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The international law commission’s recent work on exceptions to immunity: Charting the course for a brave new world in international law?

Published online by Cambridge University Press:  01 March 2019

Dire Tladi*
Affiliation:
University of Pretoria, Law Faculty, Institute of Comparative and International Law in Africa, Hatfield Campus, Hatfield, 0028 Pretoria, South Africa

Abstract

In the summer of 2017, the International Law Commission adopted a draft article on exceptions to immunity. The Draft Article adopted provides that immunity ratione materiae does not apply with respect to certain international crimes, namely crimes against humanity, the crime of genocide, war crimes, the crime of apartheid, torture, and enforced disappearances. These exceptions do not apply to immunity ratione personae. The Draft Article was adopted after a vote and was severely criticized by some members of the Commission. It has also received mixed reaction from states, with some supporting its content while others have opposed it. In the aftermath of the adoption of the Draft Article, there has also been academic commentary, some of which has been critical. The (main) criticism levelled against the Draft Article is that it does not represent existing law and has no basis in the practice of states. This article seeks to evaluate the criticism by considering whether there is any state practice in support of the Draft Article proposed by the Commission.

Type
ORIGINAL ARTICLE
Copyright
© Foundation of the Leiden Journal of International Law 2018 

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Footnotes

Professor of International Law, Department of Public Law and Fellow in the Institute of Comparative and International Law in Africa, University of Pretoria. Member of the UN International Law Commission and its Special Rapporteur on the topic Peremptory Norms of General International Law (Jus Cogens). Member of the Institut de Droit International. I am grateful to the helpful comments of the peer-reviewers. The views expressed in this article are a personal reflection, attributable only to the author.

References

1 See for academic discussions Foakes, J., The Position of Heads of State and Senior Officials in International Law (2014)Google Scholar; van Alebeek, R., The Immunity of States and their Officials in International Criminal Law and International Human Rights Law (2008)Google Scholar; Cassese, A., ‘When may Senior State Officials be Tried for International Crimes? Some Comments on the Congo v Belgium Case’, (2002), 13 EJIL 853CrossRefGoogle Scholar; Akande, D. and Shah, S., ‘Immunities of State Officials, International Crimes and Foreign Domestic Courts’, (2010) 21 European Journal of International Law 815CrossRefGoogle Scholar; du Plessis, M. and Tladi, D., ‘International Court Must Clear Up Vexed Issue of Bashir’s Immunity’, Business Day, 24 August 2017, available at www.businesslive.co.za/bd/opinion/2017-08-24-international-court-must-clear-up-vexed-issue-of-bashirs-immunity/Google Scholar; Tladi, D., ‘Of Heroes and Villains, Angels and Demons: The ICC AU Tension Revisited’, (2017) 60 German Yearbook of International Law (forthcoming)Google Scholar.

2 See for discussion Tladi, D., ‘Immunity in the Era of “Criminalisation”: The African Union, the ICC and International Law’, (2015) 58 Japanese Yearbook of International Law 17, at 17–20Google Scholar.

3 See, e.g., du Plessis, M., ‘The Omar Al-Bashir Case: Exploring Efforts to Resolve the Tension between the African Union and the International Criminal Court’, in Maluwa, T., du Plessis, M. and Tladi, D. (eds.), The Pursuit of a Brave New World in International Law: Essays in Honour of John Dugard (2017), at 431–67Google Scholar.

4 This nostalgic account of the brave new world is inspired by Dugard, J., who speaks of the ‘enthusiasm to create a brave new world’ in ‘which the community of personkind is governed by the Rule of Law’ and in which ‘[t]he energy of personkind is addressed towards resolving poverty and inequality’, in ‘The Future of International Law: A Human Rights Perspective – with Some Comments on the Leiden School of International Law’, (2007) 20 LJIL 729, at 731Google Scholar.

5 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment of 14 February 2002, [2002] ICJ Rep. 3, paras. 60–1.

6 See, for example, the following statements made by members of the UN International Law Commission during the debate on immunities in 2017: H. Huang, ILC Summary Record of the 3364th Meeting, UN Doc. A/CN.4/SR.3364 (2017), at 9; G. Nolte, ILC Summary Record of the 3365th Meeting, UN Doc. A/CN.4/SR.3365 (2017), at 3.

7 Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment of 3 February 2012, [2012] ICJ Rep. 99, para. 56.

8 See, on the distinction between immunity ratione materiae and immunity ratione personae, R. Kolodkin, ‘Second Report on Immunity of State Officials from Foreign Criminal Jurisdiction, by Mr. Roman Anatolevich Kolodkin, Special Rapporteur’, UN Doc. A/CN.4/631 (2010), especially paras. 21–37; C. Hernández, ‘Second Report on Immunity of State Officials from Foreign Criminal Jurisdiction, By Concepción Escobar Hernández, Special Rapporteur’, UN Doc. A/CN.4/661 (2013), paras. 47–53.

9 See Commentary (3) to Conclusion 13, ILC Draft Conclusions on the Identification of Customary International Law, Report of the International Law Commission on the Work of its Sixty-Eighth Session, supra note 122, at 109 (‘The value of such decisions varies greatly … depending both on the quality of the reasoning of each decision … and on the reception of the decision by States by other courts …’).

