: see Beeston, ‘Iran threatens to hit back over diplomat’s arrest’, The Times, 28 Aug. 2003, at 17. Similarly, despite accusations that the Israeli Ambassador to Denmark had been complicit in torture while he was head of Shin Bet, the Israeli Intelligence Service, Denmark has maintained that he is entitled to diplomatic immunity from Danish criminal jurisdiction. See Osborn, ‘Danish protests greet Israeli envoy’, The Guardian, 16 Aug. 2001, at 13; Hartmann, ‘The Gillon Affair’, 54 ICLQ (2005) 745. Likewise, the authorities of the UK took the view that a serving Israeli Defence Minister was entitled to immunity from arrest despite allegations that he had been responsible for war crimes in the West Bank. See McGreal, ‘Sharon’s Ally Safe from Arrest in Britain’, The Guardian, 11 Feb. 2004, at 19. 18 117 F 3d 1206 (11th Cir. 1997). 19 See Djibouti v. France, supra note 12, at para. 170. 20 See Arrest Warrant case, supra note 9, at para. 51; Watts, supra note 1; Arts 1, 2, and 15 Res of the Institut de Droit Internaitonal on ‘Immunities from Jurisdiction and Execution of Heads of State and of Government in International Law’, 2001, available at: www.idi-iil.org/idiE/resolutionsE/2001_van_02_en.PDF. 21 Arts 29 and 31 VCDR. 22 Arrest Warrant case, supra note 9, at para. 53. Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 Immunities of State Officials, International Crimes, and Foreign Domestic Courts 821 applies to ‘diplomatic and consular agents [and] certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs’.23 The use of the words ‘such as’ suggests that the list of senior officials entitled to this immunity is not closed. In that case, Foreign Ministers were held to be immune because they are responsible for the international relations of the state and ‘in the performance of these functions, he or she is frequently required to travel internationally, and thus must be in a position to do so freely whenever the need should arise’.24 However, justifying this type of immunity by reference to the international functions of the official concerned would make it difficult to confine the immunity to a limited group of state officials. A very wide range of officials (senior and junior) are charged with the conduct of international relations and need to travel in the exercise of their functions. Ministers other than those specifically designated as being responsible for foreign affairs often represent their state internationally. They may have to conduct bilateral negotiations with other governments or may represent their governments at international organizations or at international summits. Indeed it is difficult to think of any ministerial position that will not require at least some level of international involvement.25 Where officials represent their states at international organizations they will usually be accorded immunity by treaty.26 Likewise under Articles 29 and 31 of the UN Convention on Special Missions 1969 the person of any official abroad on a special mission on behalf of his or her state is inviolable, with the result that he or she may not be arrested or detained. Furthermore, Article 31 of that Convention provides that ‘the representatives of the sending State in special mission and the members of its diplomatic staff are immune from the criminal jurisdiction of the receiving State’.27 These are treaty based conferrals of immunity ratione personae which extend the category beyond the Head of State, Head of Government, and Foreign Minister. However, the policy underlying the immunity is, in all cases, consistent with that enunciated by the ICJ. These treaty-based conferments of immunity are intended to facilitate the conduct of international relations. Although the Convention on Special Missions is in force, only a small number of states have become party to it (38 at the time of writing). The 23 Ibid. 53 (emphasis added). 24 Ibid. 25 In Application for Arrest Warrant Against General Shaul Mofaz (Decision of District Judge Pratt, Bow Street Magistrates’ Court, Feb. 2004), it was stated that ‘[t]he function of various Ministers will vary enormously depending upon their sphere of responsibility. I would think it very unlikely that ministerial appointments such as Home Secretary, Employment Minister, Environment Minister, Culture Media and Sports Minister would automatically acquire a label of State immunity. However, I do believe that the Defence Minister may be a different matter’: see Warbrick, supra note 16, at 773. However, in modern international affairs, it is difficult to see that the Ministers listed above would not be involved in travel on behalf of the state. However, some limits have been drawn. In Djibouti v. France, supra note 12, the ICJ confirmed that officials holding the (non-ministerial) posts of Public Prosecutor and Chief of National Security did not enjoy immunity ratione personae (at para. 194). 26 See Art. IV, para. 11, Convention on the Privileges and Immunities of the UN (1946), supra note 4; Art. V, General Convention on the Privileges and Immunities of the Organization of African Unity (1965), available at: www.dfa.gov.za/foreign/Multilateral/africa/treaties/oaupriv.htm. 27 See Arts 29 and 31 UN Convention on Special Missions 1969, supra note 5. Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 822 EJIL 21 (2011), 815–852 question arises whether the immunity provisions in that Convention represent rules of customary international law. If they do, then immunity ratione personae is available to a much broader group than was mentioned by the ICJ in the Arrest Warrant case. Although the International Law Commission was of the view that the immunity of special missions was established as a matter of international law, a US Federal District Court doubted that these provisions represented customary international law.28 However, the US Executive Branch has taken a different view and has asserted that foreign officials only temporarily in the United States on ‘special diplomatic mission’ are entitled to immunity from the jurisdiction (criminal and civil) of US courts.29 What is of particular interest is that such assertions of immunity have covered people who are not the Head of State, Head of Government, or Foreign Minister. For example, the US government suggested immunity in a case brought against the Chinese Minister of Commerce and International Trade.30 Governments and courts in other countries are also willing to accept the customary law status of the rule granting immunity to members of Special Missions. In the Mutual Assistance in Criminal Matters case, Djibouti relied on the Special Missions Convention in its written pleadings although neither it nor France was a party to that Convention.31 The UK government and UK courts have also recognized the immunity of special missions on the basis of customary international law. In Re Bo Xilai, 32 a magistrates’ court in England was willing to grant immunity to the same Chinese Minister of Commerce on the ground that this was required by customary international law since he was part of a special mission. Likewise, Germany declined to arrest the Chief of Protocol to the President of Rwanda (Rose Kabuye) when she was on an official visit to the country in April 2008, acknowledging that she was immune, although she was subject to a French-issued arrest warrant on terrorism charges.33 The customary international law basis of special missions immunity was accepted by the Criminal Chamber of the German Federal Supreme Court in the Tabatabai Case, where it stated: 28 See USA v. Sissoko, 121 ILR 599 (SD Fla, 1997); Wickremasinghe supra note 1, at 391. See however Yearbook of the International Law Commission, Volume II (1967), 358 (‘It is now generally recognized that States are under an obligation to accord the facilities, privileges and immunities in question to special missions and their members.’). 29 See the suggestion of immunity issued by the US Executive Branch in Li Weixum v. Bo Xilai, DCC Civ. No. 04- 0649 (RJL), available at: www.state.gov/documents/organization/98832.pdf. See also the statement of John Bellinger Legal Adviser, US State Department, available at: http://opiniojuris.org/2007/01/18/immunities/. 30 Li Weixum v. Bo Xilai, supra note 29. 31 Djibouti v. France, supra note 12, Memorial of the Republic of Djibouti, Mar. 2007, at paras 131–140, available at: www.icj-cij.org/docket/files/136/14390.pdf. Djibouti later amended its claim and declined to claim immunity ratione personae for persons other than the Head of State. In any event, the Court held that ‘the Convention on Special Missions of 1969 [was] not . . . applicable in this case’: ICJ judgment, supra note 12, at para. 194. This was probably no more than an indication that the facts did not fall within the scope of the Convention. 32 128 ILR (2005) 713. See also proceedings in England regarding Israeli Minister Ehud Barak, supra note 16; Written Ministerial Statement by Mr Henry Bellingham (Under-Secretary of State for Foreign Affairs), HC Deb., 13 Dec. 2010, Vol. 520, 72WS. 33 However, Germany did arrest her on a subsequent visit in Nov. of the same year arguing that she was in Germany on a private visit (a point disputed by Rwanda). See Akande, ‘Prosecution of Senior Rwandan Government Official in France: More on Immunity’ (2008), available at: www.ejiltalk.org/prosecutionof-senior-rwandan-government-official-in-france-more-on-immunity/. See also Thalmann, ‘French Justice’s Endeavours to Substitute for the ICTR’, 6 J Int’l Criminal Justice (2008) 995. Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 Immunities of State Officials, International Crimes, and Foreign Domestic Courts 823 irrespective of the [UN Special Missions Convention], there is a customary rule of international law based on State practice and opinio juris which makes it possible for an ad hoc envoy, who has been charged with a special political mission by the sending State, to be granted immunity by individual agreement with the host State for that mission and its associated status, and therefore for such envoys to be placed on a par with the members of the permanent missions of State protected by international treaty law.34 It is important to point out that it has been accepted that this type of special mission immunity applies even in cases concerning international crimes. For example, immunity was recognized in Re Bo Xilai, even though the case dealt with allegations of torture. Likewise, the Belgian Government in the Arrest Warrant case accepted in its pleadings to the ICJ that the arrest warrant in question would not be enforceable, on immunity grounds, in cases where a representative of a foreign state was in Belgium on the basis of an official invitation.35 Questions remain as to the precise contours of the special mission immunity. In particular, it needs to be determined what constitutes a special mission. According to Article 1 of the Convention on Special Missions a special mission is ‘a temporary mission, representing the State, which is sent by one State to another State with the consent of the latter for the purpose of dealing with it on specific questions or of performing in relation to it a specific task’. This suggests that the receiving state must not only be aware that the foreign official is on its territory, it must also consent to that presence and to the performance of the specified task. It is this consent which gives rise to the immunity.36 Although this special mission immunity is broadly applicable it does not apply to state officials abroad on a private visit. This is what distinguishes it from the type of immunity ratione personae discussed by the ICJ in the Arrest Warrant case. In that case, the Court held that the Foreign Minister (and also the Head of State and Head of Government) would be immune even if abroad on a private visit.37 It is not controversial that a foreign Head of State is entitled to absolute immunity ratione personae from criminal jurisdiction of foreign courts even whilst abroad on a private visit. However, prior to the ICJ’s decision it was not certain that this same immunity applied to Foreign Ministers or Heads of Government abroad on a private visit.38 In the Arrest Warrant case, the ICJ justified the conferment of this broad immunity to a serving Foreign Minister on the ground that it was necessary for the conduct of international relations. However, this argument is not convincing. It is difficult to see why a Foreign Minister should require immunity from jurisdiction when on a private visit. Such visits are not 34 Decision of 27 Feb. 1984, Case No. 4 StR 396/83, 80 ILR (1989) 388 (Germany: Federal Supreme Ct). 35 See Arrest Warrant case, supra note 9, Counter-Memorial of the Kingdom of Belgium, 28 Sept. 2001, at paras 1.11–1.12, 3.2.32, available at: www.icj-cij.org/docket/files/121/8304.pdf. 36 See The Schooner Exchange v. McFaddon, 11 US 116 (1812) (US Sup. Ct.) Marshall CJ, holding that whenever a Sovereign, a representative of a foreign State or a foreign army is present within the territory by consent, it is to be implied that the local sovereign confers immunity from local jurisdiction. 37 Arrest Warrant case, supra note 9, at para. 55. 38 See Watts, supra note 1, at 102–109. There appears to be little practice, if any, suggesting that states consider the position of Foreign Ministers to be the same as that of Heads of State and Government. Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 824 EJIL 21 (2011), 815–852 necessary for the international relations of the state.39 To the extent that the Foreign Minister (or other official) is immune whilst abroad on official visits then the conduct of international relations ought not to be greatly impeded as the Minister is free to travel to conduct such relations. Justification for immunity of senior officials when abroad on a private visit must be sought elsewhere. There are two further justifications for immunity ratione personae, beyond the ‘functional’ rationale discussed above, which may be of use: (1) symbolic sovereignty and (2) the principle of ‘non-intervention’. It is worth pointing out here that none of these rationales can be taken as the sole justification for the rule of immunity ratione personae. They must be read together to give a convincing account of why the rule of immunity still exists. First, it has been argued that the rule according Heads of State immunity ‘reflects remnants of the majestic dignity that once attached to kings and princes as well as remnants of the idea of the incarnation of the state in its ruler’.40 A Head of State is accorded immunity ratione personae not only because of the functions he performs, but also because of what he symbolizes: the sovereign state. The person and position of the Head of State reflects the sovereign quality of the state41 and the immunity accorded to him or her is in part due to the respect for the dignity of the office and of the state which that office represents. The principle of non-intervention constitutes a further justification for the absolute immunity from criminal jurisdiction for Heads of State. The principle is the ‘corollary of the principle of sovereign equality of states’,42 which is the basis for the immunity of states from the jurisdiction of other states (par in parem non habet imperium). To arrest and detain the leader of a country is effectively to change the government of that state. This would be a particularly extreme form of interference with the autonomy and independence of that foreign state. The notion of independence means that a state has exclusive jurisdiction to appoint its own government – and that other states are not empowered to intervene in this matter. Were the rule of Head of State immunity relaxed in criminal proceedings so as to permit arrests, such interference right at the top of the political administration of a state would eviscerate the principles of sovereign equality and independence. Although practice on the point is not clear and although the Head of Government was not in the past considered as having the same ‘majestic dignity’ as the Head of State or as symbolizing the state,43 there are good reasons for extending to the former 39 See R. van Alebeek, The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law (2008), at 179–180, making the same point with regard to Heads of State. 40 Ibid., at 180. See also Fox, supra note 1, at 673: ‘[t]he occasion of an official visit peculiarly celebrates the representation of the State in the person of the visiting head’. 41 See Watts, supra note 1, at 53, 102–103. 42 Military and Para-military Activities in and against Nicaragua (Nicaragua v. United States) [1986] ICJ Rep 14, at para. 202. 43 See R. Jennings and A. Watts (eds), Oppenheim’s International Law (9th edn, 1992), at para. 445: ‘the head of government . . . does not represent the international persona of the state in the same way in which the Head of State does’. See also Watts, supra note 1, at 102–103: ‘heads of government and foreign ministers, although senior and important figures, do not symbolize or personify their States in the way that Heads of State do. Accordingly, they do not enjoy in international law any entitlement to special treatment by virtue of qualities of sovereignty or majesty attaching to them personally.’ Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 Immunities of State Officials, International Crimes, and Foreign Domestic Courts 825 the absolute immunity from criminal jurisdiction granted to the latter.44 In many states it is the Head of Government who is the effective leader of the country.45 Thus to arrest and detain him or her is as damaging to the autonomy of the state as is the case with Heads of State. However, the same cannot be said of other ministers (including the Foreign Minister). They may represent the state but do not embody the supreme authority of the state, and their removal does not signify a change in government of the state. While removing immunity for the Head of State and Head of Government goes to the root of the principle of equality of states, removing immunity for other senior officials on private visits does not have the same dramatic impact. Thus, by restricting the allocation of broad immunity ratione personae to Heads of State and Heads of Government, a balance is struck between sovereign equality and respect for the rule of (international and domestic) law. On this analysis, extending such broad immunity ratione personae to other ministers, as the ICJ did in Arrest Warrant, is erroneous and unjustified. 3 Immunity of State Officials Ratione Materiae (Immunity Attaching to Official Acts) State officials are, generally speaking, immune from the jurisdiction of other states in relation to acts performed in their official capacity (‘functional immunity’ or ‘immunity ratione materiae’).46 As this type of immunity attaches to the official act rather than the status of the official, it may be relied on by all who have acted on behalf of the state with respect to their official acts. Thus, this conduct-based immunity may be relied on by former officials in respect of official acts performed while in office as well as by serving state officials.47 It may also be relied on by persons or bodies that are not state officials or entities but have acted on behalf of the state.48 44 This is the approach set out by the Institut de droit international, supra note 20. 45 Fox, supra note 1, at 670 (n. 16) notes that in 1978 there were ‘68 States whose Heads were also Heads of Government’. 46 For relevant cases from different jurisdictions see Tomonori, supra note 1, at 269–273. For a consideration of US and UK law on the matter see Whomersley, supra note 1; Fox, supra note 1, at 458–459. 47 Wickremasinghe, supra note 1, at 383. See also Art. 39(2) VCDR, supra note 4, and the discussion infra in relation to former diplomats, and Art. 43(1) Vienna Convention on Consular Relations (1963) (VCCR), 596 UNTS 261, in relation to consular officials. Some have doubted whether the immunity ratione materiae applicable to former diplomats is of the same nature as the general immunity applicable to other official acts of other state officials: see, e.g., Dinstein, ‘Diplomatic Immunity from Jurisdiction Ratione Materiae’, 15 ICLQ (1966) 76, at 86–89, who argues that diplomatic immunity ratione materiae is broader than that accorded to other state officials. Tomonori, supra note 1, at 281, questions whether other state officials possess immunity ratione materiae in criminal proceedings and in relation to ultra vires acts. 48 See Van Panhuys, ‘In the Borderland Between the Act of State Doctrine and Questions of Jurisdictional Immunities’, 13 ICLQ (1964) 1193, at 1201. See also Twycross v. Dreyfus, 5 ChD (1877) 605 (England: CA); Kuwait Airways Corp. v. Iraq Airways Co. [1995] 3 All ER 694 (HL); Walker v. Bank of New York, 16 OR 3d 1994) 504 (Canada: Ontario CA) and s.14(2) UK State Immunity Act 1978, Ch. 33. Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 826 EJIL 21 (2011), 815–852 The application of immunity ratione materiae to state officials has been more common in civil than criminal cases.49 The criminal jurisdiction of states is primarily territorial and state officials do not usually exercise their official functions in the territory of other states. An important exception is during an international armed conflict where combatants will often exercise their official functions (i.e., engaging in hostilities) in the territory of the opposing state. However, international humanitarian law has provided that these officials should not face criminal prosecution at the hands of the enemy state solely for their involvement in such hostilities as long as they adhere to the laws and customs of war.50 Thus, the circumstances in which a state official may face criminal prosecution in a foreign state for an act done in the exercise of official capacity are limited. Nevertheless, the assertion of immunity ratione materiae in criminal cases is not unknown and the reasons for which the immunity is conferred apply a fortiori in criminal cases.51 There are two related policies underlying the conferment of immunity ratione materiae. First, this type of immunity constitutes (or, perhaps more appropriately, gives effect to) a substantive defence, in that it indicates that the individual official is not to be held legally responsible for acts which are, in effect, those of the state. Such acts are imputable only to the state and immunity ratione materiae is a mechanism for diverting responsibility to the state.52 This rationale was cogently expressed by the Appeals 49 For the suggestion that the paucity of domestic criminal cases recognizing the ratione materiae immunity of states makes it difficult to prove that this type of immunity applies in criminal proceedings see Tomonori, supra note 1, at 262. 50 See Ipsen, ‘Combatants and Non-Combatants’, in D. Fleck (ed.), The Handbook of Humanitarian Law of Armed Conflict (2nd edn, 2008), at 79, 82. 51 The best-known case in which this type of immunity was asserted in respect of criminal proceedings is Macleod’s case (on which see Jennings, ‘The Caroline and McLeod Cases’, 32 AJIL (1938) 82, at 92); Noyes, ‘The Caroline: International Law Limits on Resort to Force’, in J. Noyes, L. Dickinson, and M. Janis, International Law Stories (2007), at 263. While both the British and US governments accepted that there was immunity under international law from both civil and criminal processes, Macleod was actually subject to trial owing to the inability of the US federal government to interfere with the prosecution. In Nov. 2007 a Paris District Prosecutor dismissed a complaint against Donald Rumsfeld, former US Secretary of State for Defence, alleging that he was responsible for acts of torture in detention centres in Guantanamo Bay and Abu Ghraib. The Prosecutor’s reason for dismissing the complaint was based on Rumsfeld’s continuing immunity ‘for acts performed in the exercise of his functions [as former Secretary of State for Defense].’ See www.fidh.org/france-in-violation-of-law-grants-donald-rumsfeld,4932. However, in the Rainbow Warrior Case, 74 ILR (1986) 241, the French government’s assertion that military officers should not be tried in New Zealand once France had accepted international responsibility was rejected by New Zealand. See also the few cases cited by Tomonori, supra note 1, at 262. 52 See Cassese, supra note 15, at 304; Fox, supra note 1, at 94–97. In Attorney General of Israel v. Eichmann, 36 ILR (1962) 5, at 308–309, the Israeli Supreme Court stated that ‘[t]he theory of “Act of State” means that the act performed by a person as an organ of the State – whether he was Head of the State or a responsible official acting on the Government’s order – must be regarded as an act of the State alone. It follows that only the latter bears responsibility therefor, and it also follows that another State has no right to punish the person who committed the act, save with the consent of the State whose mission he performed. Were it not so, the first State would be interfering in the internal affairs of the second, which is contrary to the conception of the equality of States based on their sovereignty.’ However, the Court was not prepared to accept that this theory applied in all cases. See also the correspondence in the MacLeod case, supra note 51. Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 Immunities of State Officials, International Crimes, and Foreign Domestic Courts 827 Chamber of the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v. Blaškić: [State] officials are mere instruments of a State and their official action can only be attributed to the State. They cannot be the subject of sanctions or penalties for conduct that is not private but undertaken on behalf of the State. In other words, State officials cannot suffer the consequences of wrongful acts which are not attributable to them personally but to the State on whose behalf they act: they enjoy so-called ‘functional immunity’. This is a well established rule of customary international law going back to the eighteenth and nineteenth centuries, restated many times since.53 One consequence of this function of immunity ratione materiae is that the immunity of state officials is not co-extensive with, but broader than, the immunity of the state itself. The official would be immune not only with respect to sovereign acts for which the state is immune but also in proceedings relating to official but non-sovereign acts.54 Secondly, the immunity of state officials in foreign courts prevents the circumvention of the immunity of the state through proceedings brought against those who act on behalf of the state.55 As was stated by the English Court of Appeal in Zoernsch v. Waldock: A foreign sovereign government, apart from personal sovereigns, can only act through agents, and the immunity to which it is entitled in respect of its acts would be illusory unless it extended also to its agents in respect of acts done by them on its behalf. To sue an envoy in respect of acts done in his official capacity would be, in effect, to sue his government irrespective of whether the envoy had ceased to be ‘en poste’ at the date of his suit.56 In this sense, the immunity operates as a jurisdictional, or procedural, bar and prevents courts from indirectly exercising control over the acts of the foreign state through proceedings against the official who carried out the act. In Jones v. Saudi Arabia [2006] UKHL 26, at para. 68, Lord Hoffmann argued that it is ‘artificial to say that acts of officials are not attributable to them personally and . . . this usage can lead to confusion, especially in those cases in which some aspect of the immunity of the individual is withdrawn by treaty, as it is for criminal proceedings by the Torture Convention’. However, he conceded that there was ‘undoubted authority’ for this view of functional immunity. 53 Prosecutor v. Blaškić (Objection to the Issue of Subpoena duces Tecum) IT-95-14-AR108 (1997), 110 ILR (1997) 607, at 707, para. 38. 54 See Brief for the United States of America as Amicus Curiae in Support of Affirmance (2007), Matar v. Dichter (2nd Cir. 2009): ‘the Executive generally recognizes foreign officials to enjoy immunity from civil suit with respect to their official acts – even including, at least in some situations, where the state itself may lack immunity under the FSIA’. 55 See Wickremasinghe, supra note 1, at 396; Fox, supra note 1, at 455–463. 56 Zoernsch v. Waldock [1964] 1 WLR 675, at 692 (England: CA, per Diplock LJ). For similar statements see Chuidian v. Philippine National Bank, 912 F 2d 1095, 1101 (9th Cir. 1990): ‘it is generally recognized that a suit against an individual acting in his official capacity is the practical equivalent of a suit against the sovereign directly’; Restatement (Third) of the Foreign Relations Law of the United States (1986), at para. 66: ‘immunity of a foreign state . . . extends to . . . any other public minister, official or agent of the state with respect to acts performed in his official capacity if the effect of exercising jurisdiction would be to enforce a rule of law against the state’; and Propend Finance Pty Ltd v. Sing, 111 ILR (1997) 611, at 669 (England: CA). Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 828 EJIL 21 (2011), 815–852 The next question to be considered is whether state officials are entitled to rely on immunity ratione materiae in foreign domestic proceedings in which the person is charged with an international crime. Three related points have been raised to argue that immunity ratione materiae cannot be relied upon to evade liability for international crimes. First, it has been argued that because state immunity is accorded only to sovereign acts, states and their officials can never be immune from the jurisdiction of other states in respect of international crimes because these crimes, for the most part, constitute violations of jus cogens norms and thus cannot be sovereign acts. A related second argument is that since immunity ratione materiae may be pleaded only in order to shield scrutiny from official acts, the acts amounting to international crimes may not be considered official acts. Thirdly, it has been argued that because jus cogens norms supersede all other norms they overcome all inconsistent rules of international law providing for immunity. The next two sections of this article address and reject these arguments. It is suggested that these arguments demonstrate a misunderstanding of the basis upon which state immunity is accorded and that they suggest a false conflict between the rule according state immunity and the relevant jus cogens norms. A more persuasive theory is suggested upon which removal of immunity ratione materiae can be based in criminal cases involving international crimes. It is argued that whilst international crimes can be official acts, immunity ratione materiae is removed as soon as a rule permitting the exercise of extra-territorial jurisdiction over that crime and contemplating prosecution of state officials develops. A International Crimes as (Non-)Sovereign/(Non-)Official Acts It has been argued that state immunity applies only in respect of sovereign acts and that international crimes, particularly those contrary to jus cogens norms,57 can never be regarded as sovereign acts.58 Similar arguments have been made to the effect that acts which amount to international crimes may never be regarded as official acts. According to some, when a state engages in acts which are contrary to jus cogens norms it impliedly waives any rights to immunity as the state has stepped out of the 57 Under Art. 53 Vienna Convention on the Law of Treaties (1969), 1155 UNTS 331, a peremptory norm of international law or jus cogens is ‘a norm accepted and recognized by the international community as a whole as a norm from which no derogation is permitted’. 58 This argument has generally been made in attempts to deny immunity in civil actions against states. See Bianchi, ‘Immunity Versus Human Rights: The Pinochet Case’, 10 EJIL (1999) 237, at 265: ‘human rights atrocities cannot be qualified as sovereign acts: international law cannot regard as sovereign those acts which are not merely a violation of it, but constitute an attack against its very foundation and predominant values’. See also Belsky, Merva, and Roht-Arriaza, ‘Implied Waiver Under the FSIA: A Proposed Exception to Immunity for Violations of Peremptory Norms of International Law’, 77 California LR (1989) 365, at 394: [t]he existence of a system of rules that states may not violate implies that when a state acts in violation of such a rule, the act is not recognized as a sovereign act. When a state act is no longer recognized as sovereign, the state is no longer entitled to invoke the defense of sovereign immunity’; Bianchi, ‘Denying State Immunity to Violators of Human Rights’, 46 Austrian J Public and Int’l L (1994) 195, at 205, 217; Reimann, ‘A Human Rights Exception to Sovereign Immunity: Some Thoughts on Prinz v. Federal Republic of Germany’, 16 Michigan J Int’l L (1995) 403, at 421–423; Orakhelashvili, ‘State Immunity and International Public Order’, 43 German Yrbk Int’l L (2002) 227, at 237. Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 Immunities of State Officials, International Crimes, and Foreign Domestic Courts 829 sphere of sovereignty.59 Essentially, the state has no authority to violate jus cogens norms and so these acts are not sovereign acts. This argument has proved attractive to some national courts. Prefecture of Voiotia v. Federal Republic of Germany concerned a civil claim for reparation following the atrocities committed by German forces in the Greek village of Distomo which resulted in the deaths of 200 civilians.60 The Court of First Instance in Greece, in a decision which was confirmed by the Supreme Court of Greece,61 awarded damages of approximately 30 million dollars relying on the argument that acts which violate jus cogens norms do not qualify as sovereign acts and that Germany had impliedly waived its immunity by committing such acts. However, other courts have not been convinced. The claimants in the Prefecture of Voiotia case tried to enforce their claim in Germany, but this was dismissed by the German Supreme Court which found that the argument applied by the Greek Supreme Court ‘[a]ccording to the prevailing view, . . . is not international law currently in force’.62 In a later case regarding the Distomo massacre, the Greek Special Supreme Court held by a narrow majority that state immunity is still a generally recognized international norm which prohibits actions for damages in relation to crimes, including torture, committed by the armed forces of another state.63 The Court held that there was not enough consistent or widespread state practice to demonstrate that there was an exception to the norm of state immunity. In the US case of Prinz v. Federal Republic of Germany,64 Prinz was a victim of the Nazi regime and claimed that Germany had impliedly waived its immunity when it violated jus cogens norms. The majority of the court rejected this argument, holding that ‘[a]n implied waiver depends upon the foreign government’s having at some point indicated its amenability to 59 Belsky, Merva, and Roht-Arriaza, supra note 58, at 394. 60 Prefecture of Voiotia v. Federal Republic of Germany, [1997] Revue Hellénique De Droit International 595 (Greece: Court of First Instance Leivadia, 1997). See Bantekas, ‘Case Comment: Prefecture of Voiotia v. Federal Republic of Germany’, 92 AJIL (1998) 765. 61 Albeit that the Supreme Court qualified the argument by emphasizing that the acts had taken place on Greek territory: Prefecture of Voiotia v. Germany, Case no. 11/2000 (Greece: Supreme Court, 2000). See Vournas, ‘Prefecture of Voiotia v. Federal Republic Of Germany: Sovereign Immunity and the Exception for Jus Cogens Violations’, 21 NY Law School J Int’l & Comp L (2002) 629; Gavouneli and Bantekas, ‘Prefecture of Voiotia v. Federal Republic of Germany’, 95 AJIL (2001) 198. 62 Greek Citizens v. Federal Republic of Germany (The Distomo Massacre Case), 42 ILM (2003) 1030 (Germany: Sup. Ct, 2003), at 1033. The German Supreme Court noted both a judgment of the Special Supreme Court of Greece on a similar issue in which it was held ‘that according to the current state of international law there still exists a generally recognized international norm, which prohibits that a State be sued in another State for damages in relation to crimes which were committed on the territory of the forum state with the participation of troops of the defendant State in times of war as well as in times of peace’ (Margellos v. Federal Republic of Germany (Greece: Anotato Eidiko Dikasterio, 2002)) and the decision of the ECtHR in App. No. 50021/00, Kalegoropoulou v. Greece and Germany, 2002-IX ECtHR 415, which declared the same applicants’ claim inadmissible. 63 Federal Republic of Germany v. Miltiadis Margellos, Case 6/17-9-2002 (Greece: Special Supreme Court, 2002). 64 Prinz v. Federal Republic of Germany 26 F 3d 1166 (DC Cir. 1994). Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 830 EJIL 21 (2011), 815–852 suit’.65 Only Judge Wald dissented from the majority opinion, arguing that ‘when a state thumbs its nose at [a jus cogens] norm in effect overriding the collective will of the entire international community, the state cannot be performing a sovereign act entitled to immunity’.66 The Italian Supreme Court explicitly rejected the contention that violations of jus cogens do not qualify as sovereign acts or that there is an implied waiver of sovereign immunity in Ferrini v. Federal Republic of Germany, 67 while Lord Hoffmann summarily dismissed the argument in Jones v. Saudi Arabia, stating that the ‘theory of implied waiver . . . has received no support in other decisions’.68 The argument that acts which amount to international crimes cannot be regarded as sovereign acts ultimately rests on the proposition that the gross illegality of the acts means that international law cannot regard them as acts which are open to states to perform. However, this argument is not persuasive and is riddled with problems. First, at the stage of proceedings during which immunity is raised it will not yet have been established that the state has acted illegally. Indeed, it may turn out that the allegations made against the state or official are unfounded. It would therefore be wrong to assert that the state, by acting in a grossly illegal manner, has deprived itself of the rights which it would otherwise be entitled to in international law and has implicitly waived its immunity. This assertion would be especially problematic in criminal cases, where there is a presumption of innocence. Secondly, whether or not an act is jure imperii or sovereign for the purposes of state immunity does not depend on the international legality or otherwise of the conduct, but on whether the act in question is intrinsically governmental. This in turn depends on an analysis of the nature of the act as well as the context in which it occurred.69 65 Ibid., at 1174. Other US cases where this argument has been dismissed include: Smith v. Socialist People’s Libyan Arab Jamahiriya, 101 F 3d 239 (CA, 2nd Cir., 1996); Persinger v. Islamic Republic of Iran, 90 ILR 486 (DC Cir. 1996); Sampson v. Federal Republic of Germany, 975 F Supp 1108 (ND Ill., 1997). 66 Ibid., at 1182. 67 Ferrini v. Repubblica Federale di Germania, 87 RDI (2004) 539 (Italy: Cassazione), at paras 7 and 8.2. See De Sena and de Vittor, ‘State Immunity and Human Rights: the Italian Supreme Court Decision on the Ferrini Case’, 16 EJIL (2005) 89, at 101–102; Focarelli, ‘Denying Foreign State Immunity for Commission of International Crimes: the Ferrini Decision’, 54 ICLQ (2005) 951, at 956–957. However, it should be noted that the Court did accept the normative hierarchy theory discussed infra. 68 Jones v. Saudi Arabia, supra note 52, at para. 62. See also Argentine Republic v. Amerada Hess Shipping Corporation, 488 US 428, 442–443 (1989) (US Sup. Ct). 69 See Lord Wilberforce in I Congresso del Partido [1981] 2 All ER 1064, at 1074 (HL): ‘in considering, under the restrictive theory, whether State immunity should be granted or not, the court must consider the whole context in which the claim against the State is made, with a view to deciding whether the relevant act(s) on which the claim is based should, in that context, be considered as fairly within an area of activity, trading or commercial or otherwise of a private law character, in which the State has chosen to engage or whether the relevant activity should be considered as having been done outside the area and within the sphere of governmental or sovereign activity’. See also Holland v. Lampen Wolfe [2000] 3 All ER 833 (HL), where Lord Hope stated that ‘it is the nature of the act that determines whether it is to be characterised as iure imperii or iure gestionis. The process of characterisation requires that the act must be considered in its context. In the present case the context is all-important. The overall context was that of the provision of educational services to military personnel and their families stationed on a US base overseas. The maintenance of the base itself was plainly a sovereign activity.’ For similar statements see also United States v. Public Service Alliance of Canada, 32 ILM (1993) 1 (Canada: Sup. Ct); Litterell v. USA (No. 2), 100 ILR (1995) 438 (England: CA); Egypt v. Gamal-Eldin [1996] 2 All ER237 (England: Employment Appeals Tribunal). Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 Immunities of State Officials, International Crimes, and Foreign Domestic Courts 831 International crimes committed by states usually occur in the context of the use of armed force or in the exercise of police power, and these are acts which are as intrinsically governmental as any other.70 State immunity is not designed to shield states from the consequences of their illegal conduct, although it cannot be denied that it can have this effect.71 The plea of state immunity does not mean that a state is not responsible in international law,72 and it has never been the case that immunity is only available for those acts which are internationally lawful.73 On the contrary, the very purpose of the rule according immunity is to prevent national courts from determining the legality or otherwise of certain acts of foreign states. Thus, it would be illogical if the application of that rule depended on a prior determination that conduct was illegal or grossly illegal. To say that an act is sovereign is not to say that it is an act permitted by international law or within a sphere of permitted acts. In fact, one consequence of the restrictive immunity theory is that it is precisely in those circumstances where international law has something to say about the acts of states, i.e., governmental or public acts, that national courts are precluded from acting.74 For much the same reasons as those discussed above, the related argument that international crimes can never be considered official acts protected from scrutiny by immunity ratione materiae must be rejected.75 This argument was relied upon by some judges of the House of Lords in the series of Pinochet cases in which it was held that a 70 In Nelson v. Saudi Arabia, 100 ILR (1993) 544, at 553 the US Sup. Ct stated that ‘however monstrous such abuse undoubtedly may be, a foreign state’s exercise of the power of its police has long been understood for purposes of the restrictive theory as peculiarly sovereign in nature’. See also Claim against the Empire of Iran, 45 ILR (1963) 57, at 81 (West Germany: Federal Constitutional Court): ‘[i]n this generally recognisable field of sovereign activity are included transactions relating to foreign affairs and military authority, the legislature, the exercise of police authority, and the administration of justice’. See further Propend Finance Pty. Ltd and others v. Sing, supra note 56; Argentine Republic v. Amerada Hess, supra note 68; Paprocki v. German State, 104 ILR (1995) 684 (England: High Ct). 71 See McGregor, ‘Torture and State Immunity: Deflecting Impunity, Distorting Sovereignty’, 18 EJIL (2007) 903. 72 ‘The immunity, where it exists, is from the local jurisdiction and not from legal (or State) responsibility on the international plane. The issue is, in part at least, a question of the appropriate forum’ (emphasis in original): Brownlie, ‘Preliminary Report on the Contemporary Problems Concerning the Jurisdictional Immunity of States’, 62-I Annuaire de L’Institut de Droit international (Cairo, 1987) 13, at 18. See also Fox, ‘International Law and Restraints on the Exercise of Jurisdiction by National Courts of States’, in M.D. Evans (ed.), International Law (3rd edn, 2010), 340, 351. See also Arrest Warrant case, supra note 9, at para. 59. 73 Jones v. Saudi Arabia, supra note 52, at para. 12 (per Lord Bingham). See generally Fox, supra note 1, at ch. 13. 74 Art. 2(3)(a) and (b), Res of the Institut de Droit International on ‘Contemporary Problems Concerning the Immunity of States in Relation to Questions of Jurisdiction and Enforcement’ (1991) indicates that the fact that a particular case involves the adjudication of the validity or legality of the acts of the defendant state in terms of international law itself indicates the incompetence of the forum court in the matter. See 64-II Annuaire de L’institut de Droit international (Basle, 1991), 338, 393–394. 75 See Tunks, supra note 7, at 659–660; Tomonori, supra note 1, at 283 ff. Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 832 EJIL 21 (2011), 815–852 former Head of State is not immune in respect of torture committed whilst in office.76 However, as stated above, whether or not acts of state officials are regarded as official acts does not depend on the legality, in international or domestic law, of those acts. Rather, whether or not the acts of individuals are to be deemed official depends on the purposes for which the acts were done and the means through which the official carried them out.77 If they were done for reasons associated with the policies of the state, as opposed to reasons which are purely those of the individual, and were carried out using state apparatus, i.e., under colour of law, then those acts should be considered official acts. Acts which constitute international crimes are often carried out by individuals invested with state authority and regularly undertaken for state rather than private purposes. Thus, ‘[t]o deny the official character of such offences is to fly in the face of reality’.78 Such acts are characterized as acts of the state for the purpose of imputing state responsibility,79 and it would be artificial to impose a different test in the context of individual responsibility.80 B Immunity and Jus Cogens Violations – Addressing the Normative Hierarchy Theory It has been argued that owing to the superior position of jus cogens norms in the hierarchy of international law, they must prevail over the rules of international law providing immunity.81 As was stated in Siderman de Blake v. Republic of Argentina, this argument: 76 See Pinochet (No.3), supra note 16, at 113, 166 (per Lords Browne-Wilkinson and Hutton); R. v. Bow Street Stipendiary Magistrate and others, ex parte Pinochet (No.1) [1998] 4 All ER 897, at 939–940, 945–946 (HL, per Lords Nicholls and Steyn). It is amazing that these judges could have reached this conclusion in respect of torture, which under Art. 1 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), 1465 UNTS 85 is limited to acts ‘of a public official or other person acting in an official capacity’ (emphasis added). See also the Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal in the Arrest Warrant case, supra note 9, at para. 85 and the Bouterse case, at para. 4.2 (Netherlands: Gerechtshof Amsterdam, 2000), cited in the Joint Separate Opinion above. A similar position has been taken in a number of US civil cases under the Alien Tort Claims Act. See, e.g., In re Estate of Ferdinand Marcos, 25 F 3d 1467, at 1469–1472 (9th Cir. 1994); Xuncax v. Gramajo, 886 F Supp 162, at 175 (D. Mass. 1995); Cabiri v. Assasie-Gyimah, 921 F Supp 1189, at 1197–1198 (SDNY 1996). 