Professor Alexander Orakhelashvili
The Commission’s identification of the scope of foreign State officials’ immunity
In its latest draft on immunity of State officials from foreign criminal jurisdiction, the UN International Law Commission has proposed Article 5(1), according to which “State officials enjoy immunity ratione materiae from the exercise of foreign criminal jurisdiction with respect to acts performed in an official capacity.”[1] Earlier in her Fourth Report on this topic, Special Rapporteur Escobar Hernandez has explained that “The term “act performed in an official capacity” is broader in scope than “acta jure imperii”, and could cover certain acta jure gestionis performed by State officials in the discharge of their mandate and in exercise of State functions.”[2] The ILC’s approach thus proposes a substantial extension of the ordinary approach to the immunity of State officials under the restrictive doctrine of State immunity, according to which the State is immune for the acts that consist of the exercise of its sovereign and public authority and State officials are immune for the same range of acts, i.e. for what the State itself would be immune. Under the Commission’s approach, a bulk of non-public activities related to contract, tort, employment or human rights would be protected by immunity. In essence and without requisite qualifications, this is to endorse absolute immunity to be enjoyed by State officials. This is not an outcome that could be defended either on principle or against the background of State practice.
If the approach endorsed by the ILC was one that forms part of positive international law, then all that would remain beyond the range of acts and conduct for which State officials enjoy immunity from foreign jurisdiction would be the renting of a holiday apartment or taking out a private car insurance. The truth of the matter is, however, that the notion of “official capacity” has nothing to do with determination of the scope of State immunity. As explained earlier (here, here and here), “capacity” is merely a context in which public as well as private acts are perpetrated by a State official, and at most it helps to identify the proper defendant in the court proceedings, but hardly determines the nature of the specific acts or conduct. The fact that an official acted on duty or in official capacity proves no more and no less than it acted as an agent of State and its activities are attributable to the State because the State has perpetrated them through one of its officials. This would be the point where the examination of the scope State immunity ought to begin, not where it ought to end, because the ultimate point of departure is whether the act performed in an official capacity is one for which the State itself would enjoy immunity under the restrictive doctrine that focuses on the distinction between sovereign (public) and non-sovereign (private) acts. Despite the confusion endorsed in the House of Lords judgment in Jones v Saudi Arabia in 2006, State immunity is a matter essentially and qualitatively different from that of the attribution of internationally wrongful acts to a State. If a public official were to enjoy immunity for anything and everything perpetrated in their official capacity, that would rest on a false hypothesis that the State itself would enjoy immunity for anything that its officials do, i.e. that it would enjoy absolute immunity. As a State acts only through its organs, instrumentalities and officials, the totality of activities of State officials in their official capacity (i.e. at the service of the State) is the same as totality of all activities of that State.
The idea that State officials’ immunity should be wider than State immunity is entirely an idea of progressive development of international law (lex ferenda). Moreover, the “official capacity” requirement is not a matter of State immunity but has crept into the State immunity discourse after the House of Lords discussed the relationship between the 1984 Convention against Torture and immunity of a foreign head of State. As a matter of CAT, however, it bears repeating that the phrase “other person acting in an official capacity” instead relates to torture perpetrated by rebel, guerrilla, or insurgent groups who exercise de facto authority in certain regions or of warring factions in so-called ‘failing States’. Hence, public or sovereign authority of a State generically differs from a non-State actor’s “official capacity”.
ILC’s Article 7 on core international crimes and State comments on it
The ILC has adopted, by majority of its members’ votes, Article 7 of its draft, according to which foreign State officials’ immunity does not extend to core international crimes such as genocide, war crimes, torture or crimes against humanity. Reactions of States to this provision have varied and can be classified into several groups.
Sceptics
According to Australia, “draft article 7, as currently drafted, reflects the progressive development of international law. However, taking into account recent practice, including by national courts, Australia acknowledges that there is a discernible trend of the non-applicability of functional immunity for serious international crimes at the national level.” (A/CN.4/771, 54) Similarly, “France believes that the provision, as it stands, must be regarded as progressive development.” (id., 57). This is hardly in accordance with France’s own practice in the related areas. For instance, the French judiciary has confirmed the arrest warrant against the sitting head of State of Syria, in a development that is a “first time a national court has recognised that a sitting head of state does not have total personal immunity”. In other words, not only immunity ratione materiae but also immunity ratione personae would have to yield. Hence, the impact of criminalisation of core international crimes under international law must be cutting even further than is sometimes supposed, and certainly beyond what the ILC has been envisaging so far. And, if France’s own approach submitted to the ILC were to be correct, then France would owe reparation to Syria for violating the latter’s rights, at least on terms envisaged by the International Court of Justice in the Arrest Warrant case in 2002.