10 Draft Art. 7(1), ILC Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction (provisionally adopted by the Commission), Report of the International Law Commission on the Work of its Sixty-Ninth Session, UN Doc. A/72/10 (2017), at 177.

11 An ‘indicative vote’ is a vote by a show of hands where the majority view is accepted as consensus decision.

12 See Report of the International Law Commission on the Work of its Sixty-Ninth Session, supra note 10, at 164–5, paras. 74–5.

13 See ibid., for the members who voted in favour: C. Argüello Gómez; Y. Cissé; C. Escobar Hernandez; P. Galvão Teles; J. Gómez-Robledo; H. Hassouna; M. Hmoud; C. Jalloh; M. Lehto; S. Murase; H. Nguyen; N. Oral; H. Ouazzani Chahdi; K. Park; C. Peter; A. Reinisch; J. Ruda Santaloria; G. Saboia; D. Tladi; E. Valencia-Ospina; and M. Vasquez-Bermudez.

14 See ibid., supra note 12, for the members who voted against: H. Huang; R. Kolodkin; A. Laraba; S. Murphy; G. Nolte; E. Petrič; A. Rajput; and M. Wood.

15 See ibid., for the member who abstained: P. Sturma.

16 See Bradley, C.A., ‘Introduction to the Symposium on the Present and Future of Foreign Official Immunity’, (2018) 112 AJIL Unbound 1, at 1–3CrossRefGoogle Scholar.

17 Art. 1, Statute of the International Law Commission, UN Doc. A/RES/174(II) (1947), at 105.

18 Ibid., para. 15 (emphasis added).

20 Although Art. 15 of the ILC Statute also refers to cases ‘which have not been regulated by international law’, supra note 17, at 107, this is not applicable to the present topic since immunity, including exceptions thereto, is regulated by international law.

21 See, for discussion the contrast between the Commission’s approach in its Draft Articles on the Protection of Persons in the Event of Disasters and the Draft Articles on the Expulsion of Aliens, Tladi, D., ‘The International Law Commission’s Draft Articles on the Protection of Persons in the Event of Disasters: Codification, Progressive Development or Creation of Law from Thin Air?’, (2017) 16 Chinese Journal of International Law 425, at 426CrossRefGoogle Scholar (‘The difference in approaches appears to be based, at least in part, on the view of the ILC (or at least some of its members) that the set of Draft Articles on the Expulsion of Aliens does not reflect international law as it currently stands, while the Draft Articles on the Protection of Persons does reflect international law as it stands. The general commentary to the Draft Articles on the Expulsion of Aliens, for example, states that the “entire subject area does not have a foundation in customary international law or in the provisions of international conventions of a universal nature … ” and that the Draft Articles “involve both the codification and progressive development” of the rules of international law. The notion that the Draft Articles on the Expulsion of Aliens amount to … progressive development is ubiquitous. In contrast with the Draft Articles on the Expulsion of Aliens, the commentary to Draft Articles on the Protection of Persons in the Event of Disasters refers to progressive development only in the context of the preambular paragraph recalling the language of Article 13 …’).

22 UN, The Work of the International Law Commission (2012), vol. I., at 47.

23 See for the scope Draft Art. 1, ILC Draft Articles on Immunity of State Officials from Foreign Criminal Jurisdiction, supra note 10, at 51. For the commentary to that provision see Report of the International Law Commission on the Work of its Sixty-Fifth Session, UN Doc. A/68/10 (2013), at 52–8.

24 ILC Fifth Report on Immunity of State Officials from Foreign Criminal Jurisdiction, by Concepción Escobar Hernández, Special Rapporteur (hereinafter ‘Fifth Report on Immunities’), UN Doc. A/CN.4/701 (2016).

25 1948 Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277.

26 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85.

27 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid, 1015 UNTS 243.

28 2006 International Convention for the Protection of All Persons from Enforced Disappearance, UN Doc. A/RES/61/177.

29 See Fifth Report on Immunities, supra note 24, paras. 32 ff.

30 See Fifth Report on Immunities, supra note 24, para. 33. Art. IV of the Convention on the Prevention and Punishment of the Crime of Genocide, supra note 25, provides that persons ‘committing genocide or any other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals’. Art. III of the International Convention on the Suppression and Punishment of the Crime of Apartheid, supra note 27, provides that ‘criminal responsibility shall apply, irrespective of the motive involved, to individuals, members of organisations and institutions and representatives of the State, whether residing in the territory of the State in which the acts are perpetrated or in some other State’.

31 See Fifth Report on Immunities, supra note 24, para. 33.

32 Ibid., para. 44.

33 See ibid., the legislation identified by the Report as potentially relevant to the question of immunities include the United States’ Foreign Sovereign Immunities Act of 1976; the United Kingdom’s State Immunity Act of 1978; Singapore’s State Immunity of 1979; Pakistan’s State Immunity Ordinance of 1981; South Africa’s Foreign States Immunities Act of 1981; Australia’s Foreign States Immunities Act of 1985; Canada’s State Immunity Act of 1985; Argentina’s Jurisdictional Immunity of Foreign States in Argentine Courts Act of 1995; Japan’s Civil Jurisdiction with respect to a Foreign State Act of 2009; and Spain’s Privileges and Immunities of Foreign States, International Organisations with Headquarters or Offices in Spain Organic Act of 2015.

