By Sujoy Sur
[This article is a critical analysis of the Fifth Report of the Special Rapporteur, Ms Concepción Escobar Hernández, on Immunity of State Officials from Criminal Jurisdiction, discussed during the 68th session of the International Law Commission. It was written as a part of an internship at the International Law Commission, Geneva during its 68th session in 2016]
The Report A/CN.4/701 can be accessed here. Since it is a lengthy report, a summary of the Report in the form of a conclusion drawn by the Special Rapporteur that there must be exceptions and limitations to the immunity of State Officials can be read onwards page 92 of the Report. This article is not a comprehensive critique of the Special Rapporteur’s report but a mere critique of the methods employed by the Rapporteur and the line of reasoning the Rapporteur tries to establish to make a case for exceptions to immunity of State officials in certain cases. Since diplomatic protection of State Officials is a customary norm, there is a prevailing trend of immunity in its favour, both in terms of Rationae Materie and Rationae Personae. The following analysis must be read in light of this established fact.
(The format is as per the Special Rapporteur’s report)
Part II of the Report – Study of Practice
Sub-part C. International Judicial Practice
- International Court of Justice (Page 31) – In paragraph 61, the Special Rapporteur mentions the Arrest Warrant Case, where the Court held that an exception to immunity cannot be deduced based on State Practice or Instruments creating criminal courts or tribunals. Under paragraph 63, the Rapporteur notes the Court’s stance that “in no way affects immunities under customary international law, including those of Ministers for Foreign Affairs”. However, to put forth the need for an exception the Rapporteur cites the dissenting minority opinion of judges Judge Al-Khasawneh and Judge ad hoc Van den Wyngaert. The Rapporteur also relies on an obiter dictum of Judges Higgins, Kooijmans and Buergenthal (Para 68) to make a case for exceptions to immunity from foreign criminal jurisdiction. This does give an insight to a sect of literature which supports the need for an exception but still goes against the prevalent State Practice and the opinion of the International Court of Justice.
- International Criminal Courts or Tribunals (Page 42) – In paragraphs 96 – 108, the Special Rapporteur does give a holistic analysis of the jurisprudence of exceptions to immunity before international criminal courts or tribunals, but all the excerpts provided are of application when the Criminal Court has been given jurisdiction to try the individuals for their international crimes, either by way of a treaty or by courts which are set up or work in accordance with the Rome Statute (for example, the example of Al-Bashir, where the South African Supreme Court gave the order by admitting the rule of law formulated by the International Criminal Court, which in general is acceded to by States by way of a treaty obligation and not Customary or Peremptory norms of International Law). Thus, it cannot be imported mutatis mutandis in cases where only 2 states are involved for acts which need to be preliminarily analyzed to be stated as international crimes.
Sub-part D. National Judicial Practice
Page 46 – In Paragraph 110, the Rapporteur mentions the universal and customary prevalence of immunity of State officials from foreign criminal jurisdiction, including international crimes. In terms of national legislative practice, which would provide the scope to the other organs, including the State judiciary, to rule on matters of immunity, the Rapporteur concludes the lack of regulations of the nature of immunity by most States but cites only 3 states as an exception to the prevalent lack of legislative practice – The United States Foreign Sovereign Immunities Act, the Canadian State Immunity Act and the Spanish Organic Act 16/2015. Even under these legislations, the practice of not providing immunity is that of an exception and has to be applied on an exceptional basis. Under the US’s Foreign Sovereign Immunities Act, the exception is solely an exception based on Terrorism and not on any other peremptory norm. Also it as an act which is rather political in nature as the act has to be designated so by the Secretary of the State and not the Court of Law. It does not seem reasonable to import this exception in cases where jurisdictional immunity has to be excepted solely on legal grounds and a trial has to take place within the norms on full-fledged criminal trial with the power of determination being submitted to only the Court of the forum where the alleged act was committed. Further the US Act addresses acts committed ‘while acting within the scope of his or her office, employment, or agency’, therefore, it is limited to immunity Ratione Materiae. Also, only one of the Acts, the Spanish Organic Act, rules on both aspects of Ratione Personae and Ratione Materiae; though, again, this legislation had been drafted to be in accordance with the ICC Statute Regime and specifically addresses to it. Thus, it cannot form a basis to a “trend” in international law which supports an exception to immunity from criminal jurisdiction.
Part III of the Report – Limitations and exceptions within the general legal context of immunity from foreign criminal jurisdiction: methodological and conceptual issues
Sub-part A. Legal Nature of Immunity
1. Relationship between Immunity and Jurisdiction (Page 63): Paragraphs 145 – 147 deal with the immunity and its limitation by way of exercise of jurisdiction. In paragraph 145, the Special Rapporteur recognizes that jurisdiction of a State to try a case and immunity of the official in that state cannot, logically speaking, co-exist. However, under paragraph 146, the Rapporteur, asserts that because of this very logic, jurisdiction of a State to try matters of international crimes in accordance with legal principles of international community will prevail over the right of immunity and states that in practice as well immunity will prevail over jurisdiction. This issue requires much greater consideration and has not been delved into with great detail by the Rapporteur.
The rapporteur fails to point out as to how will a State initiate an investigation to take cognizance of the matter if by way of immunity it does have jurisdiction, for even to determine if the act was committed by the State official or the act was an international crime the State will need to invoke jurisdiction to conduct preliminary investigation. The Rapporteur fails to point out as to how will a State by itself forego the established principle of customary law of diplomatic and consular immunity to invoke jurisdiction to conduct the investigation.
