The ILC adopts draft art. 7 on Immunity of State officials from foreign criminal jurisdiction.

by Giulia Bernabei*

The issue of immunity of State officials from foreign criminal jurisdiction has been under the lens of the International Law Commission for approximately the last decade. During this time, the Secretariat, the former and the incumbent Special Rapporteurs, Mr. Roman A. Kolodkin and Ms. Concepción Escobar Hernández, various Governments, the Drafting Committee and the ILC in plenary, together with the GA Sixth Committee, have been involved, to varying degrees, in studying the issue.

In this post, I will contend that draft art 7, both in the wording of the Special Rapporteur and in the version eventually adopted by the ILC, does not reflect customary international law nor does it enshrine its progressive development.

I will focus on Ms. Escobar Hernandez fifth’s report released on 14 June 2016. The ILC considered the report at its sixty-eighth and sixty-ninth sessions in 2016 and 2017 respectively. On 30 May 2017, draft art. 7 was referred by the ILC to the drafting Committee, which delivered a report, then introduced to the ILC on 20 July 2017. On that occasion, by 21 votes in favour, 8 votes against and 1 abstention, the ILC provisionally adopted draft art. 7.

The following table sets out the texts of draft art. 7 as proposed by the Special Rapporteur and adopted by the ILC.

Text of the article proposed by the Special Rapporteur

Text of the draft article adopted by the ILC

”Draft Article 7 Crimes in respect of which immunity does not apply 1. Immunity shall not apply in relation to the following crimes: (i) Genocide, crimes against humanity, war crimes, torture and enforced disappearances; (ii) Corruption-related crimes; (iii) Crimes that cause harm to persons, including death and serious injury, or to property, when such crimes are committed in the territory of the forum State and the State official is present in said territory at the time that such crimes are committed. 2. Paragraph 1 shall not apply to persons who enjoy immunity ratione personae during their term of office. 3. Paragraphs 1 and 2 are without prejudice to: (i) Any provision of a treaty that is binding on both the forum State and the State of the official, under which immunity would not be applicable; (ii) The obligation to cooperate with an international court or tribunal which, in each case, requires compliance by the forum State.”

“Draft article 7  Crimes under international law in respect of which immunity ratione materiae shall not apply  1. Immunity ratione materiae from the exercise of foreign criminal jurisdiction shall not apply in respect of the following crimes under international law: (a) crime of genocide; (b) crimes against humanity; (c) war crimes; (d) crime of apartheid; (e) torture; (f) enforced disappearance. 2. For the purposes of the present draft article, the crimes under international law mentioned above are to be understood according to their definition in the treaties enumerated in the annex to the present draft articles.”   Annex List of treaties referred to in draft article 7, paragraph 2 Crime of genocide • Rome Statute of the International Criminal Court, 17 July 1998, article 6; • Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, article II. Crimes against humanity • Rome Statute of the International Criminal Court, 17 July 1998, article 7. War crimes • Rome Statute of the International Criminal Court, 17 July 1998, article 8, paragraph 2. Crime of apartheid • International Convention on the Suppression and Punishment of the Crime of Apartheid, 30 November 1973, article II. Torture • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984: article 1, paragraph 1. Enforced disappearance • International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006, article 2

A comparative analysis of the two texts

Four points may be observed when we compare the texts.

Heading. The Special Rapporteur refers to “immunity” rather than immunity ratione materiae. In fact, only functional immunity can be subject to exceptions, as immunity ratione personae encounters no limit and covers all acts performed by the official, regardless of the official/private capacity.

Para. 1. While both versions of the article exclude the most heinous crimes from the cloak of this type of immunity (with the addition of the crime of apartheid in the newest formulation), the provision adopted by the ILC does not mention corruption-related crimes nor a territorial exception modelled on the territorial tort exception to State immunity.

Corruption per se cannot be considered an act performed in an official capacity and therefore would not be covered by immunity ratione materiae in the first place. And where immunity does not arise, no exception can be claimed.

The attempted transplantation of the territorial tort exception from the civil to the criminal sphere cannot be upheld. A tort is a civil wrong, whose features arise from the context and cannot be easily transposed to criminal sphere. Aside from such terminological considerations, a territorial exception within the field of domestic criminal law is not supported by relevant State practice nor does it rest on a self-standing rationale, not even a remedial one, since other means better fulfil the aims of “access to justice” and “substantive redress”.

Para. 2. This paragraph reiterates that exceptions of art. 7 do not apply to officials enjoying personal immunity while on office. However, personal immunity is absolute in nature and overrides any exception. In line with my remarks, in fact, draft art. 7 as adopted by the ILC does not include such provision.

Para. 3. The third paragraph of the Special Rapporteur’s draft art. 7 is a safeguard clause which implies that art. 7 does not affect: i) any bilateral treaty between the forum and the sending State aimed at excluding the applicability of immunity; ii) the obligation to cooperate with international adjudicative fora. As with the comments made on paragraph 2, this paragraph does not shed light on any of the contentious issues, for which reason it does not appear under the article adopted by the ILC. That idea that a treaty provision prevails over a customary norm (unless it conflicts with a jus cogens norm) is derived from the principle according to which lex specialis derogat legi generali. It is not a specific feature of the law of immunities. The same can be said for the obligation to cooperate with an international court or tribunal, whose statutes are usually embedded in international conventions or resolutions of the UN Security Council.

A critique of the final wording of draft art. 7 adopted by the ILC

Heading. The heading of the ILC formulation assumes that immunity ratione materiae shall not apply at the occurrence of some international crimes. The use of the phrase “shall not apply” implies two consequences. On the one hand, it substitutes the concepts of “limitations and exceptions” referred to by the Special Rapporteur’s fifth report. And it is not clear whether this entails a rejection of the binomial limitations/exceptions or instead its tacit acceptance. On the other hand, the phrase is in line with the one used under art 12 UNCSI which, however, is much more detailed than its criminal counterpart.

Para. 1. Even within the ILC, it was questioned whether the list was to be intended as exhaustive or merely illustrative. According to the final wording of draft art. 7, it seems that the list is exhaustive since it does not leave any room for new or additional crimes. As for the list itself, as per the statute of the ICC, torture falls under the definition of both crime against humanity and war crime, while apartheid and enforced disappearance qualify as crimes against humanity. However, their inclusion as autonomous crimes may perhaps be justified by the need to exclude the application of immunity ratione materiae even if the threshold of the criteria for war crimes/crimes against humanity is not met.

Out of all grounds upon which to reject draft art. 7, the one that distinguishes the procedural nature of immunity from the substantive analysis of the merits is certainly captivating. One cannot gloss over the fact that immunity must be examined at the early stages of the proceedings, in limine litis. Moreover, the commentary is cryptic in stating that the non-inclusion of the crime of corruption and of the so-defined territorial tort (!) exception “does not mean, however, that the Commission considers that immunity […] should apply to these two categories of crimes.” Obscure, to say the least. In addition to this, it should be noted that there is a lack of customary international law to support such a territorial exception.

For the time being, it is not predictable what will be the final articulation of the draft articles on immunity of State officials from foreign criminal jurisdiction. Draft art. 7 indicates the confusion and inconsistency that has marked the discussion within the ILC.

*Visiting Lecturer in Public International Law at King’s College London