34 Ibid., paras. 47–53. See, e.g., Section 1605A of the United States’ Foreign Sovereign Immunities Act of 1976 which provides: ‘A foreign State shall not be immune from the jurisdiction of courts of the United States or of the States in any case not otherwise covered by this chapter in which money damages are sought against a foreign State for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if such act or provision of material support or resources is engaged in by an official, employee, or agent of such foreign State while acting within the scope of his or her office, employment or agency.’; the Spanish Organic Act, similarly, establishes an exception to immunity ratione materiae in respect of the ‘crimes of genocide, forced disappearance, war crimes and crimes against humanity’.

35 With respect to immunity ratione personae, the Report refers to Dutch and Belgian legislation, which explicitly recognize immunity ratione personae and provide no exceptions from it. See Fifth Report on Immunities, supra note 24, paras. 54–5.

36 Ibid., para. 58.

37 See ibid., para. 59. According to the Report, states using this approach include Canada; France; Germany; Kenya; New Zealand; Norway; Switzerland; and Uganda.

39 Ibid., according to the Report, this category of countries includes Argentina, Australia, Austria, and Liechtenstein.

40 With regards to immunity ratione persone, the Fifth Report on Immunities concludes that that there are no exceptions to immunity ratione personae. See ibid., para. 121.

41 Ibid., para. 114.

42 Ibid., referring to Regina. v. Bartle and the Commissioner of Metropolis and Others Ex Parte Pinochet, Judgment of the UK House of Lords, [1999] 2 WLR 827, 24 March 1999; Prosecutor-General of the Supreme Court v. Desiré Bouterse, Judgment of the Supreme Court of the Netherlands, LJN AB1471, 18 September 2001; H.S.A. et al, v. V.S.A. et al., (Decision Related to the Indictment of Ariel Sharon, Amos Yaron and Others), Court of Cassation of Belgium, P.02.1139.F, 12 February 2003; A v. Public Ministry of the Confederation, B and C, Judgment of Federal Criminal Court of Switzerland, BB.2011.140, 25 July 2012; and Attorney General v. Adolf Eichmann, Judgment of the Supreme Court of Israel, Criminal Appeal 336/61, 29 May 1969.

43 Ibid., paras. 114–21. These include the famous Samantar v. Yousuf, Judgment of the US Supreme Court, 560 U.S. 305, 1 June 2010; and Letelier v. Chile, Judgment of the US District Court, 748 F.2d 790 (2d Cir. 1984), 11 March 1980.

44 Arrest Warrant case, supra note 5. See for discussion Fifth Report on Immunities, supra note 24, paras. 61–70.

45 Jurisdictional Immunities of the State case, supra note 7. For discussion see Fifth Report on Immunities, supra note 24, paras. 73–86.

46 Case Concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment of 4 June 2008, [2008] ICJ Rep. 177. For discussion see Fifth Report on Immunities, supra note 24, para. 71.

47 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment of 20 July 2012, [2012] ICJ Rep. 422. For discussion see Fifth Report on Immunities, supra note 24, para. 72.

48 Fifth Report on Immunities, supra note 24, paras. 87–95. The Report includes in its analysis Al-Adsani v. United Kingdom, Merits, Judgment of 21 November 2001, ECHR 2001-XI; McElhinney v. Ireland, Merits, Judgment of 21 November 2001, ECHR 2001-XI; Kalogeropoulou and Others v. Greece and Germany, Decision of 12 December 2002, ECHR 2002-X; and Jones and Others v. United Kingdom, Judgment of 2 June 2014, ECHR 2014-I.

49 Fifth Report on Immunities, supra note 24, para. 248.

50 Ibid., para. 244.

52 See statement by Tladi, ILC Summary Record of the 3361st Meeting, UN Doc. A/CN.4/SR.3361 (2017), at 6, stating that while paragraph 3 was drafted as a ‘without prejudice’, it was ‘wholly prejudicial. Why should there be a “without prejudice” clause in draft article 7(3)? If there was going to be a “without prejudice” clause, it should be drafted to apply to the draft articles as a whole, not to just one provision.’ Cf. Galvão Teles, ILC Provisional Summary Record of the 3361st Meeting, UN Doc. A/CN.4/SR.3361 (2017), at 10 (‘She supported the important “without prejudice” clause in paragraph; perhaps, as Mr Tladi had proposed, the “without prejudice” clause should be applied to the whole set of draft articles.’). See, for a contrary position, statement by Jalloh, ILC Summary Record of the 3362nd Meeting, UN Doc. A/CN.4/SR.3362 (2017), at 14, who stated that he did not share the concern that the ‘provisions of paragraph 3 were prejudicial to ongoing judicial proceedings …’. See for an exchange between Jalloh and I, in the context of a mini-debate, ILC Summary Record of the 3363rd Meeting, UN Doc. A/CN.4/SR.3363 (2017), at 3.

