Professor Alexander Orakhelashvili
In an earlier post I commented on State reactions to ILC’s Article 7 on the immunity of State officials before foreign courts. The second round of State comments on Article 7 did not yield much in terms of its distinct content. Most essential updates include Germany’s overview of its latest domestic practice on this matter, and Colombia’s point that “as such crimes involve jus cogens norms, their investigation and prosecution cannot be refused under any circumstances.”
In his Second Report, the Special Rapporteur proposes to retain Article 7 according to which perpetrators of serious international crimes do not enjoy immunity. In support of this position, the Report cites wide-ranging evidence from State practice (paras 53 to 74), including the practice of States whose comments on the Commission’s work were directed against Article 7. It is clear by now that both State practice in general and views of States on the Commission’s work are widely supportive of retaining Article 7, and that the opposition to that Article is becoming even smaller and less consistent (given also that some States have opposed by words what they have been practicing by deeds).
I have earlier suggested that without Article 7, of by treating the principle that Article states to be a progressive development of international law, ILC’s draft on the immunity of State officials would endorse their absolute immunity. The way the immunity of State officials is defined in the ILC’s draft only strengthens that possibility. Draft Article 2 suggests that an “act performed in an official capacity” means any act performed by a State official “in the exercise of State authority”. This way, the Commission’s draft prima facie at least contradicts the suggestion made by the previous Special Rapporteur in her Fourth Report that these two concepts – official capacity and sovereign/State authority – are not identical, and that the former is considerably wider than the latter.
Commentary to Article 2 suggests that there is “a direct connection between the act and the exercise of State functions and powers” (here, p.209); and further specifies that “as a rule, acts performed by officials purely for their own benefit and in their own interest cannot be considered as acts performed in an official capacity, even though they may appear to have been performed officially.” (para.25) This could appear to be a somewhat nuanced and not a blanket construction of “official capacity”. However, the commentary also endorses a rather over-extended definition of State authority, “which the Commission considered sufficiently broad to refer generally to acts performed by State officials in the exercise of their functions and in the interests of the State” (para.26). This could create an impression that the commentary hereby endorses a rather dubious amalgamation of concepts that are not about the same thing.
In paragraph 27 of the commentary, the Commission identifies “the added problem of having to define the elements of governmental authority or sovereignty, which would be extremely difficult and is not considered part of the Commission’s mandate”. But the definition of a State and its authority which the Commission places emphasis on could be just as complex, theoretical and inter-disciplinary task. The bottom-line is that State authority and sovereign authority are the same thing, and eschewing their definition could only strengthen the impression that the notion of “State authority” merges into, or becomes subservient to or merely explanatory of, the far wider notion of “official capacity”.
The Commission’s illustrative list of the examples of what is done by State officials in their “official capacity” (p.211-212, para.31 here) is not any coherent or homogeneous either. The Commission’s some examples are about generically identified types of activity (for instance military activities) that could include many diverse types of concrete actions and conducts; and other examples are about concrete acts or conduct.
The Commission’s commentary refers to the Enrica Lexie Arbitral Award in support of its “official capacity” thesis. However, that Award has adopted a rather nuanced approach to public or State activities. The guards acted in their official capacity, but they also performed acts that was associated to their public function, namely opening fire once they were under apprehension of threat and not sure that the target of fire were mere peaceful fishermen. This is not the same as activities of German armed forces in the International Court’s decision on Jurisdictional Immunities (Germany v Italy), or torture under Jones v Saudi Arabia (UK House of Lords), and it is highly unlikely that the Arbitral Tribunal would have affirmed the officials’ immunity had they seized those fishermen, brought them to their vessel and then subjected them to torture or slave labour.
It is clear (as discussed here, here and here) that official capacity[1] and State authority are not identical concepts. Nevertheless, the Commission’s commentary does not sufficiently depict the contours of difference between these notions. Official capacity, official functions,[2] sovereign (or public) act or activity are all generic terms that require the assessment of conduct and cases in the light of certain pre-set criteria that each of these notions refers to. At the same time, each of those notions is informed by a different ontology and is concerned with a distinct social reality or motivation of human conduct. There can be no feasible amalgamation of, or a mark of equality, between these notions.
