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Published online by Cambridge University Press: 20 January 2017
Of all the issues facing the International Law Commission (ILC) in its work on the topic of “Immunity of State Officials from Foreign Criminal Jurisdiction,” how to define “act performed in an official capacity” is certainly one of the most difficult and important. If serious international crimes, like torture, are considered acts performed in an official capacity, then foreign officials responsible for such crimes may (unless an exception applies) be immune from criminal jurisdiction in other states for such acts even after they leave office.
1 The ILC has limited its work to “the immunity of State officials from the criminal jurisdiction of another State.” International Law Commission, Analytical Guide to the Work of the International Law Commission, Immunity of State officials from foreign criminal jurisdiction. The scope of this essay is similarly limited and the essay will not address the immunity of state officials from the jurisdiction of the courts of their own States or from the jurisdiction of international tribunals.
2 Int’l Law Comm’n, Fourth report on the immunity of State officials from foreign criminal jurisdiction, U.N. Doc. A/Cn.4/686 (2015) [hereinafter “Fourth report”].
3 Id. at paras. 111-17. Compare 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. 24 (2010) (“The Special Rapporteur considers it right to use the criterion of the attribution to the State of the conduct of an official in order to determine whether the official has immunity ratione materiae and the scope of such immunity.”).
4 Fourth report, supra note 2, at paras. 99, 101.
5 Id. at paras. 125-26.
6 Int’l Law Comm’n, Immunity of State officials from foreign criminal jurisdiction, Text of draft articles 1, 3 and 4 provisionally adopted by the Drafting Committee at the sixty-fifth session of the International Law Commission, UN Doc. A/CN.4/L.814 (2013).
7 Id.; see also Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Judgment, 2002 ICJ Rep. 3, 55, 61 (Feb. 14).
8 Int’l Law Comm’n, Immunity of State officials from foreign criminal jurisdiction, Text of draft articles 1, 3 and 4 provisionally adopted by the Drafting Committee at the sixty-fifth session of the International Law Commission, UN Doc. A/CN.4/L.814 (2013).
9 Id.
10 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 26, UN Doc. A/CN.4/Ser.A/2001/Add. 1 [hereinafter “Draft Articles on State Responsibility”].
11 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 1(1), Dec. 10, 1984, 1465 Unts 85.
12 See Fourth report, supra note 2, at paras. 111-17.
13 Draft Articles on State Responsibility, supra note 10, art. 58.
14 Id. art. 58, commentary para. 3.
15 Fourth report, supra note 2, at paras. 99, 101.
16 Some crimes, like genocide, violate international law even if not committed in an official capacity. See Convention on the Preven tion and Punishment of the Crime of Genocide art. II (defining “genocide”), Dec. 9, 1948, 78 Unts 277; see also Fourth report, supra note 2, at para. 71 (noting that the Genocide Convention “does not include the ‘official status’ of the perpetrator as an element of the definition of the crime”).
17 Fourth report, supra note 2, at para. 124.
18 Id. at para. 125.
19 Id. at paras. 111-17.
20 Id. at para. 126.
21 Id.
22 On the significance of baselines in the context of immunity, see Keitner, Chimène I., Foreign Official Immunity and the “Baseline” Problem, 80 Fordham L. Rev. 605 (2011)Google Scholar.
23 Arrest Warrant of 11 April 2000 (Dem Rep. Congo v. Belg.), Judgment, 2002 ICJ Rep. 3, 71 (Feb. 14) (joint separate opinion of Higgins, J., Kooijmans, J., and Buergenthal, J.) (“[I]mmunity . . . is an exception to a jurisdiction which normally can be exercised and it can only be invoked when the latter exists. It represents an interest of its own that must always be balanced, however, against the interest of that norm to which it is an exception.”); see also Higgins, Rosalyn, Certain Unresolved Aspects of the Law of State Immunity, 29 Neth. Int’l L. Rev. 265, 271 (1982)CrossRefGoogle Scholar (“It is sovereign immunity which is the exception to jurisdiction and not jurisdiction which is the exception to a basic rule of immunity. An exception to the normal rules of jurisdiction should only be granted when international law requires . . . .”).
24 The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 136 (1812).
25 Fourth report, supra note 2, at para. 112.
26 Id. at para. 57.
27 Id. at para. 121.
28 Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Judgment, 2002 ICJ Rep. 3, 51-55 (Feb. 14).
29 Id.. at 58. The ICJ’s analysis of state immunity in the Jurisdictional Immunities Case followed a similar pattern. Having concluded that the acts of German armed forces were acta jure imperii generally entitled to state immunity, see Jurisdictional Immunities of the State (Ger. v. It.), Judgment, 2012 ICJ Rep. 99, paras. 60-61 (Feb. 3), the court turned to exceptions and found no general and consistent state practice supporting an exception for violations of jus cogens norms. See Id. at para. 96.
30 “Legitimate” is a term of art, intended to exclude only serious international crimes—i.e. those crimes over which other nations may exercise universal jurisdiction to prescribe under international law—as the commentaries to the draft articles would need to explain. Conduct-based immunity would still extend to other crimes over which other nations may not exercise universal jurisdiction, giving appropriate content to this form of foreign official immunity.
31 See Fourth report, supra note 2, at para. 118.
32 Arrest Warrant of 11 April 2000 (Dem Rep. Congo v. Belg.), Judgment, 2002 ICJ Rep. 3, 85 (Feb. 14) (joint separate opinion of Higgins, J., Kooijmans, J., and Buergenthal, J.) 85 (Feb. 14) (citing Andrea Bianchi, Denying State Immunity to Violators of Human Rights, 46 Austrian J. Pub. & Int’l L. 227, 227-228 (1994)); see also Attorney General of Israel v. Eichmann, 36 I.L.R. 277, 309-10 (Israel S. Ct. 1962) (holding that crimes against humanity “in point of international law . . . are completely outside the ‘sovereign’ jurisdiction of the State that ordered or ratified their commission, and therefore those who participated in such acts must personally account for them and cannot shelter behind the official character of their task or mission”); 1 Trial of the Major War Criminals Before the International Military Tribunal 223 (1947) (“The principle of international law, which under certain circumstances, protects the representatives of a state, cannot be applied to acts which are condemned as criminal by international law.”).
33 Fourth report, supra note 2, at para. 99.
34 Draft Articles on State Responsibility, supra note 10, art. 7.
35 See, e.g., Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 1(1), Dec. 10, 1984, 1465 Unts 85.
36 Cf. Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Judgment, 2002 ICJ Rep. 3, 61 (Feb. 14) (noting that Foreign Ministers “enjoy no criminal immunity under international law in their own countries” and “may be subject to criminal proceedings before certain international criminal courts”).
37 See id. at 78 (joint separate opinion of Higgins, J., Kooijmans, J., and Buergenthal, J.) (“The chance that a Minister for Foreign Affairs will be tried in his own country . . . is not high as long as there has been no change of power, whereas the existence of a competent international criminal court to initiate criminal proceedings is rare . . . .”).
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