53 See generally statement by Tladi, ILC Summary Record of the 3361st Meeting, supra note 52; statement of Rajput, ILC Summary Record of the 3363rd Meeting, supra note 52, at 7; statement of Ruda Santaloria, ILC Summary Record of the 3364th Meeting, UN Doc. A/CN.4/SR.3364 (2017), at 13 (‘it was important to distinguish between State immunity stricto sensu in situations involving the bringing of civil actions against a State before the courts of another State and the immunity of State officials from foreign criminal jurisdiction’); and Huang, ILC Summary Record of the 3364th Meeting, UN Doc. A/CN.4/SR.3364 (2017), at 11 (‘there was some confusion over basic concepts, such as international and domestic crimes, criminal and civil proceedings … as well as State immunity, the immunity of officials and diplomatic immunity’). Although not questioning the reliance on Art. 12 of the UN Jurisdictional Immunities Convention, Galvão Teles, ILC Summary Record of the 3361st Meeting, supra note 52, at 9, also noted that that Convention applied to a different context (‘The proposal to include [the territorial exception] on the basis of the [UN Jurisdictional Immunities Convention] was an interesting one … but … a more restrictive formulation might be appropriate in the context of immunity of State officials as opposed to immunity of States.’).

54 Oral, ILC Summary Record of the 3364th Meeting, supra note 53, at 4.

55 See Fifth Report on Immunities, supra note 24, paras. 87–95 referring to Al-Adsani v. United Kingdom, supra note 48; and Jones v. United Kingdom, supra note 48.

56 See, e.g., Murphy, ILC Summary Record of the 3362nd Meeting, supra note 52, at 5.

57 Ibid. (‘Moreover, the report incorrectly asserted that national courts had granted immunity in only a “small number of cases” involving alleged serious international crimes. In fact, it was possible to identify many such cases, especially by looking at both criminal and civil cases.’ [emphasis added]).

59 Kolodkin, ILC Summary Record of the 3361st Meeting, supra note 52, at 7.

60 Wood, ILC Summary Record of the 3360th Meeting, UN Doc. A/CN.4/SR.3360 (2017), at 11.

61 Rajput, ILC Summary Record of the 3363rd Meeting, supra note 52, at 7.

62 Murphy, ILC Summary Record of the 3362nd Meeting, supra note 52, at 5.

63 Gómez-Robledo, ILC Summary Record of the 3363rd Meeting, supra note 52, at 3 (‘Though he was aware that the draft articles were not linked in any way to the establishment of an international court, he wondered whether the Commission could ignore the legal developments brought about by the Rome Statute. Those developments were not vague values or mere “fragments”, as Mr Murphy had described them; they constituted positive law, demonstrating that the international community had reached a new consensus on preventing and punishing the most serious international crimes.’).

64 Peter, ILC Summary Record of the 3363rd Meeting, supra note 52, at 10.

65 Murphy, ILC Summary Record of the 3362nd Meeting, supra note 52, at 5.

67 Rajput, ILC Summary Record of the 3363rd Meeting, supra note 52, at 7.

68 Wood, ILC Summary Record of the 3360th Meeting, supra note 60, at 11.

69 See ILC Summary Record of the 3363rd Meeting, supra note 52, at 8.

70 Wood, ILC Summary Record of the 3360th Meeting, supra note 60, at 10.

72 Kolodkin, ILC Summary Record of the 3361st Meeting, supra note 59, at 6 (‘At the end of every speech, Cato the Elder used to say Cathago delenda est – “Carthage must be destroyed”. Slightly modified to become “Immunity must be destroyed”, the phrase that could be used to end and begin not only the fifth report of the Special Rapporteur, but all of them. The fifth report was entirely predicated upon the destruction of immunity, which the Special Rapporteur used as justification for limitations or exceptions to immunity … [H]e noted the skill with which the Special Rapporteur challenged all, or nearly all arguments in favour of immunity, including those contained in the rulings of the International Court of Justice … [the Report was] a strong case against immunity ratione materiae, cleverly constructed by a Grand Master of the law’). See also Laraba, ILC Summary Record of the 3363rd Meeting, supra note 52, at 9 (‘Special Rapporteur was to be commended on her efforts to produce an objective, impartial and balanced report … It was not certain, however, that she had achieved this objective.’).

73 Huang, ILC Summary Record of the 3364th Meeting, supra note 53, at 9. See also Nolte, ILC Summary Record of the 3365th Meeting, UN Doc. A/CN.4/SR.3365 (2017), at 3 (‘the basic principle of international law that safeguarded sustainable international cooperation was the sovereign equality of States … A perception of bias could, however, easily occur if the courts of one State adjudicated claims involving official acts by another State …’).

74 Huang, ILC Summary Record of the 3364th Meeting, supra note 53, at 9.

75 Jalloh, ILC Summary Record of the 3362nd Meeting, supra note 52, at 11. See also Oral, ILC Summary Record of the 3364th Meeting, supra note 53, at 3.

