I. Introduction
The International Law Commission (ILC) has studied the topic of immunity of State officials from foreign criminal jurisdiction since 2008, and to this day, it has not yet concluded the ‘Draft Articles on immunity of State officials from foreign criminal jurisdiction’ 1. This may be the result of the presence of many sensitive topics, such as the discussion on exceptions of immunity ratione materiae.
Such exceptions to this immunity have been inserted into Draft Article 7, provisionally adopted by the ILC in 2017. It was done by a recorded vote 2—an unusual practice for the Commission—and to this day the debate has not yet been settled. Recent discussions within the ILC in 2021 have pointed out the need to resolve the different views held among the members of the commission 3.
One such difference is whether the result of the work on the topic should become a treaty or whether it should be concluded as draft articles. Additionally, it is not clear—and the reports of the special rapporteur are silent on the matter—whether Draft Article 7 constitutes lex lata or lex ferenda.
Therefore, this study aims at analysing the creation and provisional adoption of Draft Article 7, and possible implications that it may have in light of the sometimes harsh criticisms that have been made against it 4 and recent developments after the members voted for its approval, in 2017, as mentioned above 5.
In this sense, the first chapter of the analysis focuses on the current law as it is—a very short summary of the features of immunity that are widely accepted as being customary law. The second chapter of this article will focus on the work of the ILC and its criticisms, focusing mostly on exceptions to immunity ratione materiae and on what the final form of their study should be. Finally, some comments will be made on two possible consequences of the adoption of the Draft Articles without making it clear whether Draft Article 7 (regarding exceptions) constitutes lex lata or lex ferenda.
II. The Current Rules on Immunity from Foreign Criminal Jurisdiction
While some rules connected to immunity for foreign officials are disputed, it seems more difficult to challenge those rules that have acquired broader acceptance. This article intends to quickly summarise such rules, taking the difference between the two types of immunity as a starting point.
Indeed, the International Law Commission has made it clear that foreign officials enjoy two types of immunity, one which is attached to them during their term of office, called immunity ratione personae 6, and another which extends after the term of office, called immunity ratione materiae 7. This division does not seem to be disputed 8.
The first type of immunity, also called ‘personal immunity’, is attached only to a very limited range of people, including the Head of State, Head of Government, and the Minister for Foreign Affairs 9. There may be other categories of State officials who enjoy this same immunity, including the heads of diplomatic missions (special or permanent), ‘but only in relation to possible criminal proceedings in the states where they are accredited or on mission’ 10. This rule is found in the Vienna Convention on Diplomatic Relations 11, and in the Vienna Convention on Special Missions 12.
Although the international community has reached a high degree of consensus on this topic, as reflected by Draft Article 3 13 of the ILC’s project, it is still being debated whether this list should be extended or not. To this date, it is not clear whether other high-ranking officials would enjoy personal immunity, but the case law has already determined that minsters of defence are part of the restricted list of officials who have full immunity 14. Whether by functional justification 15 or by other justifications, such as the personification or embodiment of the State 16, it seems that it is not only the so-called troika 17 that has immunity ratione personae.
As for the acts protected by such immunity, it can be said that all acts performed before or during the term of office are covered 18; therefore, it applies both to private and official acts 19, and consequently also ultra vires acts. Finally, it applies both to civil and criminal foreign jurisdictions 20.
Although this type of immunity is very broad, it is not applicable in at least three different circumstances. The first of them is when the State waives the immunity of its official 21; the second, when the agent is no longer a State official 22; and the third, when it is not applicable before the International Criminal Court, when that court has jurisdiction 23.
The second type of immunity exists from the moment the official formally engages in the activities of the role and subsists indefinitely—it is the immunity ratione materiae, protecting the official from both civil and criminal jurisdiction.
In contrast with the previous form of immunity, this type of immunity does not cease to exist when the persons involved have left their posts; however, it attaches only to acts performed in an official capacity 24. It therefore by definition does not cover private acts. This conclusion was also reached by the UK Supreme Court, in the case of Reyes v. Al-Malki, whereby the Court understood that the employment of domestic services by Mr. Al-Malki, an ambassador, is not an official function of a diplomatic post; therefore, the defendant did not enjoy immunity ratione materiae, because the employment of Ms. Reyes was considered a private act 25. On the other hand, all official acts are protected, perhaps also including ultra vires acts 26.