77 See Watts, supra note 1, at 56–57; Wirth, ‘Immunity for Core Crimes? The ICJ’s Judgment in the Congo v. Belgium Case’, 13 EJIL (2002) 877, at 891; Cassese, ‘When May Senior State Officials be Tried for International Crimes? Some Comments on the Congo v. Belgium Case’, 13 EJIL (2002) 853, at 867–870. 78 Barker, ‘The Future of Former Head of State Immunity After Ex Parte Pinochet’, 48 ICLQ (1999) 937, at 943. Taking the same view are Denza, ‘Ex Parte Pinochet: Lacuna or Leap’, 48 ICLQ (1999) 949, at 952; Cassese, supra note 77, at 870 (who argues that it would be artificial to consider international crimes committed by senior state officials as private acts). See also the views of the Prosecutor dismissing a complaint seeking the prosecution in France of former US Defence Secretary, Donald Rumsfeld, for torture, discussed in Gallagher, ‘Universal Jurisdiction in Practice: Efforts to Hold Donald Rumsfeld and Other High Level United States Officials Accountable for Torture’, 7 J Int’l Criminal Justice (2009) 1087, at 1110–1111. 79 See Arts 4 and 7, International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts 2001, UN Doc. A/CN.4/L.602. 80 See Jones v. Saudi Arabia, supra note 52, at paras 74–78 (per Lord Hoffmann). 81 See Bianchi, supra note 58, at 265: ‘[a]s a matter of international law, there is no doubt that jus cogens norms, because of their higher status, must prevail over other international rules, including jurisdictional immunities’. See also Reimann, supra note 58, at 421–423; Byers, ‘Comment on Al-Adsani v. Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 Immunities of State Officials, International Crimes, and Foreign Domestic Courts 833 begins from the principle that jus cogens norms ‘enjoy the highest status within international law,’ and thus ‘prevail over and invalidate . . . other rules of international law in conflict with them’. . . since sovereign immunity itself is a principle of international law, it is trumped by jus cogens. In short, . . . when a state violates jus cogens, the cloak of immunity provided by international law falls away, leaving the state amenable to suit.82 However, this argument is unpersuasive. First, it should be noted that although it has been stated that ‘most norms of international humanitarian law, in particular those prohibiting war crimes, crimes against humanity and genocide, are also peremptory norms of international law or jus cogens’,83 it is by no means established that all rules prohibiting international crimes are prohibitions that rise to the level of jus cogens. While the prohibitions of aggression,84 genocide,85 and torture86 would seem clearly to fall into that category, it is doubtful that other rules of international humanitarian law are norms of jus cogens. Doubts whether many of the rules of international humanitarian law rise to the level of jus cogens can be seen in the debate about belligerent reprisals. To the extent that some violations of humanitarian law can be legally justified as belligerent Kuwait’, 67 British Yrbk Int’l L (1996) 537, at 539–540; Orakhelashvili, ‘State Immunity in National and International Law: Three Recent Cases Before the European Court of Human Rights’, 15 Leiden J Int’l L (2002) 703, at 712–713; Orakhelashvili, ‘International Decisions: Arrest Warrant case’, 96 AJIL (2002) 677; Orakhelashvili, supra note 58, at 255 ff; Karagiannakis, ‘State Immunity and Fundamental Human Rights’, 11 Leiden J Int’l L (1998) 9; Orakhelashvili, ‘State Immunity and Hierarchy of Norms: Why the House of Lords Got it Wrong’, 18 EJIL (2007) 955, at 964: ‘[t]here is solid doctrinal support for the approach that jus cogens trumps state immunity before national court, and this has been the case throughout the whole period in which this issue has been arising in practice’. 82 Siderman de Blake v. Republic of Argentina, 965 F 2d 699, at 718 (CA 9th Cir. 1992). A similar argument was made and accepted in Ferrini v. Federal Republic of Germany (2004), Cass sex un 5044/04; 87 Rivista di diritto internazionale (2004) 539 (Italy: Cassazione); Prefecture of Voiotia v. Federal Republic of Germany (2000), Case No. 11/2000 (Greece: Court of Cassation); Lozano 91 Rivista di diritto internazionale (2008) 1223 (Italy: Cassazione); FRG v. Mantelli and others, Order No. 14201 (2008) (Italy: Cassazione); Milde (‘Civitella’), 92 Rivista di diritto internazionale (2009) 618 (Italy: Cassazione); and by six of the dissenting judges (Rozakis and Caflisch, joined by Wildhaber, Costa, Cabral Barreto, and Vajić) in App. No. 35763/97, Al-Adsani v. United Kingdom, 34 EHRR (2002) 11. In 2008, the rash of Italian judgments against Germany became the subject of proceedings before the ICJ when Germany initiated proceedings against Italy, claiming that ‘Italian judicial bodies have repeatedly disregarded the jurisdictional immunity of Germany as a foreign State’: Jurisdictional Immunities of the State (Germany v. Italy), press release no. 2008/44, 23 Dec. 2008, available at: www.icj-cij.org/docket/files/143/14925.pdf. 83 Prosecutor v. Kupreškić et al, IT-95-16 (ICTY: Trial Chamber, 2000), at para. 520. For similar assertions see Cassese, supra note 15, at 203. In the Nuclear Weapons Advisory Opinion (Request by General Assembly) [1996] ICJ Rep 226, the ICJ was evasive on this point. On the one hand, it stated (at para. 79) that ‘a great many rules of humanitarian law’ were ‘fundamental rules’ which ‘constitute intransgressible principles of international customary law’. However, the Court stated later in the same opinion (at para. 83) that while it had been argued that the rules and principles of humanitarian law were part of jus cogens, there was ‘no need for the Court to pronounce on this matter’. 84 See Nicaragua v. USA, supra note 42, at para. 190. 85 See Judge ad hoc Elihu Lauterpacht, in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Further Request for Provisional Measures, Order of 13 Sept. 1993 [1993] ICJ Rep 325, at 440. 86 See Prosecutor v. Furundžija, Judgment, Case No. IT-95-17/1-T (1998), 121 ILR 213, at 260 (ICTY: Trial Chamber), para. 153; Al-Adsani v. UK, supra note 82, at paras 60–61. Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 834 EJIL 21 (2011), 815–852 reprisals,87 it is not possible to assert that those rules are jus cogens norms. Despite the considerable extension of the prohibition of belligerent reprisals in the First Additional Protocol to the Geneva Conventions,88 the prohibitions in that instrument cannot be regarded as representing customary international law89 – let alone jus cogens – given the opposition of countries such as the US, UK, and France to those provisions.90 Secondly, it is difficult to see how the rules concerning state immunity91 come into conflict with norms of jus cogens. 92 The main purpose and effect of such immunities is to prevent adjudication of such violations in the domestic courts of other states. For the granting of immunity to come into proper conflict with those jus cogens norms prohibiting certain international crimes, it would have to be argued that (i) there is an obligation on third states (i.e., states other than that responsible for the violation) to prosecute the crime in their domestic courts (or in civil cases to provide a civil remedy) and (ii) that this obligation itself is a rule of jus cogens. 93 Each step of this argument is tenuous and fraught with difficulties. 87 Belligerent reprisals are defined as ‘coercive measures which would normally be contrary to international law but which are taken in retaliation by one party to a conflict in order to stop the adversary from violating international law’. See Oeter, ‘Methods and Means of Combat’, in Fleck (ed.), supra note 50, at 232. See generally F. Kalshoven, Belligerent Reprisals (1971). 88 See Hampson, ‘Belligerent Reprisals and the 1977 Protocols to the Geneva Conventions 1949’, 37 ICLQ (1988) 818; Greenwood, ‘The Twilight of the Law of Belligerent Reprisals’, 20 Netherlands Yrbk Int’l L (1989) 35; Kalshoven, ‘Belligerent Reprisals Revisited’, 21 Netherlands Yrbk Int’l L (1990) 43. 89 For the view that Art. 51(6), Protocol Additional to the Geneva Conventions of 12 August 1949 (1977), 1125 UNTS 3, which prohibits reprisals against civilians, constitutes a rule of customary international law see Prosecutor v. Kupreškić, supra note 83, at paras 521–536; and Rule 146 ICRC Customary Study which provides that ‘Belligerent reprisals against persons protected by the Geneva Conventions are prohibited’: J. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law, Volume 1 (2005), at 519, especially at 520–523. 90 See Greenwood, supra note 88, at 63–64; Kalshoven, supra note 87, at 53; Oeter, supra note 87, at 206– 207; R. Cryer et al., An Introduction to International Criminal Law and Procedure (2nd edn, 2010), at 421. See also Prosecutor v. Kupreškić, supra note 83, at 532–533. See UK Ministry of Defence, The Manual of the Law of Armed Conflict (2004), at 422–423. 91 This applies equally to the rules regarding diplomatic immunity. 92 See Fox, supra note 1, at 525: ‘[s]tate immunity is a procedural rule going to the jurisdiction of a national court. It does not go to substantive law; it does not contradict a prohibition contained in a jus cogens norm but merely diverts any breach of it to a different method of settlement. Arguably, then, there is no substantive content in the procedural plea of State immunity upon which a jus cogens mandate can bite.’ Lady Fox’s argument was cited with approval in Jones v. Saudi Arabia by both Lords Bingham and Hoffmann: see supra note 52, at paras 24 and 44. See also Voyiakis, ‘Access to Court v. State Immunity’, 52 ICLQ (2003) 297, at 321: ‘it is not all clear how the prohibition of torture and the law of State immunity could collide in the first place. To risk some triviality, the prohibition of torture seems mainly about prohibiting the practice of torture, whereas the rules of State immunity are mainly about the exercise of jurisdiction over foreign States.’ 93 This argument was presented by Judge Al-Khasawneh in his dissenting opinion in the Arrest Warrant case, supra note 9, at para. 7. Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 Immunities of State Officials, International Crimes, and Foreign Domestic Courts 835 Undoubtedly, there are some rules which impose obligations on third states to prosecute some international crimes, for example those rules concerning grave breaches of the Geneva Conventions94 and torture.95 However, in other cases of war crimes or crimes against humanity there is no recognized obligation on third states to institute criminal prosecutions,96 even if there may be a right to do so.97 Similarly, although there have been judicial and quasi-judicial dicta suggesting otherwise,98 there is no obligation on third states to provide a civil remedy.99 Indeed it would be strange if the violation of a jus cogens norm automatically conferred jurisdiction on foreign national courts by setting aside the rules of state immunity when such violations do not automatically confer jurisdiction on international courts.100 Furthermore, even in the 94 Art. 49, First Geneva Convention (1949), 75 UNTS 31; Art. 50, Second Geneva Convention (1949), 75 UNTS 85; Art. 129, Third Geneva Convention (1949), 75 UNTS 135; Art. 146, Fourth Geneva Convention, (1949), 75 UNTS 287; Art. 85(1), First Additional Protocol to the 1949 Geneva Conventions (1977), supra note 89. 95 Art. 7, Convention Against Torture 1984, supra note 76. 96 See B. Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law (2003), at 111–112; Meron, ‘International Criminalization of Internal Atrocities’, in T. Meron, War Crimes Law Comes of Age (1998), 228, at 249–256. 97 In Prosecutor v. Furundžija, Judgment, supra note 86, at para. 156, the ICTY held that ‘[a]t the individual level, that is, of criminal liability, it would seem that one of the consequences of the jus cogens character bestowed by the international community upon the prohibition of torture is that every State is entitled to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction. Indeed, it would be inconsistent on the one hand to prohibit torture to such an extent as to restrict the normally unfettered treaty-making power of sovereign States, and on the other hand bar States from prosecuting and punishing those torturers who have engaged in this odious practice abroad’ (emphasis added.) See also Pinochet (No. 3), supra note 16, at 109 (per Lord BrowneWilkinson), 177 (per Lord Millett). 98 See dicta by the ICTY in Prosecutor v. Furundžija, supra note 86. The Committee Against Torture also made similar statements in its Concluding Comments on Canada, 7 July 2005, CAT/C/CR/34/CAN, at paras 4(g) and 5(f); Concluding Observations on Republic of Korea, 25 July 2006, CAT/C/KOR/CO/2, at para. 8(a); Concluding Observations on Japan, 3 Aug. 2007, CAT/C/JPN/CO/1, at para. 23; and Concluding Observations on New Zealand, 14 May 2009, at para. 14. See also Hall, ‘The Duty of States Parties to the Convention against Torture to Provide Procedures Permitting Victims to Recover Reparations for Torture Committed Abroad’, 18 EJIL (2007) 921. Reference may also be made to the limited practice of immunity being lifted in civil cases under the US Alien Tort Claims Act 1789, 28 USC § 1350. 99 See Jones v. Saudia Arabia, supra note 52, where it was held that there was ‘no adequate foundation in any international convention, State practice or scholarly consensus’ for such a practice (per Lord Bingham, at para. 34). In his judgment, Lord Hoffmann stated that for the claimants to succeed with this argument it was ‘necessary to show that the prohibition on torture has generated an ancillary procedural rule which, by way of exception to State immunity, entitles or perhaps requires States to assume civil jurisdiction over other States in cases in which torture is alleged’. See also Fox, supra note 1, at 525, and Bouzari v. Iran (2002), 124 ILR 427 (Canada: Ontario Sup. Ct, approved on appeal 2004), at paras 43–56, holding that Art. 14(1) Torture Convention, supra note 76, which provides that states parties ‘shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation’, does not impose an obligation on parties to provide a civil remedy in respect of torture committed by another state. 100 See East Timor Case (Portugal v. Australia) [1995] ICJ Rep 90; Armed Activities on the Territory of the Congo (New Request, 2002) (Congo v. Rwanda), Jurisdiction and Admissibility [2006] ICJ Rep 6, at para. 64. For the argument that state immunity is based on the consent rule applicable to international tribunals see Crawford, ‘International Law and Foreign Sovereigns: Distinguishing Immune Transactions’, 53 British Yrbk Int’l L (1983) 75, at 79–85. Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 836 EJIL 21 (2011), 815–852 minority of cases where there is an obligation to prosecute, it would be erroneous to suggest that the obligation is peremptory or of a jus cogens character. The jus cogens obligation is the rule prohibiting the act and not the rule requiring a prosecution by third states. It is the state which has committed the act that is in violation of a norm of jus cogens, and not the state which has failed to prosecute or provide a civil remedy. If the obligation to prosecute were jus cogens, it would prevail over other norms of international law and there would be an obligation to prosecute even in situations where such a prosecution would violate the rights of the individual concerned or that of other states. This is clearly not the current situation. Some have suggested that wherever there is a violation of a norm of jus cogens this gives rise to a right on the part of third states to exercise universal jurisdiction.101 It may then be argued that if this right to universal jurisdiction is an effect which is derived from a jus cogens norm it is itself peremptory and prevails over any inconsistent rights of states. However, this is to read too much into jus cogens prohibitions. In the first place, it is doubtful that violations of jus cogens norms automatically confer the right to exercise universal jurisdiction. Apart from the prohibition of torture and that of genocide, a further prohibition which is indisputably accepted to have attained jus cogens character is the prohibition of aggression.102 Nevertheless, there is no universal jurisdiction over the crime of aggression.103 The ILC has stated that individual states are not competent to prosecute leaders of other states for the crime of aggression and there is no state practice which would support such a right.104 Similarly, it is 101 See Prosecutor v. Furundzija, ICTY Trial Chamber, Dec. 1998, at para. 156: ‘it would seem that one of the consequences of the jus cogens character bestowed by the international community upon the prohibition of torture is that every State is entitled to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction’. See A. Orakhelashvili, Peremptory Norms in International Law (2006), at 288–319 and 340–357: ‘[i]f jus cogens crimes are peremptorily outlawed as crimes, then the duty to prosecute or extradite their perpetrators must be viewed as peremptory’ (at 305) ‘under international law peremptory rules such as core norms of human rights law prevail over non-peremptory norms of immunities. Also in the case of international crimes outlawed under jus cogens, such as crimes against humanity, it must be accepted that the principles of immunity have no peremptory status and that the conflict between the two sets of norms must be resolved considering the framework of normative hierarchy giving primacy to the relevant peremptory norm’ (at 343). 102 See J. Crawford, The International Law Commission’s Articles on State Responsibility (2002), at 188 (para. 5 of commentary to Art. 26). 103 See Akande, ‘Prosecuting Aggression: The Consent Problem and the Security Council Issue’, Oxford ELAC Working Paper (May 2010), available at: www.elac.ox.ac.uk/downloads/dapo%20akande% 20working%20paper%20may%202010.pdf. See also Res. RC/Res. 6 adopted at the Kampala Review Conference by states parties to the Statute of the International Criminal Court (June 2010), Annex III, ‘Understandings regarding the amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression’, at para. 5: ‘[i]t is understood that the amendments [relating to aggression] shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State’. 104 ‘The aggression attributed to a State is a sine qua non for the responsibility of an individual for his participation in the crime of aggression. An individual cannot incur responsibility for this crime in the absence of aggression committed by a State. Thus, a court cannot determine the question of individual criminal responsibility for this crime without considering as a preliminary matter the question of aggression by a State. The determination by a national court of one State of the question of whether another State had committed aggression would be contrary to the fundamental principle of international law par in Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 Immunities of State Officials, International Crimes, and Foreign Domestic Courts 837 asserted by some that the obligation to respect the right of self-determination has a jus cogens character.105 However, there is no practice to support the view that violation of this obligation gives rise to individual international criminal responsibility or that all states have the right to prosecute such violators. Even if the right to universal jurisdiction were to flow directly from the peremptory nature of a prohibition, it does not follow that the right is itself of jus cogens character. Secondary norms which emerge as a consequence of violations of norms of jus cogens are not themselves necessarily of overriding effect. For example, it is recognized that all states have a duty not to recognize as lawful situations created by breaches of jus cogens. 106 However, it follows from the ICJ’s decision in the Namibia (South West Africa) advisory opinion that this secondary norm does not have peremptory effect and gives way to humanitarian concerns which may arise where non-recognition would cause serious harm to private rights.107 It would have to be demonstrated that a norm which emerges from another jus cogens norm is (to use the words of Article 53 of the Vienna Convention on the Law of Treaties) itself accepted by the international community as a whole as a peremptory norm from which no derogation is permitted. This is clearly not the case with regard to any obligation or right to exercise universal jurisdiction, since there is still debate whether some of those norms are even to be found at all in customary international law. To summarize, a failure by a third state to prosecute those accused of committing an international crime (or to provide a civil remedy), as a result of an immunity, is in many cases not a breach of any international obligation. Furthermore, even where there is an obligation on third states to prosecute (or a right to prosecute or provide a civil remedy) that obligation does not rise to the level of jus cogens. Therefore, there is no conflict between rules of immunity and the jus cogens nature of the prohibition. Thirdly, the argument that there is no immunity in cases alleging violations of jus cogens norms has been both explicitly and implicitly rejected by two international tribunals. The European Court of Human Rights (ECtHR) has held in a number of cases that the fact that there is a violation of a jus cogens norm does not of itself supersede the parent imperium non habet. Moreover, the exercise of jurisdiction by the national court of a State which entails consideration of the commission of aggression by another State would have serious implications for international relations and international peace and security’: Commentary to Art. 8, ILC Draft Code of Crimes Against the Peace and Security of Mankind, 1996, available at: http://untreaty.un.org/ilc/texts/ instruments/english/commentaries/7_4_1996.pdf. 105 See the International Law Commission’s Commentary to Art. 26 of the Articles on the Responsibility of States, in Crawford, supra note 102, at 188, para. 5; Separate Opinion of Judge Ammoun, Barcelona Traction [1970] ICJ Rep 304; I. Brownlie, Principles of Public International Law (7th edn, 2008), at 511; and Cassese, supra note 15, at 203. 106 See Art. 41(2), ILC Articles on State Responsibility in Crawford, supra note 102. 107 ‘[T]he non-recognition of South Africa’s administration of the Territory should not result in depriving the people of Namibia of any advantages derived from international co-operation . . . the effects of which can be ignored only to the detriment of the inhabitants of the territory’: Legal Consequences for States of the Continued Presence of South African in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) [1971] ICJ Rep 16, at para. 125. Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 838 EJIL 21 (2011), 815–852 rules of state immunity. In Al-Adsani v. United Kingdom, a slim majority of the ECtHR (nine votes to eight) held that the grant of state immunity in a case involving an allegation of torture by a foreign state was consistent with international law and therefore not a denial of the right of access to a court. While the majority of the ECtHR acknowledged that the prohibition of torture was a peremptory norm of international law, it held that: Notwithstanding the special character of the prohibition of torture in international law, the Court is unable to discern in international instruments, judicial authorities or other materials before it any firm basis for concluding that, as a matter of international law, a State no longer enjoys immunity from civil suit in the courts of another State where acts of torture are alleged.108 This view has since been followed by broader majorities of the ECtHR in other cases.109 These cases dealt only with the immunity of states from civil actions. However, if the ECtHR had accepted the normative hierarchy theory and was of the view that the jus cogens prohibition prevailed over immunity in criminal cases, it is difficult to see how such a prohibition would not also override immunity in civil cases as well. Furthermore, in the Arrest Warrant case, the ICJ held that the immunities ratione personae of senior state officials such as the Head of State, Head of Government, and Foreign Minister continue to apply even when they are alleged to have committed acts constituting international crimes.110 Unless it is asserted that the rule granting immunity ratione personae is itself a rule of jus cogens,111 the ICJ’s decision is a further, albeit implicit, rejection of the argument under consideration. C The ICJ’s Obiter Dictum in the Arrest Warrant Case In the Arrest Warrant case, the ICJ appeared to suggest that immunity ratione materiae would bar the prosecution of officials or former officials for international crimes committed whilst in office. This suggestion is implicit in a paragraph of the Court’s judgment in which the Court listed the circumstances in which the immunities of an incumbent or former Foreign Minister would not act as a bar to criminal prosecution.112 According to the Court, these circumstances included prosecution (i) in the home country of the Foreign Minister; (ii) where the immunity has been waived by 108 Al-Adsani v. United Kingdom, supra note 82, at para. 61. A similar conclusion was reached by the British Branch of the Human Rights Section of the International Law Association, ‘Report on Civil Actions in the English Courts for Serious Human Rights Violations Abroad’ [2001] European Human Rts L Rev 129. 109 See also App. No. 59021/00, Kalogeropoulou v. Greece & Germany, supra note 62; App. No. 14717.06, Grosz v. France, Admissibility Decision, 16 June 2009 (ECtHR). 110 Arrest Warrant case, supra note 9, at para. 58. Although note the dissenting opinions of Judges Al-Khasawneh and Van den Wyngaert, ibid., at 7 and 28 respectively. 111 While some support this view (see Black-Branch, ‘Sovereign Immunity Under International Law: The Case of Pinochet’, in D. Woodhouse (ed.), The Pinochet Case: A Legal and Constitutional Analysis (2000), 93, at 101; Pinochet (No. 3), supra note 18, at 149 (per Lord Hope)), it is untenable since immunity ratione personae can always be waived or set aside by treaty. Indeed, it has been argued elsewhere that Art. 27 Rome Statute of the International Criminal Court (1998), 2187 UNTS 3, constitutes a treaty waiver of immunity ratione personae. See Akande, supra note 2, at 419–421. 112 Arrest Warrant case, supra note 9, at para. 61. Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 Immunities of State Officials, International Crimes, and Foreign Domestic Courts 839 the state of the Foreign Minister; (iii) of a former Foreign Minister in the courts of another state ‘in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity’;113 and (iv) before certain international criminal tribunals which have jurisdiction. The third circumstance in this list deals with immunity ratione materiae and makes clear that state officials possess immunity in relation to official acts committed whilst in office. However, since this list was constructed in a case involving allegations of international crimes, it may be significant that the Court failed specifically to refer to immunities of former officials in such cases. This omission might suggest that the Court took one of two views. First, the Court may have taken the view that international crimes are to be regarded as private acts and that, in line with the third circumstance in the Court’s list, there is therefore no immunity with respect to such acts. However, as argued above, the categorization of international crimes as always being private acts is wrong. Secondly, the Court may have taken the view that international crimes committed by state officials are official acts and may be regarded as suggesting that immunity ratione materiae continues to exist in proceedings before foreign national courts relating to those crimes. This would be contrary to extensive post-World War II practice. It will be argued below that this interpretation would be wrong. A further possibility, however, is that the Court’s list is non-exhaustive and does not preclude the possibility that there is a rule removing immunity ratione materiae in relation to prosecutions for acts amounting to international crimes. D The Relationship Between Immunity Ratione Materiae, Individual Criminal Responsibility, and Extra-Territorial Jurisdiction Despite the fact that international crimes when committed by state officials in their official capacity are to be categorized as official acts, there are good reasons for arguing that international law is now at a stage where immunity ratione materiae does not apply in relation to such crimes.114 There have been a significant number of national prosecutions of foreign state officials for international crimes.115 All of these decisions proceed – at least implicitly (and sometimes explicitly116) – on the basis of a 113 Ibid. 114 See Art. III(1), Resolution on the Immunity from Jurisdiction of the State and of Persons Who Act on Behalf of the State in case of International Crimes, Institut de Droit International (2009): ‘[n]o immunity from jurisdiction other than personal immunity international law applies with regard to international crimes’. See Cassese, supra note 77, at 870 ff; Cassese, supra note 15, at 305 ff; Gaeta, supra note 15, at 981–983; Zappalà, supra note 15, at 601–605; Wirth, supra note 77. 115 See Cassese, supra note 77, at 870–871, referring to cases in which Israeli, French, Italian, Dutch, British, US, Polish, Spanish, and Mexican courts have entertained proceedings against foreign state officials (particularly foreign military officers) in respect of war crimes, crimes against humanity, and genocide; Cryer et al., supra note 90, at ch. 4. 116 See, e.g., Eichmann, supra note 71, at 44–48 (Israel: Ct of Jerusalem), at 308–311 (Israel Sup. Ct); Pinochet (No. 3), supra note 16. See also the Lozano Case (Cassazione, 2008), discussed in Cassese, ‘The Italian Court of Cassation Misapprehends the Notion of War Crimes: The Lozano Case’, 6 JICJ (2008) 1077, where the Court accepts that there is no immunity ratione materiae with respect to international crimes but appears to misconstrue the criteria for war crimes. Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 840 EJIL 21 (2011), 815–852 lack of immunity ratione materiae in respect of such crimes. The best explanation for the absence of immunity ratione materiae in cases concerning international crimes is that the principle is necessarily in conflict with more recent rules of international law and it is the older rule of immunity which must yield. Developments in international law now mean that the reasons for which immunity ratione materiae are conferred simply do not apply to prosecutions for international crimes.117 As set out above, the first reason for this type of immunity is that official acts done by individuals are deemed to be acts of the state for which it is the state and not the individual which is responsible. However, this general principle does not apply to acts which amount to international crimes, because there is a further, newer, principle that the official position of an individual does not exempt him/her from individual responsibility for international crimes.118 As the Nuremberg Tribunal stated: The principle of international law which under certain circumstances protects the representatives of a State, cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings.119 Indeed, the very purpose of international criminal law is to attribute responsibility to individuals, including state officials, and to defeat the defence of official capacity or act of state. Since acts amounting to international law crimes are to be attributed to the individual, there is less need for a principle which shields those officials from responsibility for acts which are to be attributed solely to the state. The newer rule of attribution supersedes the earlier principle of immunity which seeks to protect nonresponsibility. Similarly, the development of principles permitting the exercise by states of extraterritorial jurisdiction in relation to international crimes suggests that international law now contemplates that states may exercise jurisdiction over some official acts of foreign states in the context of considering individual criminal responsibility for such acts. This development means that the second purpose that immunity ratione materiae serves (preventing national courts from indirectly exercising control over acts of foreign states through proceedings against foreign officials) is also inapplicable in the case of domestic prosecutions for international crimes. In the Arrest Warrant case, the ICJ held: 117 For a similar view see McGregor, supra note 71, at 912–918. 118 See Art. 7, London Agreement for the International Military Tribunal at Nuremberg (1945), 82 UNTS 279; Art. 6, Charter of the International Military Tribunal for the Far East (1946), TIAS 1589; Art. 7(2), Statute of the International Criminal Tribunal for the Former Yugoslavia (1993), UN SC Res 827 (1993); Art. 6(2), Statute of the International Criminal Tribunal for Rwanda (1994), UN SC Res 995 (1994); Art. 27(1), ICC Statute, supra note 111; and Art. 6(2), Statute of the Special Court for Sierra Leone (2002), available at: www.sc-sl.org. While these treaty texts apply to the respective tribunals, there is no doubt that this lack of a substantive defence is now a principle of international law applicable even with respect to domestic prosecutions. See the works cited supra in note 114. 119 In re Goering and others (1946), 13 ILR 203, at 221. Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 Immunities of State Officials, International Crimes, and Foreign Domestic Courts 841 the rules governing the jurisdiction of national courts must be carefully distinguished from those governing jurisdictional immunities: jurisdiction does not imply absence of immunity, while absence of immunity does not imply jurisdiction. Thus, although various international conventions on the prevention and punishment of certain serious crimes impose on States obligations of prosecution or extradition, thereby requiring them to extend their criminal jurisdiction, such extension of jurisdiction in no way affects immunities under customary international law, including those of Ministers of Foreign Affairs. These remain opposable before the courts of a foreign State, even where those courts exercise such a jurisdiction under these conventions.120 It is generally correct to say that jurisdiction does not imply an absence of immunity – indeed, immunity is generally speaking an exception to an otherwise applicable jurisdiction.121 However, it must be remembered that the Court was considering the immunity ratione personae available to serving senior state officials. The position with regard to immunity ratione materiae is different. There may well be circumstances in which a rule providing for jurisdiction may by itself override an immunity which would otherwise be available. This will clearly be the case where a subsequent jurisdictional rule is practically co-extensive with a prior rule according immunity. By practically co-extensive we mean that both rules apply in large measure to the same set of circumstances. In such circumstances, there will be a conflict between the later jurisdictional rule and the prior rule of immunity so that the two cannot be applied simultaneously. Where the application of the prior immunity would deprive the subsequent jurisdictional rule of practically all meaning, then the only logical conclusion must be that the subsequent jurisdictional rule is to be regarded as a removal of the immunity. Even where the subsequent jurisdictional rule is not practically co-extensive with the rule according immunity, the subsequent jurisdictional rule will remove immunity where the jurisdictional rule contemplates and provides authority for national proceedings in circumstances which would otherwise be covered by immunity. In this latter circumstance, the jurisdictional rule will apply to scenarios covered by the immunity rule (i.e., prosecution of state officials) and cases outside that rule (e.g., prosecution of non-state actors). However, the fact that the jurisdictional rule gives authority to foreign domestic courts in cases which are covered by the immunity rule suggests that foreign domestic courts are competent in those cases to adjudicate on acts of the foreign state. These principles constitute the best explanation for the decision by the House of Lords in Pinochet (No. 3). As was stated by most of the judges in that case, a grant of immunity ratione materiae would have been inconsistent with those provisions of the Torture Convention according universal jurisdiction for torture.122 The Torture Convention defines torture as ‘any act by which severe pain or suffering, whether physical 120 Arrest Warrant case, supra note 9, at para. 59; see also the Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal, ibid., at para. 4. 121 Caplan, ‘State Immunity, Human Rights and Jus Cogens: A Critique of the Normative Hierarchy Theory’, 97 AJIL (2003) 741, at 756–757. 122 See Pinochet (No. 3), supra note 16, at 114, 169–170, 178–179, 190 (per Lords Browne-Wilkinson, Saville, Millett, Phillips). Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 842 EJIL 21 (2011), 815–852 or mental, is intentionally inflicted for [certain] purposes . . . when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or any other person acting in an official capacity’.123 The jurisdiction provisions of the Convention envisage that states parties must legislate to ensure that all acts of torture are offences under its criminal law,124 and in situations where an alleged perpetrator of torture is present on the territory of a contracting party that state will either prosecute or extradite the individual to a state where he or she will be prosecuted.125 Since the Torture Convention limits the offence of torture to acts committed in an official capacity, extra-territorial prosecution can occur only in cases where immunity ratione materiae would ordinarily be applicable. However, application of immunity ratione materiae would deprive the jurisdiction provisions of the Convention of practically all meaning. Such a result would be contrary to the object and purpose of the treaty, and therefore it was held in Pinochet (No. 3) that immunity ratione materiae must be regarded as having been displaced.126 Similarly, the crime of enforced disappearance as defined by Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance can be perpetrated only by ‘agents of the State’ or ‘persons or groups of persons 123 Art. 1, Convention Against Torture, supra note 76. 3 124 By obliging states parties to legislate against all acts of torture, the Convention prescribes for universal jurisdiction. See O’Keefe, ‘Universal Jurisdiction. Clarifying the Basic Concept’, 2 JICJ (2004) 735, who argues that universal jurisdiction is a particular form of the jurisdiction to prescribe where there is no link between the prescribing state and the offender at the time of the commission of the offence. 125 Arts 4, 5, and 7, Convention Against Torture, supra note 76. See Guengueng v. Senegal (181/01), CAT/ C/36/D/181/2001 (Committee Against Torture). On 19 Feb. 2009, Belgium instigated proceedings against Senegal before the ICJ in relation to the failure of Senegal to fulfil its obligations set out in the Convention against Torture to prosecute or extradite Hissène Habré, former President of Chad: see Questions Relating to the Obligation to Prosecute or Extradite (Senegal v. Belgium), Provisional Measures, 2009, ICJ Press Release 2009/13, 19 Feb. 2009. 126 Lord Saville stated in Pinochet (No. 3), supra note 16, at 169–170 that ‘[s]o far as the states that are parties to the Convention are concerned, I cannot see how, so far as torture is concerned, this immunity [ratione materiae] can exist consistently with the terms of that Convention. Each state party has agreed that the other state parties can exercise jurisdiction over alleged official torturers found within their territories, by extraditing them or referring them to their own appropriate authorities for prosecution; and thus to my mind can hardly simultaneously claim an immunity from extradition or prosecution that is necessarily based on the official nature of the alleged torture. Since 8 December 1988 Chile, Spain and this country [the UK] have all been parties to the Torture Convention. So far as these countries at least are concerned it seems to me that from that date these state parties are in agreement with each other that the immunity ratione materiae of their former heads of state cannot be claimed in cases of alleged official torture. In other words, so far as the allegations of official torture against Senator Pinochet are concerned, there is now by this agreement an exception or qualification to the general rule of immunity ratione materiae.’ According to Lord Millett, ‘[t]he definition of torture, . . . in the Convention . . . is in my opinion entirely inconsistent with the existence of a plea of immunity ratione materiae. The offence can be committed only by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. The official or governmental nature of the act, which forms the basis of the immunity, is an essential ingredient of the offence. No rational system of criminal justice can allow an immunity which is coextensive with the offence.’ Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 Immunities of State Officials, International Crimes, and Foreign Domestic Courts 843 acting with the authorisation, support or acquiescence of the State’.127 Articles 4, 9, and 11(1) establish a set of obligations on states parties to legislate for the crime of enforced disappearance, and prosecute or extradite individuals suspected of committing enforced disappearances similar to those provided for in the Torture Convention. Once again, it would defeat the purpose of this treaty regime if immunities were allowed to bar prosecutions of individuals in the courts of third states. In summary, where extra-territorial jurisdiction exists in respect of an international crime and the rule providing for jurisdiction expressly contemplates prosecution of crimes committed in an official capacity, immunity ratione materiae cannot logically co-exist with such a conferment of jurisdiction. While most international crimes (i.e., genocide, war crimes, and crimes against humanity) as defined in the ICC Statute and other relevant conventions are not limited to official acts (as is the case with torture and enforced disappearance), it is clearly the case that these crimes are intended to capture the conduct of those acting in the exercise of official capacity.128 In fact, when most of these international crimes were originally created, they were intended, primarily, to cover state action,129 and it is only more recently that they have been extended to cover private (i.e., non-state) action. Apart from torture and enforced disappearance a strong argument can be made that any rule permitting the exercise of universal jurisdiction with respect to war crimes committed in international armed conflicts will clearly contemplate the prosecution of state officials and is, thus, practically co-extensive with immunity ratione materiae. Although war crimes in international armed conflicts (i.e., grave breaches of the Geneva Conventions130 as well as ‘other serious violations of the laws and customs applicable in an international armed conflict’ as defined in the ICC Statute131) are not, as is the case with torture, explicitly restricted to acts of state officials or agents’ acts, the position is very similar. Since the opposing parties to an international armed conflict are, by definition, states, and since the acts amounting to war crimes in such a conflict must have some connection with the international armed conflict, these acts 127 International Convention for the Protection of All Persons from Enforced Disappearance (2006), GA Res 61/177, 20 Dec. 2006, A/RES/61/177. See Anderson, ‘How Effective Is the International Convention for the Protection of All Persons from Enforced Disappearances Likely to Be in Holding Individuals Criminally Responsible for Acts of Enforced Disappearance’, 7 Melbourne J Int’l L (2006) 245, at 275–277. 128 See Dupuy, ‘International Criminal Responsibility of the Individual and International Responsibility of the State’, in Cassese et al. (eds), supra note 15, ii, at 1085–1099; Commentary of the International Law Commission to Article 5 of the Draft Code of Crimes, supra note 104. 129 Schabas, ‘State Policy as an Element of International Crimes’, 98 Journal of Criminal Law and Criminology (2008) 953. With respect to genocide see the Report of the Ad Hoc Committee on Genocide (and Draft Convention Drawn Up by the Committee), UN Doc E/794 (1948), at 29 and 32 (recognition by state representatives that ‘in almost every serious case of genocide it would be impossible to rely on the Courts of the States where genocide had been committed to exercise effective repression because the government itself would have been guilty, unless it had been, in fact, powerless’ and that ‘genocide would be committed mostly by the State authorities themselves or that these authorities would have aided and abetted the crime’). 130 See Arts 49, 50, 129, and 146, Geneva Conventions 1949, supra note 94; Art. 85(1), First Additional Protocol to the Geneva Conventions 1949, supra note 89. 131 Art. 8(2)(b), ICC Statute, supra note 111. Note that under Art. 85(1) First Additional Protocol to the Geneva Conventions 1949, supra note 89, many of the crimes listed in Art. 8(2)(b) ICC Statute constitute grave breaches of that Protocol. Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 844 EJIL 21 (2011), 815–852 will usually have been committed by soldiers in a state’s armed forces or other officials or agents exercising state authority. Therefore when the Geneva Conventions132 and customary international law133 conferred universal jurisdiction in respect of those crimes, it cannot be supposed that immunity ratione materiae was left intact as that would have rendered the conferment of such jurisdiction practically meaningless. As regards war crimes committed in non-international armed conflicts,134 clearly one party to the conflict will be a non-state entity, and it is therefore the case that liability for these crimes is not restricted to state officials. However, it may be argued that if international law permits universal jurisdiction135 with respect to such acts it cannot be supposed that it permits the exercise of jurisdiction over persons of one party only whilst leaving persons of the state party free from such jurisdiction. Furthermore, although the more modern definition of crimes against humanity does not require connection with an armed conflict or state action,136 the definition which was used at Nuremberg effectively required that those crimes be linked to an international armed conflict and thus implicitly to state action.137 Also, it has been 132 This is provided for in the provisions listed supra in note 130. See O’Keefe, ‘The Grave Breaches Regime and Universal Jurisdiction’, 7 JICJ (2009) 811. 133 Rule 157 ICRC Study of Customary International Humanitarian Law provides that ‘[s]tates have the right to vest universal jurisdiction in their national courts over war crimes’. The Study points to a large amount of state practice, including both legislation to this effect and national prosecutions on the basis of extra-territorial jurisdiction, to confirm this finding. See Henckaerts and Doswald-Beck, supra note 89, at 604–607. Furthermore, the ICJ has held in two cases (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep 66, at para. 79 and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep 136, at para. 157) that the fundamental principles of the Geneva Conventions are part of customary international law. Arguably, this includes the grave breaches regime. 