76 Galvão Teles, ILC Summary Record of the 3361st Meeting, supra note 52, at 9. See also Hassouna, ILC Summary Record of the 3361st Meeting, supra note 52, at 11; Valencia-Ospina, ILC Summary Record of the 3361st Meeting, supra note 52, at 15; Vásquez-Bermúdez, ILC Summary Record of the 3362nd Meeting, supra note 52, at 4; and Lehto, ILC Summary Record of the 3362nd Meeting, supra note 52, at 10.

77 Park, ILC Summary Record of the 3360th Meeting, supra note 60, at 8.

78 Ouazzani Chahdi, ILC Summary Record of the 3364th Meeting, supra note 53, at 16 (‘With regard to draft article 7, like other Commission members, he would like to know what criteria the Special Rapporteur had used as a basis for the list of international crimes that she proposed.’); and Valencia-Ospina, ILC Summary Record of the 3361st Meeting, supra note 52, at 14 (‘The conclusive list of crimes in respect of which immunity did not apply … was a matter of deep concern … If the Commission was to decide to include such a list, the choice of what to include and what to exclude must be made with the greatest possible care.’). See also Oral, ILC Summary Record of the 3364th Meeting, supra note 53, at 4, wondering ‘why other serious international crimes had been omitted’.

79 Nguyen, ILC Summary Record of the 3360th Meeting, supra note 60, at 14; Ruda Santaloria, ILC Summary Record of the 3364th Meeting, supra note 53, at 14; Ouazzani Chahdi, ILC Summary Record of the 3364th Meeting, supra note 53, at 16.

80 ILC Summary Record of the 3361st Meeting, supra note 52, Valencia-Ospina, at 14; Nguyen, at 14; Tladi, at 6; Hassouna, at 11; Jalloh, ILC Summary Record of the 3362nd Meeting, supra note 52, at 14; Ouazzani Chahdi, ILC Summary Record of the 3364th Meeting, supra note 53, at 16.

81 See, e.g., Tladi, ILC Summary Record of the 3361st Meeting, supra note 52.

82 Wood, ILC Summary Record of the 3360th Meeting, supra note 60, at 13; Kolodkin, ILC Summary Record of the 3361st Meeting, supra note 52, at 8; Murphy, ILC Summary Record of the 3362nd Meeting, supra note 52, at 7.

83 Murphy, ibid.

84 Tladi, ILC Summary Record of the 3362nd Meeting, supra note 52, at 7.

85 See ILC Summary Record of the 3378th Meeting, UN Doc. A/CN.4/SR.3378 (2017), Kolodkin, at 9 (‘… draft article 7 was constructed on quasi-legal theoretical premises, neither having a basis in or reflecting existing international law, nor did it reflect any real, discernible trend in State practice or international jurisprudence …’); Murphy, at 9 (‘The essential problem was that the exceptions identified in the draft article were not grounded in existing international law, nor could it be said that there was a trend towards such an exception. The Commission was proceeding with draft article 7 even though there was only a handful of national laws and cases and no global treaties or other forms of State practice supporting such exceptions …’); Wood, at 10 (‘… the text did not reflect existing international law or a trend …’); and Rajput, at 12 (‘It was clear from the statements in plenary that there was neither support in State practice not any trend [in support of the text], since there was an inconsequentially small number of cases from domestic jurisdiction and no examples of domestic legislation or treaties …’).

86 Ibid., Kolodkin, at 9 (‘Of great concern was the fact that the draft article and the way in which the Commission intended to present it to the General Assembly invited unilateral actions which were contrary to international law and had a very slim potential of contributing to the fight against impunity and the protection of human rights and might be genuinely detrimental to inter-State relations.’; Wood, at 10 (‘the text … was not desirable as new law and should not be proposed to States …’); Huang, at 11 (‘Draft article 7 was a critical article and, if not handled properly, risked undermining the draft articles as a whole, to the detriment of inter-State relations …’).

87 Huang, ibid., at 10. See ibid., at 12, for responses to this explanation of vote by Gómez-Robledo and Ruda Santaloria.

88 Ibid., Tladi, at 13 ff. (‘There was no legal reason whatsoever that other crimes had been included, yet aggression, a crime that had featured in the work of the Commission since 1950, had been excluded. If the criteria by which crimes had been included concerned their jus cogens nature, there was no question that the crime of aggression ought to have been included … If the criterion by which crimes were included was gravity, there was again no question that the crime of aggression ought to have been included … There was no reason that the crime of aggression had been singled out for exclusion. The only reason that he could see … was that it was a crime most likely to be committed by the powerful. The Commission had just taken the decision that the most powerful ought to be beyond the reach of justice.’); Hmoud, at 14 (‘would have preferred aggression to be included … Although it could be an act of State, it was a criminal act committed by an individual. In that sense it was different from other crimes of international concern committed by individuals when exercising governmental authority such as crimes against humanity or war crimes.’); Jalloh, at 14 ff. (‘not convinced by the explanations given by the Special Rapporteur in her fifth report on immunity as to why she wished to exclude the crime of aggression. The other core Rome Statute crimes, namely genocide, crimes against humanity and war crimes, had been included in the list of exceptions contained in draft article 7, but, arguably the most serious crime known to international law, the crime of aggression had been excluded …’); Murase, at 14 (‘wished to express dissatisfaction over the fact that the crime of aggression had not been included in draft article 7’); Hassouna, at 15 (‘would have strongly supported the inclusion of the crime of aggression …’); Ouazzani Chahdi, at 15 (‘voted in favour draft article 7 but was disappointed at the politicised climate surrounding the discussion and deplored the fact that the crimes of aggression and corruption had not been included in the list of exceptions to immunity.’); Park, at 15 (‘believed the crime of aggression should have been included in the list of exception.’); Nguyen, at 16 (‘wished to express his deep regret that the crime of aggression had not been included in the list of exceptions to immunity, even though that crime had more serious and negative consequences for many countries than other crimes, such as the crime of apartheid.’).