In regard to which officials are covered by immunity ratione materiae, it has been defended that all State organs within the meaning of Draft Article 4 of the Articles on the Responsibility of States for Internationally Wrongful Acts (attribution of conducts to a State) may enjoy such immunity 27. Moreover, since this functional immunity is attached to the agent by virtue of their ‘official acts’, and not of their position, it may be the case that persons who are not employed by the State are also covered by it, provided that they have a de facto link with the government and were acting in the exercise of state sovereignty 28.
Procedurally, it is not clear whether the immunity has to be invoked by the State or not, with existing practice going in both ways. In this sense, the International Court of Justice has noted that a State is ‘expected to notify the authorities of the other State’ when one of its nationals under trial enjoys immunity 29. On the other hand, some recent judgments have examined the matter proprio motu 30.
Similarly to immunity ratione personae, there are three instances in which immunity ratione materiae does not apply. The first of them is when the State waives the immunity of its official 31, and the second is when the person is being prosecuted before the International Criminal Court, provided that it has jurisdiction 32. The third instance, unlike the first two, is not widely accepted, as it deals with exceptions based on the nature of the act.
Among the different doctrines that discuss exceptions to immunity, it seems that currently the discussion on possible exceptions to immunity has been narrowed down to international crimes, which is exactly the content of Draft Article 7 of the ILC’s Draft Articles on the topic. The case law diverges in this sense, with some judgments accepting the existence of exceptions 33, and other judgments denying these same exceptions 34. In light of these disagreements and the sometimes heated discussions within the ILC 35, it is not clear, at least at the present moment, whether international crimes constitute an exception to the application of immunity ratione materiae or not.
III. Discussions within the ILC Regarding Draft Article 7
The topic of immunity from foreign criminal jurisdiction, as seen in the first chapter, brings some disagreements in key topics, such as which officials enjoy immunity ratione materiae, whether immunity has to be claimed or not, what are the procedural aspects and consequences of waiving it, and the question of exceptions to this immunity.
Having these considerations in mind, Roman Kolodkin has proposed that the topic be studied within the International Law Commission, arguing that this institution could contribute to the discussion by means of codification and progressive development of the matter 36. As such, the ILC has, to this date, discussed three reports by Kolodkin (although the last one was not thoroughly discussed), then special rapporteur on the topic, and eight reports by Ms. Escobar Hernandez, the new special rapporteur.
The first three reports dealt with the definition and sources of immunity, that is, who can enjoy it, procedural aspects, the difference between immunity ratione personae and ratione materiae, and exceptions, among other subjects 37. The following eight reports were presented by the new special rapporteur, who decided to work on the topic on the basis of Draft Articles, with a view to both codify and contribute to the progressive development of the topic 38. Until now, the Draft Articles have been adopted on first reading, and are now waiting for comments from governments within the General Assembly’s Sixth Committee. These Draft Articles are divided into four parts, namely, Introduction, Immunity Ratione Personae, Immunity Ratione Materiae, and Procedural Provisions and Safeguards 39.
Despite this adoption of the Draft Articles, the ILC does not know whether these Draft Articles are going to be concluded as such, or whether the document will become a treaty 40, notwithstanding the position of the special rapporteur, who wishes it to remain in the form of draft articles 41. Similarly, the matter of which provisions reflect existing customary international law and which represent progressive development is not entirely spelled out in her reports 42. Last, but not least, the divergence of views regarding Draft Article 7, dealing with exceptions, have not yet been sufficiently debated.
All of these criticisms have been discussed within the International Law Commission itself, and it is worth mentioning particularly the sixty-ninth session, in 2017, where the members provisionally adopted the controversial Draft Article 7 in a recorded vote 43. Since then, it has been a latent issue in the sessions that have followed it.
The positions of the members of the ILC are divided among those who believe that an international crimes exception is already a rule of customary international law, those who deny it, and those who recognize this exception as progressive development. Ultimately, the main disagreement is related to the analysis of the practice leading to the conclusion of the special rapporteur.
The members that have criticized the analysis of the practice did so by arguing that, firstly, there is not enough practice to support such an exception or that the Fifth Report ignored practice in the contrary or even that some of the cases mentioned dealt with civil jurisdiction, not criminal 44. Moreover, it was also pointed out that the treaties mentioned in the same report were not sufficiently consistent and that it ignored those cases which were not pushed forward because the immunity claim was upheld 45. Similar concerns were expressed by five authors who jointly wrote a Symposium about Draft Article 7, among which only one, Sean Murphy, was a member of the ILC at the time 46.