134 These crimes are set out in Common Art. 3 to the Geneva Conventions I–IV, supra note 94, and in Art. 8(2)(c) and (e) ICC Statute, supra note 111. 135 There have been some prosecutions of war crimes committed in non-international armed conflicts on the basis of universal jurisdiction. See Butare case (unpublished) (Belgium: Court of Assizes) (for a case report see Reydams, ‘Belgium’s first application of Universal Jurisdiction: The Butare Four case’, 1 J Int’l Criminal Justice (2003) 428); Munyeshyaka case, 4 RGDIP (1996) 1084 (France: CA); Knesević, 11 Nov. 1997, 1 Yrbk Int’l Humanitarian L (1998) 599 (Netherlands: Sup. Ct); Grabež, 18 Apr. 1997 (unpublished) (Switzerland: Military Tribunal at Lausanne); Niyonteze, 26 May 2000 (unpublished) (Switzerland: Military Tribunal at Lausanne) (for a case report see Reydams, ‘Case Report: Niyontese v Public Prosecutor’, 96 AJIL (2002) 232). Rule 157 ICRC Customary Study, supra note 133, is considered to be applicable to war crimes committed in non-international armed conflicts as well as those committed in international armed conflicts. 136 Art. 7(2)(a), ICC Statute, supra note 110, requires that the attack on the civilian population, which is the contextual element for crimes against humanity, must have occurred ‘pursuant to or in furtherance of a State or organizational policy to commit such attack’. This element contemplates cases which involve state action and those which do not. There are questions whether this policy element is contained in customary international law. See Cryer et al., supra note 90, at 237–241. 137 Art. 6(c) Nuremberg Charter defines crimes against humanity as ‘murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the law of the country where perpetrated’. However, the nexus between crimes against humanity and armed conflict was gradually dropped and customary law recognizes crimes against humanity in times of both peace and conflict; see Tadić (Interlocutory Appeal), 2 Oct. 1995, ICTY Appeals Chamber, at para. 141 and Art. 7 ICC Statute. Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 Immunities of State Officials, International Crimes, and Foreign Domestic Courts 845 noted that ‘national jurisprudence on crimes against humanity following the Second World War frequently indicated that governmental policy is a requirement’.138 In particular, in many cases that came before the German Supreme Court in the British Occupied Zone officials were prosecuted for crimes against humanity when their actions were in accordance with and supported by state policy.139 Indeed, even prior to Nuremburg, the initial use of the term ‘crimes against humanity’ was in connection with the possible prosecution by states of officials of a foreign state for such crimes. The term was first used in 1915, in relation to the mass killings of Armenians by Turkish forces; the British, French, and Russian governments issued a declaration calling these acts ‘crimes . . . against humanity and civilisation’ and stating that ‘they [would] hold personally responsible [for] these crimes all members of the Ottoman Government and those of their agents who are implicated in such massacres’.140 Similarly, the first extraterritorial prosecution for crimes against humanity141 – the Israeli prosecution of Adolf Eichmann – was for crimes against humanity committed during World War II by a government official. Significantly the exercise of universal jurisdiction by Israel was not challenged by any state. Other domestic prosecutions of foreign government officials for crimes against humanity have also occurred where no challenges based on immunity ratione materiae have been made.142 Thus, it seems clear that at the time when international law began to confer extra-territorial jurisdiction over this crime, the jurisdictional rule contemplated (or was even restricted to) prosecution of those acting on behalf of states. In this way immunity ratione materiae possessed by those persons would have necessarily been displaced. In relation to genocide, Article IV of the Genocide Convention provides that ‘[p]ersons committing genocide . . . shall be punished whether they are constitutionally responsible rulers, public officials or private individuals’. There is an intention that all individuals, including state officials, responsible for genocide shall be prosecuted. It is possible that the Convention could be interpreted in a restrictive manner so that the prosecution of an official is limited to the national courts of the state from which the official comes.143 However, Article VI provides that ‘persons charged with 138 See Cryer et al., supra note 90, at 238. 139 Cassese, supra note 15, at 116. 140 Dispatch of the US Ambassador in France, Sharp, to the US Secretary of State, Bryan, of 28 May 1915, cited in ibid., at 101. 141 The grounds on which the Israeli Supreme Court upheld Eichmann’s conviction suggests that the basis for the prosecution was universal jurisdiction: ‘the peculiarly universal character of these crimes [against humanity] vests in every State the authority to try and punish anyone who participated in their commission’: Eichmann, supra note 52, at 287. 142 See Fédération Nationale des Déportées et Internés Résistants et Patriotes and Others v. Barbie, 78 ILR 124 (France: Court of Cassation (Criminal Chamber)); In re Ahlbrecht, 11 Apr. 1949, [1949] Annual Digest and Reports of Public International Law Cases 397 (Netherlands: Special Court of Cassation); In re Buhler, 10 July 1948 [1948] Annual Digest and Reports of Public International Law Cases 680 (Poland: Supreme National Tribunal). 143 In the drafting of the Convention, universal jurisdiction for genocide was considered and rejected: see the Report of the Ad Hoc Committee on Genocide, supra note 129, at 32. Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 846 EJIL 21 (2011), 815–852 genocide . . . shall be tried by a competent tribunal of the State in the territory of which the act was committed’, and the ICJ has made clear that obligations under the Convention apply also to genocide committed extra-territorially.144 Therefore, it would appear that the Convention, through Articles IV and VI, has displaced immunity ratione materiae in a situation where prosecutions take place in the state where the genocide occurs. Importantly, there is also evidence that the national rules which form the basis of the international law permitting universal jurisdiction for genocide have been drafted with the intention of extending them to prosecutions of foreign state officials. For example, in the debates in the US Senate leading up to the passage of the US Genocide Accountability Act of 2007,145 Senator Richard Durbin, the main sponsor of the Act, specifically stated that the Act was intended to allow the US to prosecute foreign government officials. He specifically referred to the head of security in the Sudanese Government, who is alleged to be involved in the crimes committed in Darfur and who had visited the United States in 2005, and to Pol Pot.146 Since the possible rules providing for extraterritorial jurisdiction over war crimes in a non-international armed conflict, crimes against humanity, and genocide are not practically co-extensive with immunity ratione materiae, it must be admitted that the arguments relating to these crimes are not as strong as those relating to torture, enforced disappearance, or war crimes in an international armed conflict. However, these arguments are consistent with the policy goals underlying universal jurisdiction. Arguably, the primary reason for permitting universal jurisdiction is that persons who commit such international crimes are often connected to the state concerned and might escape justice if only their home state had jurisdiction. To the extent that rules relating to universal jurisdiction are intended to avoid impunity often caused by the failure of states to take action against persons acting on their behalf, those rules contemplate prosecution of those officials by other states. The position was well summarized by Lord Phillips in Pinochet (No. 3): International crimes and extra-territorial jurisdiction in relation to them are both new arrivals in the field of public international law. I do not believe that State immunity ratione materiae can co-exist with them. The exercise of extra-territorial jurisdiction overrides the principle that one State will not intervene in the internal affairs of another. It does so because, where international crime is concerned, that principle cannot prevail. . .. Once extra-territorial jurisdiction is established, it makes no sense to exclude from it acts done in an official capacity.147 E Does International Law Permit the Exercise of Extra-Territorial Jurisdiction over International Crimes? It follows that an important challenge is one of establishing the circumstances in which universal, or at least extra-territorial, jurisdiction is permitted under 144 ‘The Court notes that the obligation each State . . . has to prevent and to punish the crime of genocide is not territorially limited by the Convention’: Application of Genocide Convention, Preliminary Objections (Bosnia and Herzegovina v. Yugoslavia) [1996] ICJ Rep 594, at para. 31. 145 Genocide Accountability Act 2007, Public Law 110-151, signed 21 Dec. 2007. 146 See http://durbin.senate.gov/showRelease.cfm?releaseId=270718. 147 Pinochet (No. 3), supra note 16, at 190. Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 Immunities of State Officials, International Crimes, and Foreign Domestic Courts 847 international law in relation to national prosecutions for international crimes. Whilst this task is an endeavour beyond the scope of this article, some tentative, general remarks may be made.148 The first point to be noted is that this task is complicated by two opposite trends which are concurrently taking place in the international community. On the one hand, the principle of universal jurisdiction is being increasingly asserted in national legislation (much of it prompted by the ICC Statute)149 and judicial decisions.150 On the other hand, this increasing assertion of universal jurisdiction has resulted in increased challenges to the principle. The principle has been challenged in 148 For consideration of this question, see O’Keefe, supra note 124; Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives (2003); ILA Final Report on the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offences, Report of the 69th Conference of the International Law Association (2000). See Fletcher, ‘Against Universal Jurisdiction’, 1 J Int’l Criminal Justice (2003) 580; Cassese, ‘Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal Jurisdiction’, 1 J Int’l Criminal Justice (2003) 589; Bassiouni, ‘Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice’, 42 Virginia J Int’l L (2001) 81; Wedgwood, ‘National Courts and the Prosecution of War Crimes’, in G. Kirk-McDonald and O. Swaak-Goldman (eds), Substantive and Procedural Aspects of International Criminal Law (2000), i, ch. 10; Randall, ‘Universal Jurisdiction Under International Law’, 66 Texas L Rev (1988) 785; Restatement (Third) of the Foreign Relations Law of the United States (1986), at para. 404. 149 See, e.g., (i) s. 8(b), Canadian Crimes Against Humanity and War Crimes Act 2000, providing for jurisdiction over any person who ‘after the time the offence is alleged to have been committed . . . is present in Canada’; (ii) s. 8(1)(c), New Zealand International Crimes and International Criminal Court Act 2000, providing for jurisdiction over genocide, crimes against humanity and war crimes irrespective of (a) the nationality of the accused, (b) the place of commission of the crime and (c) the presence of the accused in New Zealand at the time a decision was made to charge him with the offence; (iii) s. 268.117, Australian Criminal Code Act 1995 (Act No. 12 of 1995) (together with s. 15(4)), providing for jurisdiction over genocide, crimes against humanity and war crimes ‘whether or not the conduct constituting the alleged offence occurs in Australia’; (iv) Art. 1 German Code of Crimes Against International Law 2002, 42 ILM (2003) 995, providing for jurisdiction over international crimes ‘even when the offence was committed abroad and bears no relation to Germany’; (v) s. 4(3)(c), South African Implementation of the Rome Statute of the International Criminal Court Act 2002 (27/2002), providing for jurisdiction over non-nationals present in South Africa who are accused of committing international crimes whilst abroad; (vi) s. 2(1)(a), Netherlands International Crimes Act 2003, providing for jurisdiction over ‘anyone who commits any of the crimes defined in this Act outside the Netherlands, if the suspect is present in the Netherlands’; (vii) s. 12(2), Irish International Criminal Court Act 2006, providing for jurisdiction over non-nationals who whilst abroad commit war crimes in the course of an international armed conflicts; (viii) Art. 23(4), Spanish Judicial Power Organization Act, 6/1985, providing for jurisdiction over certain international crimes committed by Spanish or foreign nationals outside Spanish territory; (ix) US Genocide Accountability Act 2007, supra note 145, amending s. 1091 of title 18 of the US Code and providing for jurisdiction when ‘the alleged offender is brought into, or found in, the United States, even if the conduct occurred outside the United States’. See, further, the national surveys in Reydams, supra note 148; ILA Report on Universal Jurisdiction, supra note 148; and Amnesty International, ‘Universal Jurisdiction: The Duty of States to Enact and Enforce Legislation’. Note that the most notorious piece of legislation asserting universal jurisdiction – Art. 7, Belgian Act Concerning the Punishment of Grave Breaches of International Humanitarian Law 1999 – has been amended to restrict Belgian prosecutors to international crimes committed by or against Belgian nationals or residents. See 42 ILM (2003) 740. 150 See Reydams, supra note 148. Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 848 EJIL 21 (2011), 815–852 several recent cases before the ICJ,151 as well as in diplomatic exchanges and national proceedings.152 For instance, the US Executive branch expressed serious concern over the exercise by Belgian courts of universal jurisdiction over US officials under Belgium’s notorious universal jurisdiction statute.153 This challenge resulted in the amendment of the Belgian statute and the restriction of Belgian jurisdiction to international crimes committed by or against Belgian nationals or residents.154 However, these challenges to the exercise of universal jurisdiction have not, in the main, been challenges to the very principle of universality, but rather challenges to particular applications of the principle. The challenges have been made in cases in which the alleged offender is not present in the territory of the forum and the state in question is seeking to exercise universal jurisdiction in absentia. 155 In addition, the 151 See Arrest Warrant case, supra note 9. Certain Criminal Proceedings in France (Republic of Congo v. France) (Provisional Measures Request) [2003] ICJ Rep 102; Liberia’s application instituting proceedings against Sierra Leone in respect of the indictment by the Special Court for Sierra Leone of the Liberian Head of State. See ‘Liberia applies to the International Court of Justice in a dispute with Sierra Leone concerning an international arrest warrant issued by the Special Court for Sierra Leone against the Liberian President’, ICJ Press Release 2003/26 (5 Aug. 2003), available at: www.icj-cij.org/icjwww/ipresscom/ ipress2003/ipresscom2003-26_xx_20030805.htm; Rwanda’s application against France of 18 Apr. 2007, ‘The Republic of Rwanda Applies to the International Court of Justice in a Dispute with France’, ICJ Press Release, 18 Apr. 2007, available at: http://www.icj-cij.org/presscom/index.php?pr=1909(p1= 6p2=1;p1=6&p2=1. 152 See, e.g., the Guatemalan Genocide case, 42 ILM (2003) 683 (Spain Sup. Ct), holding, by an 8–7 majority, that the exercise of universal jurisdiction is limited by the ‘principle of subsidiarity’. According to this principle, universal jurisdiction will be exercised only where the territorial state has failed to exercise jurisdiction and where there is a link with the forum’s national interest. Such a link would include the nationality of the victim or the presence of the accused in Spain. See, further, Ascencio, ‘Are Spanish Courts Backing Down on Universality? The Supreme Tribunal’s Decision in Guatemalan Ganerals’, 1 J Int’l Criminal Justice (2003) 690; Peruvian Genocide Case, 42 ILM (2003) 1200 (Spain: Sup. Ct). However, in Sept. 2005, Spain’s Constitutional Tribunal found that there was no need for a nexus between Spain and the alleged incident for a complaint to be initiated, and that there was no need to show that prosecution would not take place in the state where the incident took place. See Guatemalan Genocide Case, Judgment No. 237/2005, available at: www.tribunalconstitucional.es/stc2005/STC2005-237.htm. See RohtAzzaria, ‘Guatemala Genocide Case’, 100 AJIL (2006) 207. 153 See Murphy, ‘U.S. Reaction to Belgian Universal Jurisdiction Law’, in ‘Contemporary Practice of the United States Relating to International Law’, supra note 17, at 984–987. In addition to the concerns expressed by the US Executive, Rep. Gary Ackerman in May 2003 introduced into the US Congress a bill entitled the ‘Universal Jurisdiction Rejection Act’, 2003 HR 2050. S. 3 of this bill states that ‘[i]t is the policy of the United States to reject any claim of universal jurisdiction made by foreign governments and to refuse to render any assistance or support to any foreign government pursuing an investigation or prosecution under a universal jurisdiction act’. See http://thomas.loc.gov/cgi-bin/query/D?c108:1:./ temp/~c108p6Eiei::. 154 See ‘Belgium’s Amendment to the Law of June 15, 1993 (as Amended by the Law of February 10, 1999 and April 23, 2003) Concerning the Punishment of Grave Breaches of Humanitarian Law’, 42 ILM (2003) 740. For analysis see Reydams, ‘Belgium Reneges on Universality: The 5 August 2003 Act on Grave Breaches of International Humanitarian Law’, 1 J Int’l Criminal Justice (2003) 679; Black, ‘Belgium Gives in to US on War Crimes Law’, The Guardian, 24 June 2003, at 13. 155 See Reydams, supra note 148, at 223–226. O’Keefe, supra note 124, argues that as a matter of logic there cannot be a category of universal jurisdiction in absentia. This is a persuasive critique of much of the debate which has surrounded this topic since the Arrest Warrant case. However, there is nothing to prevent state practice from developing a principle that universal jurisdiction cannot be enforced unless the alleged offender is present within the territory of the state seeking enforcement. Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 Immunities of State Officials, International Crimes, and Foreign Domestic Courts 849 exercise of universal jurisdiction has been challenged in cases where the alleged offender possesses immunity ratione personae. The fact that a very significant number of states have legislation permitting the exercise in principle of universal jurisdiction with respect to the crimes in the ICC Statute suggests that the principle does exist in customary international law. As regards war crimes committed in international armed conflict, the principle is to be found in the provisions of the Geneva Conventions (and First Additional Protocol) dealing with repression of grave breaches of those conventions. However, the application of this principle is not unlimited. Rather international law recognizes only universal jurisdiction exercised where the alleged offender does not possess immunity ratione personae. 156 It is also arguable that the suspect must be present on the territory of the prosecuting state for a legitimate exercise of universal jurisdiction.157 Yet, as demonstrated above, the principle of universal jurisdiction over certain international crimes is inconsistent with immunity ratione materiae; it follows that that type of immunity does not exist in relation to those crimes. Therefore serving state officials not entitled to immunity ratione personae and former state officials who are present on the territory of the forum state may be arrested and prosecuted for such crimes. F Diplomatic Immunity Ratione Materiae A final point which needs to be considered in relation to immunity ratione materiae is whether the position of the former diplomat is the same as that of other state officials. The position of the former diplomat deserves separate consideration because, unlike the case with other state officials, the immunity ratione materiae is set out in a treaty provision: Article 39(2) of the Vienna Convention on Diplomatic Relations 1961. This provision states that a former diplomatic agent will continue to be immune even after he leaves office ‘with respect to acts performed . . . in the exercise of his functions as a member of the [diplomatic] mission’. Whilst some have argued that the immunity ratione materiae of the diplomat is simply a reflection of the general immunity ratione materiae available to other state officials,158 this view has been rejected by other authors159 and by the German Constitutional Court.160 This question is important for at least two reasons. First, the question arises whether any exceptions to immunity ratione materiae for state officials (particularly the exception for international crimes) also apply to former diplomats. Secondly, the question arises whether the immunity ratione materiae of former diplomats applies erga omnes, i.e., in relation to states other than the state to which the diplomat was accredited. 156 See Arrest Warrant case, supra note 9, at para. 59. 157 See Cassese, supra note 148, and Abi-Saab, ‘The Proper Role of Universal Jurisdiction’, 1 J Int’l Criminal Justice (2003) 596. O’Keefe, supra note 124, argues that, at the conceptual level, there is no distinction between the exercise of universal jurisdiction in absentia and universal jurisdiction with presence. 158 See, e.g., Van Panhuys, supra note 48, at 1206. 159 See Dinstein, supra note 47, at 86–89. 160 Former Syrian Ambassador to the German Democratic Republic case, Case No. 2 BvR 1516/96 (1997), 115 ILR 595, at 609–610, 613–614 (Germany: Federal Constitutional Ct). Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 850 EJIL 21 (2011), 815–852 It has been argued that acts which amount to international crimes cannot amount to acts performed in the exercise of diplomatic functions because the definition of diplomatic functions in Article 3 of the VCDR limits them to acts within the limits of international law.161 This provision states that the functions of a diplomatic mission are, inter alia: (a) Representing the sending state in the receiving state; (b) Protecting in the receiving state the interests of the sending state and of its nationals, within the limits permitted by international law; (c) Negotiating with the government of the receiving state; (d) Ascertaining by all lawful means conditions and developments in the receiving state, and reporting thereon to the government of the sending state; (e) Promoting friendly relations between the sending state and the receiving state, and developing their economic, cultural, and scientific relations. On a textual analysis of this provision, international law is only a restriction to two of the five functions listed. Other functions, such as representing the sending state in the receiving state and negotiating with the government of the receiving state, are not so limited. 