Published online by Cambridge University Press: 20 January 2017
The happiest outcomes of the work of the International Law Commission (ILC) result when those charged with reporting on a topic elucidate the existing law with maximum objectivity and accuracy and when, where desired, they formulate such possibilities for its avowed progressive development as find a solid basis in emerging practice or international jurisprudence and are unlikely to arouse implacable opposition among members of the Commission or member states of the General Assembly. This history should be foremost in the minds of those presently leading the Commission’s work on the immunity of state officials from foreign criminal jurisdiction as they come next session to report on possible limitations on and exceptions to such immunity. Whether the eventual aim is codification or reform, any consideration of this most controverted and combustible of contemporary questions of international law that is not based on an impartial and convincing assessment of relevant state practice and international case-law and that misreads the political temper of the times will end in tears, in the Commission itself and even more so in the Sixth Committee of the General Assembly.
1 For a fuller treatment of most of the points made infra, with a detailed account of the relevant international and national jurisprudence and practice, including positions taken in the Sixth Committee, see Roger O’Keefe, International Criminal Law 373, para. 9.29 note 47, 422-5, paras 10.41-10.44, 438-53, paras 10.71-10.91 and 458-9, paras 10.101-10.104 (2015).
2 Arrest Warrant of 11 April 2000 (Dem Rep. Congo v. Belg.), Judgment, 2002 ICJ Rep. 3, 24–25, paras 58–59 (Feb. 14).
3 See Int’l Law Comm’n, Second report on immunity of State officials from foreign criminal jurisdiction, U.N. Doc. A/CN.4/631, at para. 55 (2010) [hereinafter “Second report”].
4 Prosecutor v. Al Bashir, ICC-02/05-01/09-195, Pre-Trial Chamber, Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al-Bashir’s Arrest and Surrender to the Court, para. 25 (Apr. 9, 2014), para. 25.
5 See also Second report, supra note 3, at 56, para. 90; Wuerth, Ingrid, Pinochet’s Legacy Reassessed , 106 AJIL 731 (2012)Google Scholar.
6 The absence, as things stand, of an “international crime” exception to immunity ratione materiae is made all the clearer by the fact that the burden of proof lies on those seeking to establish a positive exception to the forum state’s otherwise-applicable customary international obligation to afford immunity, not on those affirming the obligation.
7 See Arrest Warrant of 11 April 2000 (Dem Rep. Congo v. Belg.), Judgment, 2002 ICJ Rep. 3, 25, paras 59 and 61 (Feb. 14); Juris- dictional Immunities of the State (Ger. v.. It.), Judgment, 2012 ICJ Rep. 99, 136, para. 82, 140, para 93 and 141, para. 95 (Feb. 3). All are considered in more detail infra.
8 Jurisdictional Immunities of the State (Ger. v. It.), Judgment, 2012 ICJ Rep. 99, 136, para. 82 (Feb. 3).
10 Id., at 140–1, paras 93–95. For jus cogens-based judicial reasoning denying the availability of immunity ratione materiae in criminal proceedings for alleged international crimes, see Cass. Pen., Lozano (Mario Luiz) v. Italy, 24 luglio, 2008, No. 31171/2008 (Ita.), ILDC 1085 (It 2008), para. 6. Immunity was eventually upheld on other grounds. See also Tribunal fédéral [TF] [Federal Supreme Court], Jul. 25, 2012, Doss. No. Bb.2011.140 (Swi.), paras 5.3.4–5.3.5, where the court speaks, more than a little optimistically, of “a manifest tendency on the international plane to want to restrict the immunity of (former) heads of state in cases of crimes pertaining to jus cogens “ (author’s translation). The ratio of the decision, however, as evident Id., para. 5.4.3, appears ultimately premised on the court’s reading of an official statement made by Swiss legislators when enacting into Swiss law the crimes within the jurisdiction of the Icc. It is also worth noting that the decision of the Swiss minister challenged before the court predates the Icj’s dicta in Jurisdictional Immunities, as do all the pleadings in the challenge bar the réplique (two days after the ICJ’s judgment) and the duplique (two months later), neither of which could by that point have incorporated the Icj’s jurisprudence.