Whilst admitting the existence of the above criticisms and difficulties to her proposition, Ms. Escobar Hernández maintains her view in support of the adoption of Draft Article 7, arguing that the low number of cases is intrinsically connected with the nature of each of the cases, that is, international crimes, and that the disagreement of a certain region (i.e. Africa) does not hamper the creation of a rule of customary law 47. Finally, the special rapporteur also believes that the existence of conflicting judgments is not disconnected with the essence of the formation of a customary law 48, perhaps making reference more to progressive development than to lex lata. In her opinion, then, the disagreement between the position of African States, and what she believes is the general practice, is not enough to dismiss her belief that Draft Article 7 is indeed customary international law. This could, however, be more connected to a particular international law among African States, if not entirely preventing the formation of a general customary law.
That said, she insists that it is undeniable that a clear trend in favour of such exceptions exists, at the very least 49, a view supported by another twenty members of the ILC but opposed by eight 50. As already mentioned, however, she advocates for the existence of a true norm of customary international law in the matter 51.
As argued here, this is a controversial and problematic affirmation.
First, it is problematic because of the lack of definition on the final form of the Draft Articles—whether they are going to be adopted as such or as a new treaty. Despite the words of the Special Rapporteur herself, in the reports submitted to the ILC, States and members of the Commission believe that the discussions about the Draft Articles depend on the final form that the project will take 52.
As already noted, however, the members of the ILC disagree on the matter, with some members saying that their work is not the project of a treaty, whereas others claim that the approach of adopting a new treaty should not be discarded 53. A recent development in this regard is the discussion held in 2021 within the ILC, whereby the special rapporteur didn’t exclude the possibility of changing their work to a treaty on second reading 54. To be noted, however, is that some ILC members recommend nonetheless a better consensus on Draft Article 7 55.
Moreover, these and other divergences among the members of the commission make it controversial to affirm the customary nature of Draft Article 7. But more than the internal discussions, briefly mentioned above, both State practice and opinio juris are also not consistent enough to support this rule as customary law 56.
When it comes to opinio juris, it is worth noting that the support of States within the UNGA’s Sixth Committee to Draft Article 7 was favourable to 12 of them, whereas 22 of them have expressed concerns or disagreements with the project; moreover, 10 of them mentioned that the ILC should have reached a consensus before adopting the Draft Article 57. What is more, it has been argued that the Commission voted on its adoption with the premise ‘that it is not a codification of customary law, but [that] to some extent represents the progressive provisions of international law’ 58.
Admittedly, there are some newer examples of cases which denied immunity in cases of suspects accused of war crimes. Recently, the German Federal Court of Justice has rendered a judgment 59 which has brought the attention of scholars, due to its importance. In a nutshell, the court has determined that at least “subordinate” officials (without explaining what the word means) enjoy immunity ratione materiae with respect to crimes under international law 60, thus establishing a different view of the status for these officials with respect to Draft Article 7. Moreover, the Court mentioned that those who oppose the adoption of Draft Article 7 ‘appear contrary to the state of customary international law’ 61.
All in all, this is not to say that there is no clear trend in favour of this rule, or that such a rule is not advisable. Rather, it seemed that the provisional adoption, had it not been done in a rush, i.e., without discussing further the antagonistic views, would likely not have brought such criticisms towards the mandate of the ILC, as was well said by the German delegation within the UNGA’s Sixth Committee 62.
IV. Problems Arising From the Work of the ILC
The current international law of immunities has been explained in the second section, and the conclusion that, in the current status, there are no exceptions to immunity ratione materiae in criminal proceedings, in the third section, it is now appropriate to consider the consequences of the adoption of Draft Article 7 in the way it has been written. This is because there may be negative consequences of the provisional adoption of Draft Article 7 if it constitutes a progressive development, and not a customary norm, as argued above.
As such, two possible problems were seen as the result of said provisional adoption. First, national judges—without the resources of international law knowledge—have applied Draft Article 7 as hard law, either by truly believing it is customary international law, or by using it as an excuse to achieve political goals through judicial activism. Second, another problem that is a consequence of the first, is that states would be internationally responsible for the acts of its national courts, which disregard the obligation to respect the immunity which is attached to a foreign State official.