Secondly, the Rapporteur fails to provide any State Practice on this point before concluding the issue under paragraph 147 on purely logical grounds.
Thirdly, under paragraph 149, under the heading of Relationship between immunity and responsibility, that ‘criminal responsibility’ can be determined and established differently without the jurisdiction of the forum State. That is immunity in the current form prohibits lack of responsibility by one channel but allows the establishment of responsibility through other procedural channels, as has been established by the ICJ. In light of this, it is not clear why the Rapporteur would want to diminish the practice immunity of State officials by allowing the forum State to have jurisdiction to try the officials
Sub-part B. National and International Criminal Courts or Tribunals (Page 66) : Under this heading, the Rapporteur introduced the ‘complementarity principle’ established under the Rome Statute under Paragraph 160. On the basis of this principle and citing some State Practice, the Rapporteur excessively relies on the Rome Statute to conclude that National Courts by way of the ‘complementarity principle’ to have jurisdiction to try international crimes (Para 168). This seems irreconcilable with the principles of international law, where a customary law which has reached a level of a peremptory norm by way of its continuous and historic usage, immunity of State Officials in this case, cannot be prevailed over by any treaty or newly established practice which goes against the norm. This would, in case it is enacted as a treaty, be a violation of A. 53 of VCLT, which itself as a treaty has gained customary acceptance by the international community.
Under the heading of International Crimes, subheading Limitation or exception based on the commission of international crimes as a customary norm, under paragraph 182, the Rapporteur acknowledges the tentative nature of international crimes becoming a customary exception to any form of immunity by noting that they yet are needed to be determined. The presumptive and conjectural nature of the trend becoming a customary norm in also noted by the Rapporteur towards the conclusion of this subheading in paragraphs 188- 189. It then appears inconsistent with established international law, when the Rapporteur asserts the prevalence of such a tentative, yet-to-be-determined norm over an age-old customary law of immunity of State Officials.
- Limitation or exception based on the commission of international crimes as a customary norm (Page 74)
Under paragraph 184 the Rapporteur argues for relying on National laws and practices to determine a customary trend in realizing international crimes as an exception to immunity. Under paragraph 185 the Rapporteur then acknowledges a trend, supported by reasoned decisions of the International Court of Justice and the European Court of Human Rights, which in equal vehemence goes against the trend of not compromising on immunity for international crimes. Under paragraph 187 the Rapporteur states that the decisions of the International Court of Justice and the European Court are to be taken only as “subsidiary means” and that the role of National Courts takes a greater priority in this matter. This assertion, though made with good reason by the Rapporteur, does not find any substantiation anywhere, and the Rapporteur also does not cite any source for putting forth this assertion. Such an assertion goes squarely against the second report of the Commission discussed during its 64th Session, on “Formation and Evidence of Customary International Law by Special Rapporteur Michael Wood. The Report through paragraphs 54-65 acknowledges the role of the International Court of Justice and its jurisprudence in recognizing and deducing Customary International Law. Rather, national courts play an important role in enforcing international law across the world as they rely on International Law and decisions of the international courts in interpreting and enforcing laws.
Part IV of the Report – Instances in which the immunity of State officials from foreign criminal jurisdiction does not apply
Subpart A. International crimes
- Systemic categorization of international crimes as an exception to immunity
Page 78 – The Special Rapporteur establishes that international crimes as themselves have reached a status of inviolable peremptory norms. As has been acknowledged by the Rapporteur, “It is incontrovertible that international crimes are contrary to the fundamental values, norms and legal principles of the international community”, and the Rapporteur sets out a strong case for an “accountability” mechanism (Paragraph 195). International crimes constitute a violation of peremptory norms (jus cogens), and the Rapporteur makes a case for immunity not being a strong enough opposing norm by citing national court rulings and Article 27 of the Rome Statute as a basis. The Rapporteur then in paragraph 200 acknowledges that ICJ has rejected jus cogens norms being an exception to immunity in the Jurisdiction Immunities of the State case on the grounds that jus cogens norms and the norms governing State immunity are distinct sets of rules. This then makes a rather contradictory point in the establishment of jus cogens as an exception to immunity, further when the European Court has also followed the path of ICJ. The Rapporteur critically analyses the reasoning of the Court of immunity of State Officials being a “procedural bar” which the Court held that such a procedural bar does not take away a recourse to other methods of accountability. This leads to the Special Rapporteur presuming hypothetical instances where there would not be any recourse possible to any other alternative, thus, leading to the assertion that the bar of immunity should be recognised as a “substantive bar” as well. The Rapporteur mentions that the lack of any such contemplation by the ICJ in its judgment is a lacuna in the jurisprudence but undermines the possibility of the ICJ envisaging this possibility and yet holding in utmost confidence that there are “always” alternative recourses possible. Also, the Rapporteur does not by way of any practical example support this presumption as to the possibilities of no alternative recourse being inapplicable, thus, leading to unjust unaccountability.
 R Falk, The Role of Domestic Courts in the International Legal Order (Syracuse University Press, New York, 1964) 72; H Schermers, ‘The Role of Domestic Courts in Effectuating International Law’ (1990) 3 Leiden J Intl L 77, 79; B Conforti and F Francioni (eds), Enforcing International Human Rights in Domestic Courts (Martinus Nijhoff Publishers, Boston, 1997); T Franck and G Fox (eds), International Law Decisions in National Courts (Transnational Publishers, New York, 1996); B Conforti, International Law and the Role of Domestic Legal Systems (Martinus Nijhoff Publishers, London, 1993)