11 Jurisdictional Immunities of the State (Ger. v. It.), Judgment, 2012 ICJ Rep. 99, 141, para. 95 (Feb. 3).
12 For the most famous but narrowest judicial argument to this effect, see R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3)  1 A.C. 147 (HL) 266–267 (Lord Saville) and 277–278 (Lord Millet) (Eng.), Mar. 24, 1999).
13 Arrest Warrant of 11 April 2000 (Dem Rep. Congo v. Belg.), Judgment, 2002 ICJ Rep. 3, 25, para. 59 (Feb. 14). See also Int’l Law Comm’n, Third report on immunity of State officials from foreign criminal jurisdiction, UN Doc. a/CN.4/646, at para. 55 (2011).
14 Arrest Warrant of 11 April 2000 (Dem Rep. Congo v. Belg.), Judgment, 2002 ICJ Rep. 3, 25, para. 59 (Feb. 14).
15 Id., at 25, para 61.
16 For judicial arguments to this effect, see R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 1)  1 A.C. 61 (Hl) 109 and 111 (Lord Nicholls), 115–16 (Lord Steyn) and 118 (Lord Hoffmann) (Eng.), the case subsequently having been annulled, with the consequence that it cannot be counted for the purposes of state practice; Hof Amsterdam, Nov. 20, 2000 Nj 2001, 51 m. nt., (Wijngaarde et al. v. Bouterse) 3 Y.B. Int’l Humanitarian L., para. 4.2, Nov. 20, 2000), overturned on appeal on other grounds.
17 For further indications that the fact that state officials act in excess of authority or instructions, contrary to instructions or contrary to the general law, including the criminal law, of the state of which they are officials does not of itself mean that their acts are not performed in an official capacity, see paras 2 and 3 of the commentary to draft art. 43 of the ILC’s Draft Articles on Consular Relations, Report of the International Law Commission on the work of its thirteenth session, UN Gaor, 16th Sess., Supp. 10, at 92, UN Doc. A/4843, reprinted in  2 Y.B. Int’l L. Comm’n 92, UN Doc. A/CN.4/Ser.A/1961/Add.1; R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3)  1 A.C. 147 (HL) 203 (Lord Browne-Wilkinson), 217–18 (Lord Goff), 242 (Lord Hope) and 271 (Lord Millet); Second report, supra note 3, at 15–19, paras 27 and 29–31. It ought to go without saying that it is immaterial for the purposes of immunity from foreign criminal jurisdiction whether the act was allegedly contrary to the criminal law of the forum state, as opposed to the state served by the official. Were this not so, there would be no point in discussing immunity from foreign criminal jurisdiction in the first place.
18 Statute of the International Court of Justice, art. 38(1)(d ).
19 See the “Enrica Lexie” Incident (It. v. India), Case No. 24, Request for the Prescription of Provisional Measures, Order of Aug. 25, 2015, (ITLOS, Aug. 24, 2015), and ongoing proceedings in the case.
20 See Daugirdas, Kristina & Mortenson, Julian Davis, Manhattan Arrest of Indian Consular Officials Sparks Public Dispute Between the United States and India, 108 AJIL 325 Google Scholar. Although the furore centered as much on the alleged manner of the suspect’s arrest, the subsequent criminal proceedings against her and the immunity from jurisdiction claimed for her by India equally factored.
21 Int’l Law Comm’n, Rep. on the Work of its Sixty-Seventh session, UN Doc. A/70/10, 121, para. 194 (2015).
22 See Convention on the Privileges and Immunities of the United Nations, Feb. 13, 1946, 1 UNTS 15 (corrigendum 90 UNTS 327), section 14.