162 So, if in the course of negotiating on behalf of his state with the receiving state, the Ambassador were to conspire to commit genocide, the text of Article 3 does not indicate that this is not an act performed in the exercise of his diplomatic function. Beyond this textual analysis, the reasons for rejecting the argument that acts contrary to international law are not official acts of other state officials discussed above apply with equal force to diplomats. Thus the German Constitutional Court confirmed in the Former Syrian Ambassador case, ‘diplomatic immunity from criminal prosecution basically knows no exception for particularly serious violations of law’.163 As the immunity ratione materiae of former diplomats is treaty-based and there is no evidence to suggest that the VCDR has fallen into disuse, it is difficult to argue that this immunity is superseded by the emerging customary international law rule 161 Wirth, ‘Immunities, Related Problems, and Article 98 of the Rome Statute’, 12 Criminal Law Forum (2001) 429, at 449. 162 In a recent Italian case, it was held that three CIA agents who were accredited to the US Embassy in Rome benefited from diplomatic immunity in proceedings against them for the ‘extraordinary rendition’ of Abu Omar from Italian territory. Although the court did not address whether the abduction was an ‘international crime’, Judge Magi did affirm that ‘the activity of “extraordinary renditions” committed by CIA agents, albeit being a crime in Italy, may and should be understood within the functional ambit of Article 3 of the Vienna Convention [on Diplomatic Relations] (“Protecting in the receiving State the interests of the sending State”)’: Adler Monica Courtney and others, n. 12428/09, verdict of 4 Nov. 2009, judgment delivered by Dr Oscar Magi, registered on 1 Feb. 2010 (Italy Fourth Criminal Section of Milan Tribunal), II-93. See Akande, ‘The Conviction by an Italian Court of CIA Agents for Abduction – Some Issues Concerning Immunity’, Nov. 2009, available at: www.ejiltalk.org/the-conviction-by-an-italiancourt-of-cia-agents-for-abduction-some-issues-concerning-immunity/. Messineo, ‘The Untidy Dystopias of anti-terrorism: Italian State Secrets, CIA Covert Operations, and the Criminal Law in the Abu Omar Judgment’, Aug. 2010, available at: www.ejiltalk.org/the-untidy-dystopias-of-anti-terrorism-italianstate-secrets-cia-covert-operations-and-the-criminal-law-in-the-abu-omar-judgment. 163 Supra note 160, at 607. Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 Immunities of State Officials, International Crimes, and Foreign Domestic Courts 851 according universal jurisdiction. It would therefore appear that the state to which a former diplomat was accredited is bound to respect his or her immunity ratione materiae, even if the diplomat is charged with having committed an international crime. However, the treaty rule according diplomatic immunity ratione materiae does not apply with respect to third states.164 With respect to those states the position of the former diplomat is the same as that of other officials: he or she is entitled to the general immunity ratione materiae of state officials which derives from state immunity.165 Therefore, when in a third state, a former diplomat is not entitled to immunity ratione materiae with respect to prosecutions for international crimes. 4 Conclusion In this article, we have examined the status-based and conduct-based immunity which international law confers on state officials. We have argued that in addition to the long-standing customary international law rules conferring immunity ratione personae on Heads of State, Heads of Government, and diplomats, international law confers a broader immunity ratione personae on state officials abroad on special mission. This broader immunity allows for the smooth conduct of international relations, but does not necessarily result in impunity, as it does not prevent prosecutions when the person in question is not exercising his/her international functions. We have argued that there are good reasons for coming to the conclusion that immunity ratione materiae does not apply in criminal prosecutions for international crimes. In so doing we rely on arguments derived from the way international law confers extra-territorial jurisdiction and reject arguments derived from jus cogens or the allegedly non-sovereign and non-official character of acts amounting to international crimes. The rejection of these arguments is important for a number of reasons and may have important consequences. First, those arguments are unpersuasive and rely on faulty logic. Secondly, they misunderstand the basis for immunity. Thirdly, and more importantly, basing the non-availability of immunity ratione materiae on jurisdictional grounds may have important consequences not merely for prosecution of state officials but for immunity of the state and for civil cases against individual officials. One of the difficulties relating to the question of immunity from jurisdiction in cases concerning human rights violations and international crimes is that these questions can arise in different types of proceedings raising different types of immunity. There are civil cases brought against the state, civil cases brought against officials, and criminal proceedings against officials. Should international law provide immunity in all cases, 164 Ibid., at 610–613. 165 The finding in ibid., at 613–614 that former diplomats do not possess even the immunity accorded to other former state officials is unconvincing. It is difficult to see why the immunity of the state ratione materiae will not apply where the official acting on behalf of the state was a former diplomat. See Fassbender, ‘Case Comment’, 92 AJIL (1998) 74. Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023 852 EJIL 21 (2011), 815–852 deny it in all cases, or can there be justifiable differences between the answers provided in different cases? This article has dealt in particular with criminal prosecutions against officials. The conclusion reached with regard to a lack of immunity ratione materiae leads to a different result from that which is reached in most judicial decisions regarding the immunity of the state in proceedings dealing with human rights violations.166 The question has also been raised as to what the position should be in civil cases brought against individuals.167 Should civil cases against individuals be deemed to be analogous to civil proceedings against the state on the theory that such actions are an indirect way of suing the state?168 Or alternatively should the position of individual officials in civil cases be deemed analogous to the position of individual officials in criminal cases? As Justice Breyer of the United States Supreme Court has suggested: consensus as to universal criminal jurisdiction itself suggests that universal tort jurisdiction would be no more threatening. . . . That is because the criminal courts of many nations combine civil and criminal proceedings, allowing those injured by criminal conduct to be represented, and to recover damages, in the criminal proceeding itself. . . . Thus, universal criminal jurisdiction necessarily contemplates a significant degree of civil tort recovery as well.169 The approach we take to the removal of immunity ratione materiae in criminal cases, when combined with Justice Breyer’s views and the assertion that the exercise of criminal jurisdiction over an individual is more coercive than the exercise of civil jurisdiction, may well suggest that in cases where international law confers extraterritorial jurisdiction over international crimes there is no immunity in either criminal or civil proceedings. The result reached on this view would be different from that reached by those who argue for lack of immunity in human rights cases on the ground of a normative hierarchy or alleged lack of official status for human rights violations. This is because our view would lead to the conclusion of a lack of immunity in civil cases only (if at all) in cases where international law rules and practice confer extra-territorial jurisdiction over acts of state officials which are co-extensive with the immunity or cases where the rule conferring jurisdiction contemplates jurisdiction over official conduct. Since the category of norms falling into this category is smaller than the universe of human rights norms, our view would suggest that, when considering the question of immunity from proceedings alleging human rights violations, careful attention needs to be paid to the human rights violation in question and whether it amounts to an international crime over which international law grants extra-territorial jurisdiction. 166 See the cases cited supra in notes 68–71. 167 For recent discussion of the issue in the US see Samantar v. Yousuf, 130 S Ct 2278 (US Sup. Ct, 2010); Bradley and Goldsmith, ‘Foreign Sovereign Immunity, Individual Officials and Human Rights Litigation’, 13 Green Bag 2D (2009) 9; Keitner, ‘Officially Immune? A Response to Bradley and Goldsmith’, 36 Yale J Int’l L Online (2010); Keitner, ‘The Common Law of Foreign Official Immunity’, 13 Green Bag 2D (forthcoming 2010); Stephens, ‘The Modern Common Law of Foreign Official Immunity’, 79 Fordham LRev (forthcoming 2011). 168 See Jones v. Saudi Arabia, supra note 52. 169 Sosa v. Alvarez Machain, 542 US 692 (2004) (US Sup. Ct). Downloaded from https://academic.oup.com/ejil/article/21/4/815/418198 by guest on 08 May 2023
ADDENDUM : UN DISCUSSIONS @ INTERNATIONAL CODIFICATION OF CRIMES LAWS : ADDENDUM
Speakers Argue over Codifying International Law Commission Draft Articles on Crimes against Humanity, as Sixth Committee Resumes Session
As the Sixth Committee (Legal) resumed its session on agenda item, “Crimes against humanity”, delegates debated whether a new convention on such crimes would close gaps in the current international legal framework and if that instrument, based on the draft articles by the International Law Commission, should be inspired by existing texts, including the Rome Statute of the International Criminal Court and international conventions addressing genocide and torture.
Opening the session, Pedro Comissário Afonso (Mozambique), Chair of the Sixth Committee, noted that the Committee would carry its mandate in two rounds over two years, based on five thematic clusters of provisions. He introduced the new “interactive format” of deliberations, which would allow delegations, after hearing interventions, to ask for further clarifications and express their views in relation to that statement
He also called for a minute of silence in memory of Benjamin Berell Ferencz, one of the prosecutors at the Nuremberg Trials and a proponent for establishing the International Criminal Court, adding that the fight for justice and against impunity became Mr. Ferencz’s life’s calling. “As we embark this week on the next phase of the work of the United Nations on crimes against humanity, let us resolve to honour the memory of Ben Ferencz and his life-long commitment to the pursuit of international justice,” he stressed.
As the meeting unfolded, many delegations also paid tribute to Mr. Ferencz, while tackling the complex issue of not only defining crimes against humanity, but also debating over the best approach to ensuring the prevention and prosecution of such crimes.
The representative of the European Union, in its capacity as observer, urged the Committee to draw inspiration from Mr. Ferencz’s “plea of humanity to law” credo: “Never give up. Never give up. Never give up.” Acknowledging an important normative gap in international treaty law regarding crimes against humanity, she said the International Law Commission draft articles — that take inspiration from and replicate provisions on prevention, punishment and inter-State cooperation existing in other treaties — constitute an important and solid basis for an international convention.
The representative of Sierra Leone, noting that a future convention “would be a gap-filling one”, said that such an instrument should primarily codify existing customary international law and include aspects of progressive development. Outlining the Rome Statute as the starting point for a future treaty, he said the proposals towards that end must fully respect the Statute’s integrity, which he recalled was a “necessary negotiated compromise amongst States”.
Colombia’s representative, recalling that her country had suffered from the “horrors of armed conflict”, stressed that the International Law Commission’s draft articles are not incompatible with the Rome Statute; rather, they are a complement with a different scope of application. Should the draft articles become a convention, they will contribute to accountability and the fight against impunity, she added.
The delegate of Brazil said that a new convention would not overlap with the Rome Statute, but, instead, bring an indispensable complement to the work of the International Criminal Court. Suggesting that the language of the preamble be incorporated in the spirit of the preambular paragraphs of the Rome Statute, he also welcomed that the draft articles take into consideration the definition of crimes against humanity set forth in it.
However, the representative of Cameroon, while acknowledging that the preamble is strongly inspired by the Rome Statute, pointed out that it could further complicate the modalities of building legal edifice, since the Rome Statute, to date, has only been acceded by fewer than two thirds of United Nations Member States. He also warned that, if the Committee is confined to the “strait jacket” of the Rome Statute, it runs the risk of having interminable work and greater misunderstanding.
Similarly, Cuba’s representative noted how the legal basis used in the Commission’s draft articles for the definition of crimes against humanity is related to the Rome Statute, to which several States, including Cuba, are not a party. Therefore, they cannot be forced to negotiate the exact references to issues regulated by the Statute, he said.
As well, India’s delegate, pointing out that several countries in Africa and Asia, including her country, are not parties to the Rome Statute, said that the draft articles, inspired by the Statute and the Convention on the Prevention and Punishment of the Crime of Genocide, are neither new nor universal. She said her delegation was not in favour of simply transposing already-existing regimes into a new convention.
The representative of China said the draft articles proposed by the International Law Commission are not a zero draft for a future convention. If an international convention is to be concluded in the future, the principles of sovereign equality and non-interference in internal affairs must be included in clear language in the preamble and the articles. That spirit must be the guiding element throughout the convention.
Chile’s delegate, outlining how preambular paragraph 7 offers consistency between the new convention and the Rome Statute, said it does not affect the State parties to the Rome Statute, but, rather, offers a substantive definition in line with general international law. Further, its inclusion would not have an effect of accepting the International Criminal Court’s jurisdiction.
However, the representative of the Gambia, underlining the lack of progress made by the Sixth Committee on the Commission’s finished products, warned Member States against getting “lost in loose technical debate”. He called on them to dare to be different in their pursuit of the progressive development of international law, as well as the protection and promotion of human rights guiding principles, be it nationally or internationally. “Delegates’ fight to end crimes against humanity must unite Member States, not divide them,” he stressed.
Also speaking today were representatives of Denmark (also for Finland, Iceland, Norway and Sweden), Latvia (also for Estonia and Lithuania), Egypt, Philippines, Germany, Spain, Czech Republic, Malta, United Kingdom, Iran, Netherlands, Hungary, Portugal, Slovakia, Italy, Türkiye, Australia, Ireland, El Salvador, Israel, Ecuador, Saudi Arabia, Indonesia, Austria, Romania, Japan, United States, Slovenia, Poland, Mexico, Qatar, Bangladesh, South Africa, Sri Lanka, Russian Federation, Belgium, Syria and Lebanon.
The Sixth Committee will meet next at 10 a.m. on Tuesday, 11 April, to continue its work.
Opening Remarks
PEDRO COMISSÁRIO AFONSO (Mozambique), Chair of the Sixth Committee, opened the Committee’s resumed session for the seventy-seventh session of the General Assembly to continue its consideration of agenda item 78, “Crimes against Humanity”. The Committee will exchange substantive views on all aspects of the draft articles and will consider the recommendation of the International Law Commission for the elaboration of a convention on the basis of the draft articles. Detailing the programme of work, he said the Sixth Committee would carry out its mandate in two rounds, with the first exchange of views on the entire draft articles on prevention and punishment of crimes against humanity held in 2023, and the second — including a full debate on the matter — at a resumed session in 2024. The debate will be structured based on five thematic clusters of provisions and will hear oral reports of the co-facilitators at the final session. Noting that a similar programme is being proposed for the resumed session in 2024, he reported that more time will be allocated for the debate on the Commission’s recommendation.
The Bureau is proposing a technical report with an annex containing a summary of the deliberations at both sessions, which will be considered for adoption and inclusion in the Committee’s written summary as a whole, he continued. Giving an overview of the meeting procedures, he introduced the “interactive format” that would allow delegations, after hearing interventions, to ask for further clarifications and express their views in relation to that statement. They may also request the floor to speak, without restriction on the number of interventions. The delegation whose statement is the subject of the interactive format may respond to any and all interventions, without restriction on the number of such responses. Spotlighting the key role of co-facilitators in guiding deliberations, including their interactive aspect, he said they would also facilitate the intersessional substantive dialogue.
SARAH ZAHIRAH RUHAMA (Malaysia), Rapporteur for the Sixth Committee and a co-facilitator, speaking also for the other co-facilitators — Edgar Daniel Leal Matta (Guatemala) and Anna Pála Sverrisdóttir (Iceland) — said they would aim at capturing the points expressed in formal and informal parts of the session, while preparing oral reports. “We will endeavour to make this an inclusive and welcoming space for all delegations,” she said.
The Committee then approved the proposed programme of work and working arrangements for the resumption of its session at both the seventy-seventh and seventy-eighth sessions of the General Assembly.
Thematic Cluster 1: Preamble and Draft Article 1
SIMONA POPAN, representative of the European Union, in its capacity as observer, emphasized that crimes against humanity are one of the core international crimes. However, unlike genocide and war crimes, they are not covered by a dedicated international convention, although they are not a “lesser evil”, nor do they inflict less harm or pain on civilian populations. There is, therefore, an important normative gap in international treaty law that should be filled. A convention will strengthen prevention and punishment at the national level while also promoting inter-State cooperation in the investigation and punishment of perpetrators of crimes against humanity. The International Law Commission draft articles are an important and solid basis for such an international convention. They take inspiration from and replicate provisions on prevention, punishment and inter-State cooperation existing in other treaties, such as the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the 2003 United Nations Convention against Corruption. Further, the draft articles — the result of five years of intense work by the Commission — do not raise entirely novel issues.
Citing the preamble, she noted that crimes against humanity have devastating consequences for civilian populations that deeply shock the conscience of humanity. Such unspeakable atrocities cannot go unpunished. Prohibition of crimes against humanity is a peremptory norm of international law, as clarified by the Commission in its work on jus cogens. It is the duty of every State to exercise its domestic criminal jurisdiction over those responsible for international crimes, thus reflecting the well-established principle that protection of population lies primarily with each individual State. Draft article 1 clarifies the material scope of the convention as applying to the prevention and punishment of crimes against humanity, while matters not regulated by a convention would continue to be governed by other rules of international law, including customary international law. Codification of existing law was not the objective of the draft articles, she added. Rather, the objective was the drafting of articles that would be both effective and acceptable to States. Paying tribute to Mr. Ferencz, she urged the Committee to draw inspiration from his “plea of humanity to law” credo: “Never give up. Never give up. Never give up.”
SIGRID WALSOEE SOERENSEN (Denmark), speaking also for Finland, Iceland, Norway and Sweden, said the elaboration of a new convention on the prevention and punishment of crimes against humanity is long overdue, adding that the draft articles serve as a solid basis for such a convention. A new convention would fill a gap in the international treaty framework, as well as strengthen the international criminal justice system and the ability of States, at the national level to prevent and punish these horrendous crimes. It would also promote much needed inter-State cooperation and thereby ensure more effective and efficient investigations and punishment of perpetrators.
The preamble provides a balanced and well-written conceptual framework for the draft articles, she continued, adding that it sets out the historic and legal context of the draft articles. It also highlights the connection to the maintenance of peace and security and affirms that crimes against humanity must be prevented in conformity with international law. As well, it notes that prevention is advanced by putting an end to impunity for the perpetrators of such crimes. Crucially, it recalls that the prohibition of crimes against humanity is a peremptory norm of international law. Both the prevention and punishment of crimes against humanity are vital. The two-fold purpose of the draft articles is necessary to shape the instrument most needed to end these atrocities. As highlighted by the preamble, the obligations to prevent and punish go hand in hand, she stressed.
ELVIRA CUPIKA-MAVRINA (Latvia), speaking also for Estonia and Lithuania and aligning herself with the European Union, said that the International Law Commission’s draft articles provide an important, solid basis for an international convention on this matter. Recalling the words of the preamble’s first paragraph, she said that, “as we speak”, people are still falling victim to serious international crimes that deeply shock the conscience of humanity. The Russian Federation’s transfer and deportation of Ukrainian children violates international human-rights and humanitarian law, and the International Criminal Court has issued warrants in connection with these alleged crimes. Further, acts of torture and attacks on energy infrastructure during freezing temperatures committed by the Russian Federation’s armed forces may amount to crimes against humanity.
She went on to underscore that too many generations have suffered — “and so many more will” — if the international community does not adopt a legal framework governing such heinous acts of violence. She therefore welcomed all preambular paragraphs to be adopted as presented today, noting that the underlying reasoning for doing so is clearly written in the last preambular paragraph: “because crimes against humanity must not go unpunished”. She also welcomed draft article 1 in its current form, as it can help ensure that those who commit such crimes do not escape justice. That draft article is applicable to both prevention and punishment of crimes against humanity, focuses solely on such crimes and would provide guidance and clarity in this area, she added.