The following expands on the reasoning behind the identification of these problems:
a. Wrongful use of international law by domestic judges
An essential preliminary question is whether domestic courts apply international law, although this does not seem to be very controversial. As explained by Escobar Hernández herself, ‘the decisions of national courts are based on the conviction that they are acting pursuant to international law and not in exercise of an absolute discretion’ 63. Similarly, it has been underlined that ‘[t]he main problem arising from the relationship between fundamental human rights and jurisdictional immunities lies (…) in the exercise of jurisdiction by the courts of one State over the acts of another’ 64.
Therefore, when asked to judge the immunity of a foreign state official, a national court can use the draft articles on immunity drawn up by the ILC as its ratio decidendi. However, if a certain provision does not reflect customary international law and the text adopted does not make it clear, then these judgments would be based on rules that are contrary to the state of international law as it currently is. Consequently, these courts would apply Draft Article 7 on exceptions to immunity ratione materiae, in violation of the international obligation to respect the immunity of current or former State officials. In fact, since the provisional adoption of Draft Article 7, more national courts have decided to prosecute foreign State officials, despite their immunity 65.
While it is true that this would not be a relevant problem if the Draft Articles were read together with the discussions within the Commission, this is unlikely to happen. Moreover, ‘even if they did so, the position of the members is not always explicated and is at times hard to grasp’ 66. This view is in line with Mathias Forteau’s critique, according to which judges ‘primary addressees of the draft articles on immunity from criminal jurisdiction’ need clarity about the existing rules on the topic 67. For this reason, he concludes that, if the provisions on progressive development did not clarify its status as such, it ‘could prove more harmful than helpful’ 68.
It is also possible that this lack of clarity is the purpose of the International Law Commission (at least of those members who voted for the provisional adoption of Draft Article 7). Since the special rapporteur and some other members believe that the provision on exceptions to immunity ratione materiae reflects customary international law, and because they want to push forward the fight against impunity, Sean Murphy has suggested that the omission as to the status of this norm as progressive development was made on purpose 69. The result of this is that national courts would apply the exceptions on Draft Article 7, creating more consistent practice to a further recognition of such exceptions as an international custom 70.
It is indeed possible that such judgments consistent with Draft Article 7 would create a more favourable atmosphere for recognising it as customary law, if they were widespread and representative, which partially confirms Murphy’s fear.
b. State responsibility for dismissing existing immunities
Stemming from the first problem, a second negative consequence of the adoption of Draft Article 7 is that national courts, if they apply the rule of exceptions to immunity in the ILC project, would be violating the obligation to respect the immunity of foreign state officials. Therefore, because such an obligation is governed by international law 71, the forum State would be responsible for this violation, following Article 12 of the Articles on the Responsibility of States for Internationally Wrongful Acts 72.
This responsibility, which is the consequence of a violation of an international obligation, can occur in at least two different ways.
First, the possibility exists that a national court, unaware of the fact that customary international law does not accept exceptions 73, applies Draft Article 7 because it was believed to be a binding provision. Even under this hypothesis, that is, an erroneous judgment in good faith, the practical consequence would be the criminal prosecution of a foreign State agent who would otherwise be immune to the jurisdiction of this court. In fact, this is precisely the reason why some cases have been brought before international courts, in order to challenge acts and decisions of national courts which violated the immunity of a State agent 74.
The second consequence happens when national courts act in bad faith. Some members of the ILC alerted other members about this possibility by criticising the Special Rapporteur’s choice to proceed with the analysis of procedural aspects of immunity only after the material aspects have been discussed 75. According to them, this separation results in a risk of the forum State abusing its jurisdiction, extending it illegally, and even opening space for ‘politically motivated trials of State officials in foreign jurisdictions’ 76.
Aware of this possibility, the ILC has adopted Draft Article 14 (3), which deals with procedural safeguards specific to Draft Article 7, bringing new conditions to apply to the latter. Interestingly, it brings a requirement of a formal nature, namely that the determination of immunity must be done by an ‘appropriately high-level’ authority, and of a material nature, so that the exceptions to immunity ratione materiae would only apply if there are ‘substantial grounds’ to the claim 77. These requirements may indeed soothe—but not eliminate—the impact of Draft Article 7; however, possibly it would make more sense if the ILC’s project results in a treaty instead of the current intention, which is for the project to remain in the form of a set of Draft Articles 78.