Germany proceeds from the premise that the immunities of foreign State officials stem from the requirements of positive or customary international law, suggesting that “Where the Commission wishes to go beyond the scope of what already has been recognized by States as applicable international law, this must be made explicit by designating the paragraph in question as lex ferenda.” (A/CN.4/771, 54) In that regard, it has to be noted that in a relatively recent decision, the German Supreme Court (Bundesgerichtshof) has recognised the difference between the sovereign activity test and the matters regulated by CAT. The Court denied immunity of Syrian officials because the crimes allegedly committed by them were crimes under international law. Hence, the Court did not consider it necessary to address the alternative argument that ratification of CAT by Germany affected the defendants immunity, even though certain academic writings had suggested this may be the case.[3] In a more recent decision, the German Supreme Court has emphasised that State immunity was not be an obstacle to prosecuting foreign State officials even if they acted at the service of a State, because foreign official immunity does not apply to crimes under international law and this is the position under customary international law.[4] Thus even for “official” activities State immunity may not necessarily be available under international law. More recently, the German Parliament (Bundestag) has adopted the law on further development of international criminal law.[5] Article 4 of this Law embodies an amendment to Germany’s Courts Constitution Act (Gerichtsverfassungsgesetz), to the effect that functional immunity of foreign State officials will not prevent their prosecution for core international crimes that are included in Germany’s Code of International Criminal Law (Völkerstrafgesetzbuch).[6] If taken on their face value, Germany’s suggestions to the Commission look like Germany was admitting the illegality, under international law, of its own legislation and judicial practice. This is hardly a phenomenon without precedent, as the decision of the UK High Court in the Al-Masarir case has illustrated earlier.
Proponents
Austria is of the view that “no functional immunity exists for international crimes, including the crime of aggression, by virtue of customary international law.” (A/CN.4/771, 54) Similarly, “The Czech Republic suggests that the non-applicability of immunity ratione materiae in these cases is a consequence of normative incompatibility of such immunity with definitions and obligations under international law.” (id., 55) Estonia suggests that the relevant core international crimes “can never be considered a function of a State and, consequently, “acts performed in an official capacity”.” (56). Also, “Lithuania is of the position that as a matter of customary international law, State officials shall not enjoy functional immunity for crimes under international law” (68). Speaking for the Nordic countries Norway has stated that “The Nordic countries support draft article 7. In their view, no rules of immunity should apply in national jurisdictions for the gravest international crimes” (75). Spain also states that “under international custom, immunity ratione materiae cannot be applied in respect of crimes under international law” (A/CN.4/771/Add.1, 13).
According to Luxembourg, “Draft article 7 accurately reflects customary international law insofar as it confirms the non-applicability of immunity ratione materiae to the crime of genocide, crimes against humanity and war crimes.” (A/CN.4/771, 71) Romania is of the view “Draft article 7, as a reflection of customary international law, provides that immunity ratione materiae from foreign criminal jurisdiction shall not apply in respect of the core crimes of international law” (id., 79). Furthermore, “Switzerland supports draft article 7” (id., 80), and “Sierra Leone fully supports draft article 7 which concerns crimes under international law in respect of which immunity ratione materiae shall not apply.” (A/CN.4/771/Add.1, 10)
Also, in terms of the Commission’s view that State officials ‘immunity should be determined by the criterion of official capacity as opposed to that of sovereign authority, Ireland’s position is very much to the point. Ireland states that, “while acknowledging the difference of opinion within the Commission on draft article 7, in the view of Ireland the absence of a provision such as this would mean that the scope of immunity ratione materiae would be much broader than international law currently allows. Its view is that such immunity is in fact subject to important limits imposed by international criminal law as it has developed in recent decades. These limits, Ireland believes, should indeed be the subject of a draft article.” (A/CN.4/771, 59)
Opponents
States opposing Article 7 include Brazil, in whose view “article 7 does not reflect customary international law.” (A/CN.4/771, 56), and also USA, Russia, Iran and Israel – a rather very unlikely coalition in any other international context. The USA suggests that Article 7 “is not supported by widespread and consistent State practice and opinio juris and State practice” (A/CN.4/771, 98). This is a view which enquires into the normative status of an “exception” from the putative rule of State (or State official) immunity, without first identifying the legal basis for the contention that the main immunity rule itself is “supported by widespread and consistent State practice and opinio juris and State practice”. As explained earlier, proving that in relation to the mainline immunity rule is very difficult, and proving the status of an exception from the mainline rule – from one whose existence cannot be proved in the first place – is a virtual impossibility. Also, it is rather curious that the USA’s submission is made against the background of their own judicial practice, namely cases of Noriega and Lafontant v. Aristide, where US courts have clearly emphasized that “the grant of immunity is a privilege which the United States may withhold from any claimant.”[7] In other words, it is not a legal requirement under international law.