AHMED ABDELAZIZ AHMED ELGHARIB (Egypt), acknowledging wide gaps between Member States on many aspects of the draft articles, spotlighted a “delicate compromise” crafted by the Sixth Committee to allow for more discussion. Noting that resolution 77/249 created a clear process for the consideration of the articles during the two resumed sessions, he said it was designed to avoid any predetermined or premediated outcome at the seventy-ninth session. Encouraging delegations to engage in deep and meaningful substantive discussions, he said States should avoid pursuing predetermined outcomes and rather strive to identify areas of convergence and attempt to resolve any differences in views. Turning to Cluster 1, he suggested that the reference to the International Criminal Court’s statute in the preamble be eliminated, since the instrument does not enjoy universal membership. Further, the preambular paragraph on the “duty of every State to exercise its criminal jurisdiction with respect to crimes against humanity” should be constrained to cases where a clear nexus is established between the State exercising jurisdiction and the crime.
ARIEL RODELAS PENARANDA (Philippines) spotlighted certain concerns raised by his delegation during previous deliberations, including on State sovereignty, overbroad assertions of jurisdiction and politicization of human rights. In general, the preambular provision tracks closely the language of the Rome Statute on several preambular paragraphs, defining the treaty’s context and objectives. Citing article 31 of the 1969 Vienna Convention on the Law of Treaties, he noted that determination of the meaning of a particular provision is based on an examination of the treaty text as a whole, including the preamble. Should the Committee decide to adopt these preambular provisions, discussions must provide a distinct context and make clear that it is not merely appropriating these preambular provisions. Recalling the Commission’s important work on the identification of jus cogens, he affirmed that, if its criteria are met, the Philippines can support the inclusion of preambular paragraph 4. His delegation is further ready to support stronger language on international cooperation in preambular paragraph 10, including based on what is present in similar conventions, such as the Convention on Genocide. On article 1, on the “scope of application”, he expressed support for the current language with the understanding that draft articles are meant to apply in two parts: prevention and punishment.
MICHAEL HASENAU (Germany), associating himself with the European Union, said his country attaches great importance to the project of a convention on crimes against humanity, based on the International Law Commission’s draft articles. As there is currently no global convention governing the prevention and punishment of crimes against humanity, a new convention would complement treaty law on the most serious crimes and foster inter-State cooperation with regard to their prevention, investigation, prosecution and punishment. He called on Member States to close this gap to strengthen accountability and bring such crimes to justice universally, particularly by promoting prevention and punishment at the national levels as stipulated in the title and article 1 of the draft articles. As concerns and suggestions by various partners have been thoroughly evaluated and discussed, it is time to move forward and to proceed with elaborating a convention on this solid basis. France and Germany organized a workshop on the project of a convention on 13 and 14 March in New York, he said, noting that the report on the workshop was circulated to all missions.
ANA JIMENEZ DE LA HOZ (Spain), aligning herself with the European Union, observed that the Committee’s interactive format allows for real debate and for the largest number of positions to be expressed. The International Law Commission’s draft articles provide a good foundation for such debate, as they contain important elements such as definitions, provisions to introduce crimes against humanity into domestic legislation and measures to facilitate international cooperation in this area. Noting that delegations are “not here to negotiate, but to establish a common framework for understanding”, she said she looked forward to hearing Member States’ positions, concerns and questions. She also welcomed that the draft articles’ definition of crimes against humanity coincides with the one present in the Rome Statute, stressing that international criminal law must avoid fragmentation. The Committee should move forward with two objectives in mind — accountability and prevention, she stressed.
EMIL RUFFER (Czech Republic) observed that many draft provisions were modelled on the existing provisions of other multilateral conventions that were supported by States. He expressed appreciation that the articles were prescriptive in nature and enabled States to implement them in their legal systems and practices. Further, the preamble properly encapsulates the basic principles for the future convention; it characterizes the prohibition of crimes against humanity as a peremptory norm of general international law (jus cogens). Article 1 reiterates the scope of the draft articles indicated by their title and emphasizes their importance along with two primary purposes: prevention and punishment of crimes against humanity. The article also provides general orientation to the whole set of the draft articles, he added, noting that similar provisions are also included in article 1 of the Convention on the Prevention and Punishment of the Crime of Genocide.
Ms. SIMAN (Malta) pointed out that, for many years, the work of the International Law Commission would “hit a glass ceiling in the Committee”. The preamble defines context and objectives and plays an important role when applying the treaty, especially in cases of any disputes when the treaty is being carefully read by judges and intervening parties. Further, the preamble is, overall, reflective of the conceptual framework of the draft articles, drawing its inspiration from the preambles used in international treaties, including the 1948 Genocide Convention, which has 153 State parties, and the Rome Statute, which has 123 States parties. Thus, the preamble builds upon undeniable political and legal concepts commonly agreed upon by the wider United Nations membership, namely: the most serious crimes of international concern must not go unpunished, requiring international cooperation; and that it is the duty of every State to exercise its criminal jurisdiction over those responsible for such international crimes. She expressed support for the wording of article 1 on the scope of the draft articles, as they refer to prevention and punishment of specific international crimes which can be committed during peace and wartime, filling in an important normative gap.
LIU YANG (China) said the draft articles proposed by the International Law Commission are not a zero draft for future convention negotiations nor is the discussion carried out by the Committee’s resumed session a convention negotiation. Whether, when and how to conclude a convention needs to be further discussed and decided upon after the conclusion of the Committee’s two resumed sessions in a consensual-based manner, he added.
ZHAO YANRUI (China) said that, while her delegation understands the intention of the third preambular paragraph regarding crimes against humanity and the principle of international law, the relevant formulation is too vague and not clear or specific enough. The principles of sovereign equality and non-interference in internal affairs must be included in clear language in the preamble and the articles. If an international convention is to be concluded in the future, those two principles and their spirit should become the guiding elements throughout the convention, she said, pointing out that, in recent years, certain countries for political purposes have made arbitrary accusations of crimes against humanity against other countries in attempt to interfere in other States’ internal affairs and exert political pressure. This practice completely deviates from the original purpose of prevention and punishment of crimes against humanity, she stressed.
LUCIA TERESA SOLANO RAMIREZ (Colombia) said that, while her country has suffered from the “horrors of armed conflict”, it can speak with the moral authority that comes from confronting — and learning from — serious challenges. The draft articles correctly focus on effective prosecution of crimes against humanity through the adoption of domestic measures and the promotion of international cooperation. Because there are still gaps in these areas, States would benefit from a legally binding international instrument on this topic. Turning to the draft articles, she welcomed their characterization of crimes against humanity as a jus cogens matter, as such crimes threaten peace, security and well-being throughout the world. She also noted that draft article 1 is inspired by the Convention on the Prevention and Punishment of the Crime of Genocide, and thus, represents a clear continuation of norms already accepted by the international community. Further, the draft articles are not incompatible with the Rome Statute; rather, they are a complement with a different scope of application. Should the draft articles become a convention, they will contribute to accountability and the fight against impunity, she added.
CHANAKA WICKREMASINGHE (United Kingdom), noting that his country sees benefits in developing an extradite-or-prosecute convention in respect of crimes against humanity, said it could strengthen international and domestic laws in relation to such crimes. Turning to the preamble, he suggested changing paragraph 1 so that it refers to “people” as a whole rather than “children, women and men”. He encouraged the views of the other Member States on including language in the preamble around the importance of a survivor-centred approach to punishing crimes against humanity and including a reference to reparation for material and moral damage, further elaborated in article 12(3). On preambular paragraph 7, he said it could be expanded to refer to the fact that that provision was based on the work of the Commission and State practice at the time it was negotiated. Noting that preambular paragraph 8 “foreshadows” draft articles 8 to 10, he suggested reformulating the provision to recall “the primary importance” of States exercising their criminal jurisdiction with respect to crimes against humanity.
MOHAMMAD GHORBANPOUR (Iran) said that, given the importance of international instruments’ preambular sections, such sections should be streamlined, concise and encompassing. Further, it should recall the principles and purposes of the Charter of the United Nations, including the principle of non-intervention in the internal affairs of States. This is the most relevant principle of the Charter to the draft articles, which are also included in the resolution “Consideration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in accordance with the Charter of the United Nations” (document A/RES/18/1966). Moreover, all relevant principles of international law pertaining to the draft articles, including immunity of State officials and immunity of States and their properties, have not adequately been incorporated in the Charter. He therefore suggested deleting the last part of the preamble's third paragraph, which subsequently reads “Recalling the relevant principles of international law…”. There is no legal loophole regarding the criminalization of crimes against humanity in international law due to the existing instruments. In that regard, he proposed either deleting the reference to article 7 of the Rome Statute or replacing the word “considering” with the word “noting” in the preamble’s seventh paragraph.
WIETEKE ELISABETH CHRISTINA THEEUWEN (Netherlands), associating herself with the European Union, said that the collective attempt should be to find areas of convergence. However, it is particularly important to agree on a convention considering that the prohibition of crimes against humanity, like the prohibition of the crime of genocide, is a peremptory norm of international law, from which no derogation is permitted and which is applicable to all States. As such, she welcomed the clauses on the jus cogens character of the prohibition of crimes against humanity in paragraph 4 of the preamble. Turning to paragraph 7 of the preamble, she said that drawing from existing legal instruments can provide a good model for the definition of crimes against humanity. In that regard, she voiced support for the International Law Commission largely retaining the definition of crimes against humanity contained in the Rome Statute. The draft articles and a possible future convention should apply to both the prevention and punishment of crimes against humanity. Her delegation, in preparing for its commentary to the draft articles, always seeks advice from an independent advisory body, the Advisory Committee on Questions of International Law, she pointed out, noting that her delegation will refer to this body in its interventions.
VICTOR SILVEIRA BRAOIOS (Brazil) said that a convention on the prevention and punishment of crimes against humanity could serve as an important addition to the current framework of international law. Such a convention would not overlap with the Rome Statute. Rather, it would bring an indispensable complement to the work of the International Criminal Court by ensuring accountability for these serious crimes at the national level. He also stressed that the views his delegation will express during this resumed session in no way prejudge the approach Brazil will take during future negotiations regarding this international convention. Turning to the preamble, he suggested that language be incorporated — in the spirit of the preambular paragraphs of the Rome Statute — that refers to the principles of the Charter relating to the prohibition against the use of force and to non-intervention in States’ internal affairs. He said that doing so would dispel fears of misuse of allegations of crimes against humanity as a pretext for aggression or such interference, thereby facilitating universal adherence to a future convention on such crimes. He also welcomed that the draft articles take into consideration the definition of crimes against humanity set forth in the Rome Statute.
Mr. MAGYAR (Hungary), associating himself with the European Union, outlined the efforts of the International Law Commission in adopting the draft articles on prevention and punishment of crimes against humanity in 2019, stressing it was time to take further steps towards negotiating and adopting an international legally binding instrument. Paying tribute to Benjamin Ferencz, a leading figure of international criminal law of Hungarian and Jewish descent, he said his legacy “still forms our thoughts on our fight against crimes against humanity”, quoting the late jurist as saying: “Law continues to be humanity’s hope for a more just and peaceful world.”
ARIANNA CARRAL CASTELO (Cuba) underscored that a convention should reflect, as a fundamental principle, that the primary responsibility for preventing and punishing serious international crimes taking place under its jurisdiction should fall on the State in question. One of the fundamental principles of international criminal law is that States have the sovereign prerogative to exercise national jurisdiction in their courts over crimes against humanity committed in their territory or by nationals. The International Law Commission cannot be considered, in and of itself, as a legislative body in charge of establishing such norms of international law. The legal basis used in the draft articles for the definition of crimes against humanity is related to the Rome Statute, to which several States, including Cuba, are not a party. Thus, they cannot be forced to negotiate the exact references to issues regulated by the Rome Statute. Only in this way will it be possible for a future convention to obtain broad international acceptance by the international community. Given the current global state of uncertainty, her delegation would prefer not to rush the start of a new and complex negotiation, she said.
The floor then opened up to the Interactive Forum format.
The representative of Iceland, speaking as co-facilitator, noted that Brazil made an important point in underscoring that its delegation, by expressing any views or making points, is prejudging any eventual positions it may have. In remembering that delegations are not negotiating, people will feel more relaxed and able to participate, she pointed out, noting that the discussions are on substance; anyone will be able to change their positions as the discussions develop.
The representative of Brazil expressed appreciation for the co-facilitator's agreement with how his delegation is approaching this session.
The meeting then resumed to formal interventions.
AMARAL ALVES DE CARVALHO (Portugal), aligning himself with the European Union, said that his delegation approaches this discussion with tangible goals in mind — to further understand Member States’ positions on the draft articles, to clarify and address concerns that may exist and to identify possible avenues to make progress in the Committee’s discussion of this topic. A convention based on the draft articles is necessary and urgent to fill a gap in international law and in the fight against the most-serious crimes of international concern, he stressed. The preamble is inspired, in part, by the language used in the preambles of international treaties relating to such crimes, he said, highlighting the reference to the jus cogens nature of the prohibition against crimes against humanity. On the proposal to list certain principles of the Charter in the draft articles, he said that — to avoid politicization and cherry-picking — it would be better to incorporate a general reference to the principles of international law embodied in the Charter, as envisioned by the International Law Commission. Turning to draft article 1, he noted the dual scope of the draft articles, which apply to both the prevention and the punishment of crimes against humanity.
MATUS KOSUTH (Slovakia), associating himself with the European Union, said he concurred with the Commission’s finding about the stark contrast between the international regulation of crimes against humanity and other crimes under international law, including genocide and war crimes. The lack of a dedicated treaty instrument to regulate prevention and punishment is not a theoretical problem or exercise, he noted, spotlighting its serious repercussions for the practice of international law and the lives of millions of victims. The four preambular paragraphs were consistent with the standard treaty language and other products of the Commission and set an overall context of the draft articles. Preambular provisions not only provide a good balance in capturing the object and purpose of the draft articles, but intertwine them with other key elements, including the international cooperation or the rights of victims, witnesses and other individuals, he added. Noting that the scope of draft article 1 is consistent with other similar treaty instruments — such as the Genocide Convention or the Convention against Torture — he reiterated the importance of the draft articles’ preventive dimension.
ENRICO MILANO (Italy), aligning himself with the European Union, noted that the draft articles address the important normative gap of horizontal judicial cooperation for the prosecution of crimes against humanity. A future convention will reinforce both the primary responsibility of States in prosecuting and punishing those responsible for those crimes and the principle of complementarity in international criminal law. Unlike the 1948 Genocide Convention, 1949 Geneva Convention and the 1984 United Nations Convention against Torture, the draft articles have not been elaborated in a vacuum. Since the 1990s, a number of international courts and tribunals have been created to prosecute and punish international crimes, including the International Criminal Court. He also called for the preambular section to contain a paragraph acknowledging the important contribution of international courts and tribunals in addressing impunity and protecting the rights of victims. Except for that requested addition, his delegation can support the preamble as drafted. On article 1, for reasons of legal precision, his delegation would prefer the addition of the words “by States” after the words “prevention and punishment”, to avoid conflating other existing instruments establishing international mechanisms and institutions dealing with the prosecution and punishment of crimes against humanity.
ZACHARIE SERGE RAOUL NYANID (Cameroon) noted that the preamble is strongly inspired by the Rome Statute and takes up mutatis mutandis paragraphs 1 to 4, as well as a definition for crimes against humanity from article 7 of the International Criminal Court. This is going to further complicate the modalities of building this legal edifice, given that the Rome Statute, to date, has only been acceded to by 123 countries out of 193 Member States, which means fewer than two thirds. As there is no legally binding international instrument specifically on the definition of crimes against humanity, draft article 1 should arrive at a consensus definition, which would be universally acceptable. “The States therefore should not be confined by the straitjacket of the Rome Statute,” he stressed. Elaborating on his delegation’s other views, he pointed out that the Rome Statute itself indicates that the jurisdiction of the International Criminal Court is complementary to that of national criminal jurisdictions. Current draft articles cannot therefore extend the competency of the Court beyond that, he underscored, also noting the absence of any mention of regional conventions on the prevention and punishment of crimes against humanity.
MICHAEL IMRAN KANU (Sierra Leone), noting that a future convention “would be a gap-filling one”, said that such an instrument should primarily codify existing customary international law, and to the extent possible, include aspects of progressive development, such as incorporating provisions relating to extradition and mutual legal assistance into national law. The Rome Statute is the starting point for a future treaty governing crimes against humanity and proposals towards that end must fully respect the integrity of the Rome Statute, which was a “necessary negotiated compromise amongst States”. Turning to the draft articles, he added his support for the preamble’s characterization of the prohibition against crimes against humanity as jus cogens in nature. He also took note that the articles are “without prejudice to existing customary international law”; appropriate consideration must be given to the definition of crimes against humanity as set forth in the Rome Statute. On that point, he underlined the necessary compromise made and the balance struck by States. A future treaty governing crimes against humanity must cover both measures for the prevention and the punishment of such crimes, as expressed in the preamble and in various draft articles and the commentaries thereto, he added.
KEMAL ONUR EKREN (Türkiye) said his country codified crimes against humanity in its national legislation. Under the Turkish penal code, crimes against humanity are on the list of crimes to which the Turkish law shall apply. Pointing out that these crimes are susceptible for political exploitation, he underlined the importance of non-politicization of this agenda item. To secure the broadest acceptance of any proposed convention, the document should reflect widely accepted principles and contain safeguards against their potential abuse with political motives. In the absence of such, any convention could give rise to tensions between States and undermine rather than strengthen the efforts to promote justice, he stressed. Noting that certain provisions of the draft articles expand the scope of universal jurisdiction, including the reference to jus cogens in the preamble, he highlighted the importance of further studying relevant State practices and uphold recognized principles of immunity and sovereign equality. The expansion of the scope of the draft articles into such issues as “civil jurisdiction”, “amnesty” and “immunity” would be unhelpful for the goal of a widely accepted convention, he said.
The floor then reopened to the Interactive Forum format.
The representative of Cameroon, addressing the delegates of Portugal and Sierra Leone, said that the obvious trend is to put the International Criminal Court Statute at the core of the debate. However, as the representative of Türkiye noted, the issue of crimes against humanity is very complex. Those crimes have changed. If the Committee is confined to the “straitjacket” of the Rome Statute, it runs the risk of having interminable work and greater misunderstanding. He called for work on an effective definition of crimes against humanity, asking how the exploitation of land in Africa, acute deforestation and the theft of artwork cannot effect future generation, and therefore, constitute crimes against humanity. The confines of the definition should extend beyond physical death. If all the oil and gold are looted from his continent, the people of Cameroon will have nothing in 50 years and be doomed to die.
The representative of Sierra Leone responded that the Rome Statute is the core of debate because delegates are dealing with customary international law, as under the work of the International Law Commission, and its codification. He cited progressive development in horizontal cooperation, noting that, in trying to achieve a future treaty, there must be effective international implementation. It is important “not to reinvent the wheel” and ensure the principle of complementarity is safeguarded, with primacy given to States to investigate and prosecute crimes against humanity, he said.
The representative of Colombia, adding her agreement with Sierra Leone’s delegate, said there is a duty to refer to the Rome Statute as a precedent, whether States are parties or not; it is the basis for work. This does not preclude adding other considerations to the preamble. She further voiced her agreement with Sierra Leone that discussion on all crimes that should be listed should be broached when that point is reached, as it is not the specific topic of this cluster.
The representative of Portugal said the Committee should address the question of coherence with the Rome Statute. The definition therein [for crimes against humanity] is not a straitjacket, but a very important reference. It reflects, to a large extent, customary international law, he said, underscoring that the Committee should use that reference to decide how that definition serves the international community to date and whether and how it can and should improve it.
The representative of Cameroon, noting that Member States are present for a debate, added: “We are here to reinvent the wheel. If we didn't have to be here for that, then why are we here?” He called on them to take into account the two dimensions of the International Law Commission: the codification and the progressive development of the law.
The meeting then resumed to formal interventions.
