Professor Alexander Orakhelashvili
[This is a follow-up on earlier posts on the same subject-matter, available here and here.]
Time and again, and recently, it has been discussed whether the International Law Commission’s approach to the lack of immunity of State officials for core international crimes reflects a settled legal position or is merely a matter lex ferenda or progressive development of international law.
In terms of customary international law, State practice consists more of what States do in situations where international law is complied with or violated, and less of how States try to retrospectively assess whatever has already been done or avoided in practice. Hence, what certain States say before the ILC or the 6th Committee in opposition to ILC’s Article 7 does not have the same weight as State practice dealing with actual prosecution of foreign State officials before national courts. In addition, not all States opposing Article 7 practice what they preach. Germany and France who called upon the ILC to exercise caution or adopt the lex ferenda line have repeatedly denied foreign State official immunity in their own jurisdictions. Also, most States which commented on Article 7 are in favour of it, if not additionally calling to expand its scope by including in it the crime of aggression.
But the analytical problem goes beyond the statistical aspect of this matter. The debate on this and other aspects of State or State official immunities has frequently involved the premise that the relevant immunities are guaranteed under customary international law. And those who have looked with scepticism at the ILC’s Article 7 have been guided by the proposition that in order to endorse the lack of State official immunity for core international crimes one has to demonstrate the existence of an exception from the otherwise valid and general rule that confers the immunity ratione materiae to those officials. At the same time, rather insufficient attention has been devoted to the matter of how that putative general rule on ratione materiae immunity from criminal jurisdiction has emerged and become part of international law in the first place.
On closer inspection, it turns out that there is little to support rationalising the existence of such general immunity rule, apart from some occasional or perfunctory endorsement in early 19th century, notably in the McLeod controversy. A suggestion was made in the relevant correspondence that “whether the process be criminal or civil, the fact of having acted under public authority, and in obedience to the orders of lawful superiors, must be regarded as a valid defence”. It is not clear from the context of this situation that immunity as we speak of today was at the heart of discussion (especially in terms of the distinction between liability and immunity), let alone that the McLeod statement is sufficient to provide the basis on which territorial State’ s jurisdiction ought to be restricted in such a wholesale and far-reaching manner or under a general rule of international law. The Nuremberg Judgment has robustly contradicted the idea that officials acting at the service of a State are immune from legal proceedings or free of international legal restrictions. The Tribunal has stated that “He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state if the state in authorizing action moves outside its competence under international law.” That is currently the position regarding core international crimes at least.
There is, indeed, little more than natural law-style deductive reasoning that could be used in support of projecting the existence of a general rule on State official immunity. There is no multilateral treaty on the immunity of foreign State officials in any type of legal proceedings, which is in contrast with the immunity of diplomatic representatives regulated by the Vienna Convention on Diplomatic Relations that is also widely regarded to reflect customary international law relating to the VCDR’s subject-matter. But there is more that should form part of the analytical focus here. The fact that States across the world have accepted immunity of diplomatic representatives for a long time has to do with stakes that are involved with such immunity, namely the fact that they apply to a limited number of foreign officials which find themselves accredited and present in the host State’s territory with that State’s consent only. The same goes with jurisdictional provisions in visiting forces agreements. However, stakes are rather different with the assertion of a general immunity for all foreign officials. For instance, USA has 21 million public officials and France has 6 million of them, and it would be rather wide or the mark to suggest that the current State of international law requires host States to accord immunity to all foreign State officials, for whichever act or conduct, merely on the basis that they happen to be on their territory. Also, the UN Convention on Jurisdictional Immunities, endorsing immunity of State officials in civil proceedings has not entered in force, which confirms that the position it states does not command general consensus among States. This is parallelled by the fact that, from Al-Adsani onwards in 2001, courts and tribunals endorsing immunity of State officials have not offered a proper analysis of State practice and customary law.
Only if one were to be able to point to the evidence that supports the existence of a general rule of customary law on the immunity of foreign States or their officials would one be justified to query whether an exception from that immunity exists or would be desirable as lex ferenda or progressive development. In the current situation, discussing this matter through the prism of customary law involves the use of deceptive and inaccurate vocabulary. Apart from State practice discussed above, it is obvious that US courts do not consider themselves bound in any manner to endorse any foreign State official’s immunity; and that even the illegally abducted President of Venezuela is not able to invoke head of State immunity before American courts.
Therefore, the ILC’s adherence to calls of what is in certain circles perceived to be a sound restraint would involve endorsing the premise that all those countries that have exercised jurisdiction over foreign officials such as the UK, France, Sweden, Germany, Spain or Austria, are currently acting in violation of international law. The ILC would have full knowledge of the fact that these States are not going to revoke their legislation or discontinue relevant proceedings against the background of the possible suggestion that what they do reflects a desirable way of the development of the law rather than its actual position. The ILC would end up having endorsed the absolute immunity of foreign State officials, given the earlier endorsement in ILC’s Article 2 of the “official capacity” test effectively (if not professedly) over and above the sovereign authority test.
Proponents of the lex ferenda line do not seem to have addressed the relevant policy considerations either. Given that Western States such as USA, France and Germany consider themselves free to prosecute State officials from third world countries, any call for restraint and caution in terms of other States exercising their jurisdiction over foreign State officials would be premised on and approve a de facto selectivity through which a neo-colonial state of affairs would be purported to be legitimised.