In criminal as well as in civil proceedings, the target of litigation is a concrete act or conduct of the relevant person or entity that is argued to violate applicable legal requirements. Hardly is anyone going to be indicted or sued on the account of performing some public or State activities on the general plane, including for acting in any “official capacity” per se. The specific conduct that is an object of criminal or civil proceedings could accompany or be accidental to the wider activities performed in one’s “official capacity” or in the exercise of sovereign authority. Identifying these distinctions is the essence of the restrictive doctrine of State immunity that is meant to define the immunity of a State as well as that of its officials. When the specific conduct in question amounts to a crime or tort, the precise nature of that act or conduct has to be assessed; and then, the context of it being performed in an “official capacity” has to be irrelevant. Otherwise, that context could be used to effectively reclassify a non-sovereign or non-public act (commercial, contract, tort, employment-related etc.) into a sovereign or public one.
To illustrate all this by examples, investigating a crime is an official function; questioning a crime suspect or victims by police is done in official capacity and in the exercise of State authority, because State officials have the authority to investigate and question the relevant persons; torturing the crime suspect is not a public, governmental or sovereign activity, because there is no such thing as the public authority to torture, even if the official doing so may be acting in their “official capacity”. Conducting a war as a military or combat activity (planning operations, supplying, attacking, defending etc.) is an element of State authority; officers and soldiers who do so act in an official capacity and in the exercise of State authority; if, however, they kill innocent civilians, sovereign authority is no longer involved, because there is no authority available under any legal system to kill innocent civilians. In short, one has to be in an official capacity to exercise sovereign functions or authority; but not everything done in official capacity amounts to a conduct performed as part of State or sovereign authority. To illustrate this further, members of the security guard of President Erdogan (here, here, and here) have been operating in their official capacity when protecting the President; however their further attacks against protesters cannot be described as conduct in the exercise of sovereign authority. The outcome is that the “official capacity” of these security officials is neither here nor there, because beating protesters is not part of any public or sovereign authority, and the latter cannot be available in any case where officials act violently on the foreign soil.
It is clear from the above that without Article 7, or by treating it as lex ferenda, the ILC’s work on foreign State officials’ immunity would, as it stands now, endorse the doctrine of absolute immunity with regard to State officials who act as part and on behalf of a State.
What is, then, the point in insisting that States and their officials should be immune for international crimes and serious violations of human rights among others because, according to some unarticulated utilitarian calculus, relations between the wrongdoer and forum States are more important than the offender’s accountability and victim’s rights? What has, by now, become increasingly obvious is that those so-called “orthodox” or “conservative” solutions of this dilemma have failed to find adequate support in State practice: twenty years after its adoption, the UN Convention on Jurisdictional Immunities of States and Their Property has failed to obtain the modest number of ratifications necessary for its entry into force with regard to a limited number of States; the International Court’s decision in Jurisdictional Immunities has faced increased resistance in State practice; and the UK House of Lords decision in Jones v Saudi Arabia has led to almost insoluble problems in English law as manifested, for instance, by the High Court’s decision in Al-Masarir. As I summed up in my inaugural lecture, the path of international law is accountability and development, not impunity and stagnation. It is, therefore, high time to recognise that State practice is not necessarily hostile to accountability-oriented solutions, and it is not a template of any utilitarian ideology either.
[1] Capacity means “ability or power to do something” and “a specified role or position”. Compact Oxford English Dictionary (3rd ed., 2005), 139
[2] Function is understood as meaning “The special kind of activity proper to anything; the mode of action by which it fulfils its purpose,” with particular reference “to a person as belonging to a particular class, esp. to the holder of any office,” The Oxford English Dictionary (2nd ed., vol. VI, 1989), 263