ALEXANDRA HUTCHISON (Australia) said that a convention would close a gap in the current international legal framework and provide a new, catalytic basis with which to strengthen international cooperation in this area. Noting that there will be divergences on some of the draft articles, she said that she does not see this as a reason not to progress discussions. Rather, “we see it as a sign that we are ready to engage on the basis of the draft articles”, she said. Turning to the draft articles, she welcomed the preamble’s emphasis on the primary responsibility of States to investigate and prosecute crimes against humanity, which underpins the need for a convention to equip States with the tools needed to fill the current impunity gap. The International Law Commission’s reasoning regarding the jus cogens status of the prohibition of crimes against humanity is persuasive, and therefore, is an important inclusion in the preamble. This reflects that the prohibition against such crimes is accepted and recognized by the international community as a norm from which no derogation is permitted. Further, her delegation is also considering how to better integrate gender equality and First Nations perspectives as cross-cutting issues throughout the draft articles, she said.
EOGHAN MCSWINEY (Ireland), associating himself with the European Union, noted that, despite crimes against humanity among the most serious of all international crimes, to date, that the international community has failed to agree upon and adopt a stand-alone instrument criminalizing the crimes against humanity. The elaboration of such an international convention would send an important message that impunity for those who commit these crimes will not be tolerated. Reiterating his country’s strong support for such a convention, he said the draft articles provide a strong foundation to this end. The draft articles are complemented by the international initiative for the development of a multilateral treaty for mutual legal assistance and extradition in domestic prosecution of atrocity crimes, he added, stressing that both endeavours are very important.
LIGIA LORENA FLORES SOTO (El Salvador) noted that her country’s constitutional jurisprudence has reaffirmed that, by their nature, crimes against humanity have no statute of limitations according to international law. Further, no internal measures may impede investigation, clarification of the truth and full reparations to the victims — further meaning they cannot be the object of amnesty or pardon. She voiced her support for the reference to the Rome Statute as part of the preamble, since that instrument is the cornerstone for determining the scope of different crimes against humanity. She further encouraged delegations to adhere to the current international legal framework, taking into account that the draft differs from the Rome Statute. Citing the cohesive interpretation of regional legal systems, including jurisprudence from her region, Europe and Africa, she called for expanding the progressive discussion into the dimension of reparations for victims, and the meaning of the term “gender”, which should be a fundamental issue in the draft.
NOAM CAPPON (Israel) called for achieving wide acceptance of the rules for the prevention and punishment of crimes against humanity, noting that such wide acceptance should be based on customary international law, as well as established principles. Regarding preambular paragraph 7, he said the application of article 7 of the Rome Statute mutatis mutandis may not be appropriate and might even work against the broad acceptance that the Committee is trying to achieve, adding that his delegation will elaborate on its comments in the next cluster. Draft article 1 and the preamble set the tone and provide a strong basis for discussion of the issues requiring further attention in the remaining four clusters, he noted.
PABLO AGUSTIN ESCOBAR ULLAURI (Ecuador) said that the International Law Commission’s draft articles provide an adequate foundation for the negotiation of a convention on the prevention and punishment of crimes against humanity. He voiced his support for the preamble and draft article 1, which establish the two fundamental duties that States must fulfil regarding such crimes — prevention and punishment. The preamble establishes that the prohibition of crimes against humanity is a peremptory norm of international law, which reflects the international community’s position that this norm is superior in hierarchy to other norms of international law and is universally applicable. He also highlighted the draft articles’ focus on “the internal space of countries”, which makes them complementary to the other international instruments already mentioned in today’s dialogue.
NIDAA HUSSAIN ABU-ALI (Saudi Arabia) said that combating crimes against humanity is a noble goal for the promotion of justice and the rule of law. Underscoring the importance of promoting accountability and combating impunity, she said her country is committed to the administration of justice in accordance with the rules, national legislation and international conventions. Turning to article 1 and recalling that the goal of the draft articles is to combat and publish crimes against humanity, she said the wording does not correspond to the context. She suggested wording this article to conform with the following two proposals: “The present draft articles apply to crimes against humanity,” and “The present draft articles aim to prevent and punish crimes against humanity.” To this end, she also noted that the latter proposal would require changing the title of this article.
ANDY ARON (Indonesia) noted that there have been nine years of process to make progress on the draft articles. Recalling the critical importance of holding responsible the perpetrators of heinous crimes against humanity, he emphasized that the draft articles represent a step towards clarifying and strengthening the legal framework for prevention and punishment. Citing the obligations of States to take measures to hold perpetrators accountable through fair and impartial legal procedures, he pointed out that such crimes can be committed during peacetime and wartime alike — a critical acknowledgement of the importance of prevention. However, there remain divergent views among Member States that merit further consideration by the Committee, especially on preambular paragraphs 3 and 4, he said, underlining the importance of striving towards future consensus.
MAXIMILIAN GORKE (Austria), associating himself with the European Union, concurred with the Commission’s view that the prohibition of crimes against humanity already constitutes a peremptory norm of general international law, adding that his delegation hopes to learn more about opposing views in this regard. The definition of crimes against humanity, as set forth in the Rome Statute, ensures a consistent codification of customary international law, he said, adding that the last preambular paragraph underlines the ambition that effective prosecution of crimes against humanity can only be ensured by complementing measures at national level with international tools, such as extradition. The scope of a future convention, as stated in draft article 1, will apply to the prevention and the punishment of crimes against humanity. Nevertheless, matters that may not be covered by a future convention would still, to a large extent, be regulated by customary international law. Other grave international crimes, such as genocide or war crimes, should remain regulated by dedicated conventions and not be touched upon by the convention in question, he stressed.
ALIS LUNGU (Romania), aligning herself with the European Union, said that the draft articles provide an excellent starting point for negotiating an international legal instrument, which would consolidate the existing international law framework. Further, the adoption of such an instrument would encourage national-level prosecutions of alleged perpetrators and would constitute a strong basis for inter-State cooperation on the prevention, investigation and prosecution of such crimes. The preamble establishes the basis and conceptual framework for the provisions that follow, supporting its retention in its current form. She also underlined the need to recall the peremptory character of the prohibition of crimes against humanity, as well as the duty of every State to exercise its domestic criminal jurisdiction with respect to such crimes. Further, she welcomed the reference to the Rome Statute, noting that her country has consistently supported a coherent approach regarding the definition of these crimes. She added that the clarity and brevity of draft article 1 — which outlines the scope of the draft articles — could add to the overall acceptability of a future agreement.
The floor then reopened to the Interactive Forum format.
The representative of Cameroon, recalling that some delegations were pointing to an existing legal gap requiring codification, noted that there are rules that would allow crimes against humanity to be punished, not excluding the fact that the current legal framework could be improved. Article 10 of the Rome Statute opens the door to innovation and the creation of a new instrument. The codification being discussed by the Sixth Committee concerns the principle of international law.
The meeting then resumed to formal interventions.
Mr. MARUBAYASHI (Japan) emphasized the importance of adopting a convention on crimes against humanity with broad support, while giving appropriate consideration to the circumstances of each country, including consistency with its criminal law principles and national legal system. As indicated in the commentary prepared by the Commission, she confirmed the non-retroactivity of the draft articles — a widely accepted principle in the international context. Noting that the prohibition of retroactive punishment is a crucial principle — especially in the criminal field — as clearly provided in the Rome Statute, she therefore called for that prohibition to be explicitly stipulated in the text.
KAJAL BHAT (India) said the State with territorial or active personality jurisdiction is best suited for effective prosecution of crimes against humanity. It is in the interest of justice and the rights of the accused, as well as the interests of victims and other such considerations, that territorial or national jurisdictions should be given primacy. The draft articles, which are inspired by the Rome Statute and the Convention on the Prevention and Punishment of the Crime of Genocide, are neither new nor universal. “We fail to see the urgency of an accelerated adoption of the draft without an exhaustive study of its contents through the methods traditionally employed by the International Law Commission,” she stressed, pointing out that several countries in Africa and Asia, including India, are not parties to the Rome Statute. Her delegation is not in favour of simply transposing already existing regimes into a new convention, she stressed, noting that there are some glaring anomalies in the draft articles. As the preamble is drawn from the Rome Statute, which does not enjoy universal acceptance, it must be reformulated particularly with regard to the reference to article 7 of the Rome Statute in preambular paragraph 7.
BRIAN KELLY (United States) recalled his country’s proud history of supporting accountability for those responsible for crimes against humanity, dating back to the instrumental role the United States played in the first prosecution of such crimes in Nuremberg. The preamble draws inspiration from language used in the Convention on the Prevention and Punishment of the Crime of Genocide in setting out the general context and main purpose of the draft articles. That Convention, in many respects, is the primary model for any future convention on the prevention and punishment of crimes against humanity. However, he suggested that draft article 1 could be clarified in certain respects. For instance, nothing in the draft articles should be construed to authorize any act of aggression or any other use of force inconsistent with the Charter. Additionally, it should be made clearer that the draft articles would not modify international humanitarian law, which is the lex specialis applicable to armed conflict. “We would not want,” he emphasized, the draft articles to be interpreted in ways that purport to alter international humanitarian law or criminalize conduct undertaken in accordance with such law.
PETRA LANGERHOLC (Slovenia), aligning herself with the European Union, said the adoption of a convention strengthens States’ ability to prosecute crimes against humanity at the national level. It would provide the legal basis for the inter-State cooperation that is crucial for effective national investigations and prosecutions. The proposed convention, along with the mutual legal assistance initiative that aims to improve the investigation and prosecution of atrocity crimes at the national level, are mutually supportive frameworks which can develop side by side. The Mutual Legal Assistance Diplomatic Conference will be held in Slovenia in May. The adoption of the mutual legal assistance convention will be a major step towards State cooperation to end impunity for atrocity crimes as it will put into practice the principle of complementarity. She also recalled the duty of each State to exercise its domestic criminal jurisdiction over perpetrators of the most unspeakable atrocities that deeply shock the conscience of humanity.
KATARZYNA MARIA PADLO-PEKALA (Poland), aligning herself with the European Union, said that the draft articles address States’ obligation under customary law to prevent, prosecute and punish crimes against humanity and aim to fill the existing gap, also by regulating horizontal relations between States in this domain. She advocated for a victim-oriented approach and welcomed the inclusion of article 12 on victims and witnesses. However, the scope of the provision could be even more ambitious by adding a separate provision on the rights of a child, she said, noting that she will elaborate during discussions on cluster 5. The draft articles are not in any way dependent or contingent on the Rome Statute. Thus, States’ position towards the Court should not affect or influence work on the draft. Stressing that the draft articles rely extensively on provisions that most States have already accepted in widely adhered-to treaties, she affirmed that those ready to accept the need for a treaty to combat torture and corruption will find all the more reason to support a convention on preventing and combating the widespread or systematic murder, extermination, rape or torture of civilian population.
JUAN GÓMEZ ROBLEDO VERDUZCO (Mexico), recognizing the quality and the legal rigor of the draft articles, said the texts found a balance between codification and progressive development of international law and would serve as a foundation for a future convention. He underscored the importance of including in the preamble a reference to the principle of international law and mentioning the purposes of the United Nations contained in the Charter to develop an instrument reflecting universal consciousness and not a vision of a few. Noting that the future convention should pay the same attention to prevention and punishment, he said a preventive focus at the domestic level would be useful. He further detailed the questions relating to the existence of a legal vacuum in conventional law; the ways and instruments to fill this gap; and the “sources of inspiration” that should be used for the purpose. Recognizing that these questions can only be answered once the negotiations have been initiated, he encouraged the Committee to identify areas of convergence and disagreement to reach a final decision on the way forward for drafting a new convention in 2024.
JASSIM ABDULAZIZ J. A. AL-THANI (Qatar) said the draft convention has not addressed the question of formulation of reservations. It does not explicitly mention the inadmissibility of any reservations, he added, noting that this is particularly important with regards to preserving the rule of law or the right of States to issue reservations on a convention. This raises several questions, he stressed, asking: “If a State desires to issue a reservation regarding an article in the convention, would that mean that that State can no longer become a party to the convention?” He also asked whether States have the right to make reservations on the basis of the provisions of the Vienna Convention on the Law of Treaties, provided that those reservations do not contradict the objective of that Convention. Also asking whether a reservation could be of general nature and what sort of means for declaring a reservation could be used to avoid the legal effect of such a reservation, he underlined the need for clarification with respect to those questions.
NASIR UDDIN (Bangladesh) said that his country — having experienced genocide, crimes against humanity and other crimes during the liberation war in 1971 — “cannot overemphasize the importance of this process”. To ensure accountability for those crimes and restore dignity to the victims, Bangladesh conducted trials in national tribunals established in complementarity to the Rome Statute. As a result, a number of individuals were found guilty of crimes against humanity, including targeted killings, sexual violence and torture. Punishing such crimes is critically linked to preventing them; the Committee’s deliberations should place an equal focus on both aspects; and the preamble should reflect a more balanced approach in this regard. Reaffirming States’ duty to exercise criminal jurisdiction with respect to crimes against humanity, he also recalled States’ sovereign right to determine aspects of national criminal justice systems, including the form of punishment for such crimes, in accordance with international obligations. National efforts to prevent and punish such crimes must be supported by international cooperation, he said, adding that the Committee’s deliberations must address the practical challenges faced by national justice mechanisms, including extradition.
MANTSHO ANNASTACIA MOTSEPE (South Africa), voicing her support for the draft articles, recalled the horrors the vast majority of her country endured due to the crime of apartheid. “It is largely due to our dark history that South Africa ardently supports that those guilty of crimes against humanity […] must be brought to justice,” she said. Reiterating that the draft articles are in line with the principle of complementarity, she said States should retain control over the prosecution and punishment of offenders of international crimes. To this end, she underscored the importance of cooperation among States and the need for accommodating cultural specificities and geographical realities, stressing that the legitimate concerns of Member States should not be ignored. Expressing her support for the elaboration of a convention, she said she would like to propose certain changes and recommendations to the text in due course.
MOHAN PIERIS (Sri Lanka) recalled the millions of men, women and children who have perished due to genocide, crimes against humanity and war crimes in the last century, while perpetrators have only rarely been held accountable. While the preamble represents a broad reflection of contemporary international criminal law, similar to the Rome Statute preamble, this approach has many shortcomings, particularly as a one-size-fits-all distinction between the international and domestic offences gets very complicated. He urged delegates to affirm that stopping the cycle of violence and promoting justice requires that impunity must yield to accountability. This is easier said than done, he noted, addressing the respective roles of national courts and international tribunals. Universal jurisdiction is based solely on the nature of the crime and when national courts administer universal jurisdiction appropriately, they act to vindicate their own interests and values, as well as those common to the international community. However, the jurisprudence of universal jurisdiction is unfortunately disparate, disjointed and poorly understood, and potentially beset with incoherence, confusion and even injustice. Enhancing the proper exercise of universal jurisdiction will help close the gap in law enforcement that has favoured perpetrators. However, he also urged delegates to guard against improper exercise of criminal and universal jurisdiction, as it can be used merely to harass political opponents, thereby requiring principles of guidance and coherence.
AMADOU JAITEH (Gambia) said the lack of progress made on finished products, presented to the Sixth Committee by the Commission for endorsement, have made them redundant or reduced to technical roll-overs. “We must, therefore, dare to be different in our pursuit of the progressive development of international law, as well as the protection and promotion of human rights guiding principles, be it nationally or internationally,” he said. The Sixth Committee’s resumed sessions in 2023 and 2024 provide an opportunity to engage constructively on the Commission’s draft articles and elaborate them into a convention. “We must not allow this opportunity to be lost in loose technical debates,” he added. Delegates’ fight to end crimes against humanity must unite Member States, not divide them. This space and time should be used to engage with an open mind that is results-driven and aims to prevent and punish every crime that fits the definition of crimes against humanity.
SERGEI A. LEONIDCHENKO (Russian Federation), noting the significant divergence in the positions both on the content of the draft articles and the International Law Commission’s recommendations, said his delegation continues to not see the prospect for the development of a universal international instrument based on those draft articles. The international legal basis for resolving challenges facing States has existed for a long time, namely in the plethora of treaties on legal assistance and the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity of 1968, he said, adding that questions of crimes against humanity are also regulated within national legal systems. The group of countries that refer to alleged shortcomings of legal regulations should focus first and foremost on developing their own legislation. While his delegation did not object to convening the resumed session, he said it does not see this work as a process of developing a text or a convention. Turning to accusations voiced against his country and the so-called arrest warrants of the International Criminal Court, he said the biased, politicized and non-competent so-called Court once again has proven that it is harmful and flawed. That Court is a puppet in the hands of the collective West, which will never act against its backers, he added.
ELISA DE RAES (Belgium), aligning herself with the European Union, welcomed that the preamble recalls the link between combating impunity in relation to crimes against humanity and maintaining international peace and security. Establishing responsibility and accountability for the most serious crimes is essential for restoring confidence in inclusive institutions, and in so doing, for achieving lasting peace. She also said that the draft articles constitute a good basis for discussions on drafting a convention governing the prevention and punishment of crimes against humanity, which would fill a gap in international treaty law. Highlighting paragraph 8 of the preamble — which focuses on States’ responsibility to prosecute the perpetrators of such crimes — she pointed out that, to shoulder such responsibility, States must have the necessary legislative, administrative and judicial capacity. She also welcomed the preamble’s language regarding the importance of measures taken at the national level and of international cooperation, stressing that the fight against impunity for perpetrators of crimes against humanity “is the business of all members of the international community”.
JOSE JUAN HERNANDEZ CHAVEZ (Chile) said the draft articles constitute an appropriate conceptual framework for discussing the universal convention. Observing that all preambular paragraphs offer a balanced view and consider elements relevant to the topic, he said the preambular paragraph would serve an interpretative purpose. Detailing each preambular paragraph, he underscored that drafting of a universal convention would allow for the development of the general duty that falls on the entire international community. However, this affirmation does not mean that all the provisions suggested would enjoy that legal status. Noting that preambular paragraphs 5 and 6 are mutually reinforcing, he said they are also useful for defining the future convention’s scope of application. Preambular paragraph 7 offers consistency between the new convention and the Rome Statute, he said, noting that the paragraph does not affect the State parties to the Rome Statute, but rather offers a substantive definition in line with general international law. Its inclusion would not have an effect of accepting the International Criminal Court’s jurisdiction, he clarified, while expressing hope that the future convention be compatible with the Rome Statute.
MHD. RIYAD KHADDOUR (Syria) said that the preamble does not offer enough guarantees or normative rules, particularly in regards to sovereign restrictions and peremptory norms included in the Charter, or a commitment from all parties to refrain from the threat or use of force on the territorial integrity or political independence of another country. He called for more wording to ensure that no provision of the convention can be considered as authorization for another State party to interfere in the internal affairs of another State or an armed conflict. Paragraph 2 provides a definition of crimes against humanity as though one already existed, while paragraph 4 states that prohibition of such crimes is a peremptory norm. “But, what crimes are we talking about?”, he asked. Citing several controversial definitions, such as in the Nuremberg Tribunals or the Rome Statute, he called for the Committee to draw inspiration from the latter, which refrains from listing or describing the crimes in its preamble. The Committee cannot work on the basis of the Genocide Convention for a definition, as it is based on a precise resolution of the General Assembly that genocide is a crime under international law. He further stated that the scope of draft article 1 is brief and vague, requiring an in-depth discussion, as the world of today faces many types of conflict.
YOUSSEF HITTI (Lebanon) said the preamble should define a framework and provide an aspiration that includes important references, including the reaffirmation of the principles of international law enshrined in the United Nations Charter, the jus cogens nature of the prohibition of crimes against humanity, the fight against impunity, and the main responsibility of States in the fight against those crimes. He noted with caution the reference in the preamble to article 7 of the Rome Statute, which defines crimes against humanity, recalling that those draft articles drafted by the International Law Commission concern all States, whether or not they are parties to the Rome Statute. The review of this first cluster is also an opportunity to recall that the work by the International Law Commission on this topic aims to strengthen domestic legal systems and cooperation between States, through the drafting of provisions that are effective and acceptable to States, he added.