89 Cisse, ibid., at 15.

90 See Report of the International Law Commission on the Work of its Sixty-Ninth Session (2017), Topical Summary of the Discussion Held in the Sixth Committee of the General Assembly during its Seventy-Second Session, UN Doc. A/CN.4/713 (2018). See also for a more detailed, but informal, analytical summary prepared by Nolte’s assistants J. Barkholdt and J. Kulaga, ‘Analytical Presentation of the Comments and Observations by States on the Report of the International Law Commission on its Sixty-Ninth Session (2017) regarding the topic Immunity of State Officials from Foreign Criminal Jurisdiction, UNGA, 6th Committee, 2017’ (forthcoming).

91 Barkholdt and Kulaga, ibid., at 1.

92 Ibid., at 10.

93 See, e.g., Murphy, S.D., ‘Immunity Ratione Materiae of State Officials from Foreign Criminal Jurisdiction: Where is the State Practice in Support of Exceptions?’, (2018) 112 AJIL Unbound 4CrossRefGoogle Scholar; Shen, Q., ‘Methodological Flaws in the ILC’s Study on Exceptions to Immunity Ratione Materiae of State Officials from Foreign Criminal Jurisdiction’, (2018) 112 AJIL Unbound 9CrossRefGoogle Scholar; Webb, P., ‘How Far Does Systemic Approach to Immunities Take Us?’, (2018) 112 AJIL Unbound 16CrossRefGoogle Scholar; Forteau, M., ‘Immunities and International Crimes before the ILC: Looking for Innovative Solutions’, (2018) 112 AJIL Unbound 22CrossRefGoogle Scholar; van Alebeek, R., ‘The “International Crime” Exception to the ILC Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction: Two Steps Back?’, (2018) 112 AJIL Unbound 27CrossRefGoogle Scholar.

94 Arrest Warrant case, supra note 5. A notable exception in this regard appears to be the South African Supreme Court of Appeal judgment in Minister of Justice and Constitutional Development Others v. Southern African Litigation Centre and Others, Judgment of the South African Supreme Court of Appeal, 2016 (4) BCLR 487 (SCA), 15 March 2016, although even that judgment is a little more complicated. The judgment recognizes that under customary international law there are no exceptions to immunity ratione personae, but then concludes that the South African legislature intended to depart from the rules of customary international law by establishing an exception in relation to the Rome Statute crimes. See for discussion Tladi, D., ‘Interpretation and International Law in South African Courts: The Supreme Court of Appeal and the Al Bashir Saga’, (2016) 16 African Human Rights Law Journal 16, at 310CrossRefGoogle Scholar.

95 See, for example, Akande and Shah, supra note 1, at 819–20, who note that the absolute nature of immunity ratione personae is ‘uncontroversial and has been widely applied by national courts … [and has been] upheld in State practice’. See also P. d’Argent, ‘Immunity of State Officials and Obligation to Extradite’, (2013) Cashier du Cedie Working Papers No. 2013/04, at 5–6.

96 In the AJIL Unbound Symposium, Murphy, supra note 93, at 5, makes an interesting and novel argument suggesting that the Arrest Warrant case offers support for the non-existence of exception to immunity ratione materiae (‘Further [the Fifth Report] cites to just one national court case and no international court decision supporting such an exception. To the contrary, the ICJ in the Arrest Warrant case indicated circumstances where a former foreign minister might be prosecuted for crimes against humanity, but those circumstances did not include prosecution in a foreign criminal jurisdiction for an official act undertaken while in office.’). However, the ICJ case concerned immunity ratione personae and not immunity ratione materiae. It is true that, at the time, the official concerned was no longer Foreign Minister, but the case concerned the circulation of the arrest warrant at the time he was Foreign Minister. But more importantly, there is nothing in the paragraph to which Murphy refers (para. 61 of the Arrest Warrant case), that suggests the Court took the four circumstances it provides as exhaustive. For example, the Court does not mention the possibility that a former Foreign Minister may be prosecuted in a foreign domestic court on the strength of a Chapter VII authorisation of the UN Security Council.