Whether in good faith or in bad faith, the practical result of such prosecution is that foreign State agents would be brought to trial for criminal acts. In other words, it would mean a ‘return to normality’ of territorial sovereignty, according to which each State has jurisdiction over the acts and persons present in its territory 79. This, however, ‘could weaken stability in international relations and run counter to the cause of fighting impunity and promoting human rights’ 80. To illustrate how immunity has an important role in maintaining peaceful relations between States, it can be reminded that it was precisely this disregard of immunity of State officials by French courts that led the Rwandan government to severe diplomatic relations between them for three years 81.
As stated by the International Court of Justice, immunity was conceived not only to allow the exercise of official functions 82, but also to respect the sovereign equality between States 83 and the friendly relationship between them. Thus, when Kolodkin, proposed to study the topic within the International Law Commission, he pointed out a growing concern with the fight against impunity, showing the need to reconcile the existing tension between this and the friendly relationship between States and its sovereignty—all of which are interests of the international community 84. This is why he argues that the existence of exceptions to immunity is not even desirable as a matter of progressive development, because it would affect the stability of international relations 85.
While it is true that the disrespect of immunities may indeed deteriorate the friendly relations between States, it seems too far-fetched to say that the same result would be achieved if, in the future, Draft Article 7 of the ILC’s project reflects a customary law. The problem is not the criminal prosecution of foreign State agents accused of committing serious crimes, as long as it is not carried out contrary to international law. But as of the present moment, because its customary status is at least debatable, the use of these exceptions as a political tool, at the convenience of the national government, is concerning 86.
It is a valid concern, on the other hand, that the recognition of criminal immunity could lead to impunity, although this is not necessarily the case. Some situations, such as in the case of the State waiving of its official’s immunity or prosecuting them within their own national courts, are legal alternatives that would not lead to impunity. Moreover, even if a State is unwilling to prosecute their high-ranking officers for political reasons, there still could be a gross change in the political situation that would lead to prosecution of such officers.
Admittedly, some situations would indeed lead to impunity if some officers enjoy immunity for criminal proceedings; however, States should be more aware of pushing this rule on exceptions to immunity beyond State practice. It is not a surprise that the United States, Russia, and China have been cautious in recognizing this possibility, because they know that prosecuting foreign State agents means also that their own agents will probably be prosecuted by foreign national courts 87.
V. Conclusion
Immunity is currently one of the topics that has been drawing attention from many practitioners, States and scholars. As mentioned above, this can be explained by the sensitivity of the topic, since it affects one of the pillars of the modern international law, i.e., sovereignty.
Nonetheless, it is possible to find some rules that are widely accepted. For example, it is well known that immunity ratione personae is attached to high-ranking officials, that it covers all of their acts, but that it ceases to exist with the end of their term in office. As for immunity ratione materiae, few would contest that it attaches to all State officials, but only in relation to official acts, and it also subsists in time, even after the person is no longer an official. While both types of immunity are not applicable before the International Criminal Court and when the State waives the immunity of its official, there is disagreement about the existence of exceptions to immunity ratione materiae.
The Special Rapporteur to the topic of immunities within the International Law Commission has proposed a Draft Article which accepts the existence of such exceptions. While this has gained support of some members and by some States who reacted to it, others have criticised it, mostly attacking the lack of a consistent and uniform practice, and the lack of a clear indication of whether the exceptions listed constitute customary law or progressive development. Moreover, the project is still under discussion, and it is not certain whether this will take the form of a treaty or remain in the form of draft articles. Recently, there are new examples of cases for and against the existence of exceptions to immunity ratione materiae.
Be that as it may, analysing the reaction of States, the criticism of ILC members, and the reasoning of the Special Rapporteur, the six crimes listed in Draft Article 7 do not constitute true exceptions for applying immunity from foreign criminal jurisdiction of State agents under the rules of customary international law. And if this is so, then its application becomes problematic, as it may result in a breach of an international obligation of the State to respect the immunity of foreign State agents, and consequently States, would be internationally responsible for this sort of breach.
Finally, if indeed national courts have been applying this provision under the impression that it is a binding rule, then the International Law Commission could have contributed to a deterioration of friendly relations between States, while doing so in the name of the fight against impunity. Following this possibility, Kolodkin’s objective would not have been achieved., , , ,