State comments also draw on the “official capacity” criterion and the relevance of the Torture Convention. To illustrate, United Arab Emirates refer to and agree with the comments by Sir Michael Wood that the denial of immunity to Pinochet by the House of Lords was determined by the impact of CAT. (A/CN.4/771, 92) This is hardly accurate, however, because their Lordships in Pinochet have also relied upon the impact of jus cogens and the limited scope of State immunity under the restrictive doctrine. That the immunity of foreign State officials from foreign jurisdiction is denied in State practice not owing to CAT, but because of the limited scope of acta jure imperii is also evidenced by the above decision of the German Supreme Court which tackled this matter on its head and concluded that, regardless of the endorsement of the CAT-determined rationale in certain academic writings, immunity here was to be denied because the acts concerned were beyond the functional scope of immunity. In other words, the German Supreme Court was more straightforward than those relying on the rather convoluted argument based on CAT.
Conclusion
It remains to conclude that States opposing or critiquing Article 7 are by no means a majority of States (whether ones that commented on this matter or all States) and their comments do not adequately reflect the relevant practice of States and international courts. Moreover, the value of their position in terms of State practice is rather dubious because what they tell the Commission is not always the same as what they do in their practice; in other words, in some cases the right hand of a State is not always aware of what its left hand is doing. Comments by States touch a rather wide variety of issues and matters. It remains to be seen whether further comments to be received will reveal any new ground. In general, however, ILC’s drafts have no binding force, and they do not always represent State practice accurately or secure uptake by States by way of ratification of treaties. The essentially dead-born nature of the 2004 Convention on Jurisdictional Immunities is only one example proving that certain solutions that appear to be “conservative” and hence sound do not always find their reflection in State practice. The ICJ’s 2012 Judgment on Jurisdictional Immunities is another example of this phenomenon (and see also here on the latest litigation in Korea).
Article 7 has nothing to do with progressive development of international law (or lex ferenda); instead, it reflects the principle that core international crimes are beyond a State’s sovereign authority; or that customary international law provides for no immunity for such crimes; in addition, or alternatively, it could be seen reflect the position that even if customary international law were to endorse immunity of State officials, the jus cogens status of criminalisation of core international crimes would trump that putative customary rule. Some States may be opposing Article 7 because they are concerned about their officials being prosecuted abroad. However, political interest and motivation to avoid criminal prosecution of relevant States’ officials is not the same as legal position. Moreover, without Article 7, ILC’s draft would endorse absolute immunity and nothing but absolute immunity of foreign State officials and do so on grounds that are alien to positive international law and the restrictive doctrine of immunity. State practice has not upheld such outcome before, and it is very unlikely to do so in the future.
[1] Immunity of State officials from foreign criminal jurisdiction, Texts and titles of draft articles 1, 3, 4 and 5 [6] as provisionally adopted by the Drafting Committee on 9 to 22 July 2024A/CN.4/L.1001, 23 July 2024
[2] Fourth report on the immunity of State officials from foreign criminal jurisdiction, By Concepción Escobar Hernández, Special Rapporteur, A/CN.4/686 (29 May 2015) para. 30
[3] German Supreme Court, 3 StR 564/19, Decision of 21 January 2021, paras 47, 48, 60
[4] German Supreme Court, AK 4/24, Decision of 21 February 2024, para. 54
[5] Gesetz zur Fortentwicklung des Völkerstrafrecht, vom 30. Juli 2024, Bundesgesetzblatt Nr.255, 2024.
[6] The provision in question prescribes that “Funktionelle Immunität hindert nicht die Erstreckung deutscher Gerichtsbarkeit auf die Verfolgung von Verbrechen nach dem Völkerstrafgesetzbuch.”
[7] United States v. Noriega, 99 ILR 162–163; Lafontant v. Aristide, 103 ILR 586.