97 See, e.g., Arrest Warrant case, supra note 5, Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal, para. 85. See for discussion, Memorandum of the Secretariat on Immunity of State Officials from Foreign Criminal Jurisdiction (hereinafter ‘Memorandum of the Secretariat’), UN Doc. A/CN.4/596 (2008), paras. 191–3.

98 Caban, P., ‘Immunity of State from Foreign Criminal Jurisdiction -Exceptions to Immunity Ratione Materiae’, (2016) 7 Czech Yearbook of International Law 315Google Scholar.

99 See for an example of decisions based on the law of international criminal tribunals, The Prosecutor v. Omar Hassan Ahmed Al-Bashir, Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmed Al Bashir, ICC-02/05-01/09-139, Pre-Trial Chamber I, 12 December 2011; The Prosecutor v. Omar Hassan Ahmed Al-Bashir, Décision Rendue en Application de l’article 87-7 du Statut de Rome concernant le refus de la République du Tchad d’accéder aux demandes de coopération délivrées par la Cour Concernant l’arrestation et la Remise d’Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-140, Pre-Trial Chamber I, 13 December 2001.

100 Principle III, Principles of International Law Recognised in the Charter of Nürnberg Tribunal and in the Judgment of the Tribunal, 1950 YILC, Vol. II, at 375 (‘The fact that a person who committed an act under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law’); Art. 3, The Draft Code of Offences against the Peace and Security of Mankind (1954), 1950 YILC, Vol. II, at 137.

101 See, e.g., Fifth Report on Immunities, supra note 24, paras. 24–30, 44–50.

102 See, e.g., Murphy, ILC Summary Record of the 3362nd Meeting, supra note 52, at 7; Rajput, ILC Summary Record of the 3363rd Meeting, supra note 52, at 7.

103 ILC Third Report on Peremptory Norms of General International Law (Jus Cogens) by Dire Tladi, Special Rapporteur, UN Doc. A/CN.4/714 (2018), paras. 121–32. The analysis that follows is based on this report.

104 The proposal to replace the relevant draft conclusions with a without prejudice was not done for substantive reasons, but rather for procedural and strategic reasons. First, as a procedural reason, the jus cogens topic was intended to address methodological issues and not substantive questions concerning consequences of specific jus cogens norms. Second, as a strategic point, the Special Rapporteur conceded that including a provision on immunity ratione materiae in criminal proceedings would require a provision that there were no exceptions from immunity ratione personae and no exceptions in relation to civil proceedings in connection with jus cogens crimes. Since, these conclusions, which were undeniably lex lata, would have the effect of freezing this rule and preventing the further development of the law in this area. See Tladi, Special Rapporteur, ILC Summary Record of the 3425th Meeting, UN Doc. A/CN.4/SR.3425 (2018), at 12–16.

105 See Commentary (3) to Conclusion 13, ILC Draft Conclusions on the Identification of Customary International Law, Report of the International Law Commission on the Work of its Sixty-Eighth Session, supra note 122, at 109 (‘The value of such decisions varies greatly … depending both on the quality of the reasoning of each decision … and on the reception of the decision by States by other courts …’).

106 See A.P.V. Rogers, ‘War Crimes Trials under the Royal Warrant: British Practice (1945-1949)’, (1990) 39 International and Comparative Law Quarterly 780, especially at 790 ff.

107 See ibid., referring to the Peleus Trial (1945); the Trial against Karl Rauer and Six Others (1946); and the trials of Helmuth von Ruchteschell (1947) and von Manstein (1949).

108 Cassese, supra note 1, at 870 ff.

109 Attorney-General of the Government of Israel v. Eichmann, Judgment of the Supreme Court of Israel, 29 May 1962, English translation in (1968) 36 ILR 277.

110 See for further discussion N.R. Dorman, ‘Aftermath of Nuremburg: The trial of Klaus Barbie’, (1989) 60 University of Colorado Law Review 499.

111 Bouterse case, supra note 42.

112 Guatemala Genocide case, Menchú Tumm and Others v. Two Guatemalan Government Officials and Six Members of the Guatemalan Military, Judgment of the Spanish Constitutional Tribunal, STC 237/2005, 26 September 2005.

113 Scilingo Manzorro (Alolfo Francisco) v. Spain, Judgment of the Supreme Court of Spain, No 798, 1 October 2007.

114 Pinochet case, supra note 42, Lord Brown-Wilkinson, at para. 56; Lord Hope, at para. 196; Lord Millet, at para. 330 ff.; Lord Phillips, at para. 366.

115 Commentary (8) to Draft Art. 7, ILC Draft Articles on the Immunity of State Officials, supra note 10, especially fn. 765.

116 See, e.g., Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) case, supra note 47, para. 99.

117 Prosecutor v. Tihomir Blaškić, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Case No. IT-95-14-AR108 bis, A.Ch., 29 October 1997, para. 41 (emphasis added). Although Murphy, ILC Summary Record of the 3362nd Meeting, supra note 52, at 5, suggested that the case did not concern the right of a state to exercise jurisdiction, it is clear that in that part of the judgement, the Appeals Chamber was concerned with ‘the general rule … namely the right of a state to demand for its organs functional immunity’.

