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Horizontal Enforcement and the ILC’s Proposed Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction

  • Chimène I. Keitner (a1)

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The Nuremberg principles affirmed by the U.N. General Assembly and formulated by the International Law Commission (ILC) provide that “[t]he fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him (sic) from responsibility under international law.” Few would dispute this basic principle. More contested is the question of who has authority to impose consequences on individuals for international crimes committed on behalf of states. This is because, if an individual has acted with actual or apparent state authority, imposing consequences on the individual without her state’s consent runs counter to traditional notions of state sovereignty and noninterference.

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Copyright

References

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1 GA Res. 95 (I) (Dec. 11, 1946).

2 Text of the Nürnberg Principles Adopted by the International Law Commission, 65 UN Gaor Supp. No. 12, at 11, UN Doc. A/1316 (1950) reprinted in [1950] 2 Y.B. Int’l L. Comm’n 374, UN Doc. A/CN.4/Ser.A/1963/Add. 1 A/CN.4/L.2 at 375 (1950).

3 See, e.g., Keitner, Chimène I., Germany v. Italy and the Limits of Horizontal Enforcement: Some Reflections from a U.S. Perspective , 11 J. Int’l Crim. Just. 167 (2013).

4 General Assembly, Seventieth Session, The scope and application of the principle of universal jurisdiction (Agenda item 86).

5 Rome Statute of the International Criminal Court, July 7, 1998, 2187 Unts 90.

6 ICC-OTP, Informal Expert Paper: The Role of Complementarity in Practice, para. 76 (2003).

7 See, e.g., Arrest Warrant of 11 April 2000 (Dem Rep. Congo v. Belg.), Judgment, 2002 ICJ Rep. 3, 61 (Feb. 14); Prosecutor v. Taylor, Case No. Scsl-2003-01-I, Decision on Immunity from Jurisdiction, para. 41 (May 31, 2004).

8 Rome Statute of the International Criminal Court, art 17 (1)(d)July 7, 1998, 2187 UNTS 90; see also deGuzman, Margaret M., What is the Gravity Threshold for an ICC Investigation? Lessons from the Pre-Trial Chamber Decision in the Comoros Situation, 19 ASIL Insights no. 19 (Aug. 11, 2015).

9 International Law Commission, About the Commission, Organization, programme and methods of work, Object of the Commission.

10 Int’l Law Comm’n, Fourth report on the immunity of State officials from foreign criminal jurisdiction, para. 135, U.N. Doc. A/CN.4/686 (2015) [hereinafter “Fourth report”].

11 Institut de droit international, Resolution on the Immunity from Jurisdiction of the State and of Persons Who Act on Behalf of the State in case of International Crimes (2009).

12 Fourth report, supra note 10, at para. 135.

13 See, e.g., id. at paras. 111, 121.

14 Id. at para. 32.

15 Id. at para. 51.

16 Draft Articles on the Responsibility of States for Internationally Wrongful Acts, art. 7, Report of the International Law Commis sion on the work of its fifty-third session, 19 UN GAOR Suppl. No. 10, at 43, UN Doc. A/56/10 (2001), reprinted in [2001]2 Y.B. Int’l L. Comm’n reprinted in 2001 Y.B. Int’l L. Comm’n 26, UN Doc. A/CN.4/Ser.A/2001/Add. 1 [hereinafter “Draft Articles on State Responsibility”].

17 Fourth report, supra note 10, at para. 82.

18 See id. at para. 116.

19 Fox, Hazel, The Law of State Immunity 455 (2d ed. 2008).

20 Fourth report, supra note 10, at para. 85; see also id. at para. 99.

21 Id. at para. 101.

22 Id. at para. 105; see also id. at para. 107.

23 Id. at para. 97.

24 Id. at para. 99.

25 Int’l Law Comm’n, Immunity of State officials from foreign criminal jurisdiction, Text of the draft articles provisionally adopted by the Drafting Committee at the sixty-seventh session, UN Doc. A/CN.4/L.865 (2015).

26 Id.

27 Int’l Law Comm’n, Immunity of State officials from foreign criminal jurisdiction, Text of draft articles 2 (e) and 5 provisionally adopted by the Drafting Committee on 15 July 2014, UN Doc. A/CN.4/L.850 (2014). The Chair of the Drafting Committee noted that draft article 5 might need to be revisited in light of draft article 6(1), which does not use the expression “acting as such.” Int’l Law Commission, Immunity of State officials from foreign criminal jurisdiction, Statement of the Chairman of the Drafting Committee, Mr. Mathias Forteau (2015) at 6.

28 Int’l Law Commission, Immunity of State officials from foreign criminal jurisdiction, Statement of the Chairman of the Drafting Committee, Mr. Mathias Forteau (2015) at 4.

29 Fourth report, supra note 10, at para. 124.

30 Id.

31 Jones v. United Kingdom, 2014-II Eur. Ct. H. R. 32, 214.

32 See, e.g., Wuerth, Ingrid, Pinochet’s Legacy Reassessed , 106 AJIL 731, 744 (2012).

33 See, e.g., William S. Dodge, Is Torture an “Official” Act—Reflections on Jones v. United Kingdom (Jan. 15, 2014, 1:46 am).

She is an Adviser on the ALI’s Restatement (Fourth) of Foreign Relations Law of the United States and co-author of International Law Frameworks (4th ed., forthcoming 2016).

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