118 Art. 13(2), Institut de Droit International, Immunities from Jurisdiction and Execution of Heads of State and of Government in International Law (2001).

119 Ibid.

120 Gaddafi case, Judgment of the French Court of Cassation, Decision No 64, 13 March 2001, (2001) 125 ILR 490, para. 9 (‘Under international law, regardless of the gravity of the crime denounced, there is no exception to the principle of immunity from jurisdiction for incumbent heads of State in foreign courts.’). See also H.S.A. et al. v. V.S.A. et al., (Decision Related to the Indictment of Ariel Sharon, Amos Yaron and Others), supra note 42, at 599–600.

121 Draft Art. 6(3), ILC Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction, Report of the International Law Commission on the Work of its Sixty-Eighth Session, UN Doc. A/71/10 (2016), at 359.

122 Gaddafi case, supra note 120, para. 9 (emphasis added).

123 Mugabe case, supra note 121.

124 Re Mofaz, Judgment of UK Bow Street Magistrates Court, ILDC 97 (UK 2004), 12 February 2004; Re Bo Xilai, Judgment of UK Bow Street Magistrates Court, ILDC 429 (UK 2005), 8 November 2005.

125 Hissène Habrè, The Opinion of the Court of Appeal of Dakar on the Extradition Request for Hissène Habré, the Court of Appeal of Dakar, Senegal, 25 November 2005.

126 Ibid., para. 6.

127 Ibid., para. 5 (‘Considérant que Hissène Habrén oit alors bénéficier de cette immunité de jurisdiction qui, loin d’être une cause d’exonération de responabilités pénales, revêt simplement un caractère procedural au sens de l’arrêt Yéro Abdoulaye Ndombasi du 14/02/2002 rendu par la Cour Internationale de Justice dans le litige opposant le Royaume de Belgique à la République démocratique de Congo … [‘Considering that Hissène Habré must then benefit from this immunity from jurisdiction, which was not an impunity for criminal responsibility, but merely a procedural characteristic within the meaning of the Yéro Abdoulaye Ndombasi judgment of 14 February 2002 delivered by the International Court of Justice in the dispute between the Kingdom of Belgium and the Democratic Republic of Congo…’]).

128 See Arrest Warrant case, supra note 5, para. 60 (‘Thirdly, after the person ceases to hold [the relevant office], he or she will longer enjoy all of the immunities accorded by international law …’).

129 See Commentary (3) to Conclusion 13, ILC Draft Conclusions on the Identification of Customary International Law, Report of the International Law Commission on the Work of its Sixty-Eighth Session, supra note 122, at 109 (‘The value of such decisions varies greatly … depending both on the quality of the reasoning of each decision … and on the reception of the decision by States by other courts …’).

130 See, for example, Al-Adsani v. United Kingdom, supra note 48, para. 61. See also Samantar v. Yousuf, supra note 43, at 20 (‘A number of decisions from foreign national courts have reflected a willingness to deny official-act immunity in the criminal context for alleged jus cogens violations’ while noting that ‘the jus cogens exception appears to be less settled in the civil context’). For a criticism of this position see A. Orakhelashvili, ‘Audience and authority – The merit of jus cogens’, (2015) 46 Netherlands Yearbook of International Law 115, at 139.

131 Jurisdictional Immunities of the State case, supra note 7, at para. 91. See also para. 87.

132 Bassiouni, C., ‘International Crimes: “Jus Cogens” and “Obligatio Erga Omnes’, (1996) 59 Law and Contemporary Practice 63, at 63CrossRefGoogle Scholar; Orakhelshvili, A., ‘State Immunity and International Public Order’, (2002) 45 German Yearbook of International Law 227Google Scholar; Knuchel, S., ‘State Immunity and the Promise of Jus Cogens’, (2010/2011) 9 Northwestern University Journal of Human Rights 14Google Scholar.

133 Bianchi, A., ‘Human Rights and the Magic of Jus Cogens’, (2008) 19 EJIL 491, at 504CrossRefGoogle Scholar.

134 Ibid.

135 Orakhelshvili, supra note 132, at 263.

136 Bassiouni, supra note 132.

137 R. van Alebeek, supra note 1, at 241. See also Bianchi, A., ‘Denying State Immunity to Violators of Human Rights’, (1994) 46 Austrian Journal of Public International Law 195Google Scholar.

138 Buzini, G., ‘The Enduring Validity of Immunity Ratione Materiae: A Reply to Professor Pisillo Mazzechi’, (2015) 17 Questions of International Law 33Google Scholar. See also Caban, supra note 98.

139 Fox, H., The Law of State Immunity (2008), at 525Google Scholar. See also Zimmermann, A., ‘Sovereign Immunity and Violations of International Jus Cogens – Some Critical Remarks’, (1994/1995) 16 Michigan Journal of International Law 433Google Scholar.

140 See Memorandum of the Secretariat, supra note 97.

141 See ibid., para. 188, providing examples such as the decision of the 2007 District Prosecutor of France not to initiate prosecution against Donald Rumsfeld; and the decision of the Dutch authorities not to prosecute Pinochet in 1994.

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