Delegations Urge Expanded 'Foreign Criminal Jurisdiction' Immunity for Broader Range of State Officials

5 November 2012
GA/L/3448

Delegations Urge Expanded 'Foreign Criminal Jurisdiction' Immunity for Broader Range of State Officials

5 November 2012
General Assembly
GA/L/3448
Department of Public Information • News and Media Division • New York

Sixty-seventh General Assembly

Sixth Committee

21st Meeting (AM)

Delegations Urge Expanded ‘Foreign Criminal Jurisdiction’ Immunity

For Broader Range of State Officials

The three categories of high-ranking officials who were traditionally granted immunity from foreign criminal jurisdiction should be expanded to include other senior representatives carrying out essential State functions, Sixth Committee (Legal) delegates said today, as the debate on the International Law Commission’s annual report continued.

During the discussion, many delegates urged that immunity to be offered to senior State officials beyond the “troika” of Heads of State, Heads of Government and Ministers of Foreign Affairs.  Switzerland’s delegate pointed out that Government officials were regularly called upon to travel and should enjoy immunity while in office, as well as some level of residual immunity once they had quit their official functions.

China’s delegate recalled that the recent judgement of the International Court of Justice’s Arrest Warrant Case, Belgium v. Senegal, was supportive of expanding such immunities.  He advocated that the Commission arrive at criteria which national courts could use when deciding to grant immunity.  Although it was not appropriate at this stage for the Commission to set rules regarding immunity, it should provide guidance by reviewing and summarizing relevant practices and rules of customary international law.

Also calling for the Commission to examine existing laws governing immunity, Ireland’s representative said that the Commission should assess propositions involving progressive development of international law, and distinguish between laws of immunity and laws governing jurisdiction.  Noting that Ireland had not enacted legislation relevant to the matter, he said that for cases of official immunity, Irish courts applied the rules of customary international law. 

El Salvador’s representative, emphasizing the transformative nature of the topic, said that the idea of immunity, once founded on dignity and personal respect, was now based more on the functions carried out by such officials.  Any approach taken by the Commission should be balanced to ensure the smooth function of international relations.  

Turning to other topics addressed in today’s debate, South Africa’s delegate called for a focus on the practical aspects of customary international law.  A set of conclusions or propositions with commentaries on the topic would be beneficial.  Concerning the obligation to extradite or prosecute, she noted the complex nature of multilateral treaties that dealt with the topic, and questioned whether the Commission should proceed with its work in that area.

However, Romania’s representative disagreed, urging the Commission to continue its consideration, in particular with the topic’s close relationship with universal jurisdiction.  As for treaties over time and the most-favoured-nation clause, she said that any conclusions, guidelines, recommendations or model clauses should be reflective of international law’s normative framework. 

Also speaking today were representatives of Germany, Peru, Republic of Korea, Belarus, Netherlands, Congo, Portugal, United States and Poland.

The Committee will meet again on Tuesday, 6 November, at 10 a.m. to continue its debate on the International Law Commission’s report.

Background

The Sixth Committee (Legal) met today to continue its annual consideration of the report of the International Law Commission.  For background please see Press Releases GA/L/3446 and GA/L/3447.

Statements on Third Cluster

MARTIN HUTH ( Germany) said that he was open to various outcomes of the consideration of immunity of State officials, including a draft convention, guidelines or framework principles.  However, the starting point must be a thorough analysis of existing State practice and a specifically identified opinio iuris, with the Commission basing its work on lex lata.  The rules of immunity were predominantly rooted in customary international law because they dealt with the politically sensitive area of delimitation and mutual respect for the sovereign power of States, and lex latta represented a fine balance of the sovereign rights of States.  Thus, he questioned if the Special Rapporteur’s work plan should focus, at this point, on abstract considerations of a more theoretical nature.  It was also worth discussing whether a conceptual distinction should be made between immunity from foreign civil jurisdiction and immunity from foreign criminal jurisdiction.

He reiterated his view that immunity did not inevitably lead to impunity, the fight against which, he stressed, was of paramount importance.  States were responsible for exercising their jurisdiction over their own officials and always had the ability to waive immunity.  In cases where those traditional mechanisms did not function, there was the possibility of international criminal jurisdiction.  His country would continue to follow the issue closely, advocating an approach based on relevant past and current practice, and would provide the Commission with Germany’s relevant practice.  In this regard, he encouraged other States to contribute information on their relevant practice to the Commission, as analysis of State practice was absolutely crucial for responding to the many difficult questions asked by the Special Rapporteur in her preliminary report.

GONZALO BONIFAZ ( Peru) noted that, although his delegation had different conclusions than those of the former Special Rapporteur on the topic of immunity of State officials, his reports had been so rigorous and in-depth that they would be a real contribution to future work on the item.  Additionally, the new Special Rapporteur had already made helpful contributions to the topic, particularly through her transitional report.  As for the methodology for considering the topic, the analysis should first identify substantive elements and then proceed to look at the operational aspects of implementation.

He said that the topic should be dealt with separately in the four blocks proposed by the Rapporteur and should be taken up from the perspectives of both lex lata and lex ferenda, immunity ratione personae and materiae, and the regimes of individual responsibility and State responsibility.  Although the troika of those who benefited from such immunity had been correctly identified, the reality of international relations meant that any other officials benefiting from such immunity was dependent on the offices for which they worked, as well as their functions and the regulations of different States.  As for the Committee’s work on the scope and application of universal jurisdiction, that work was directly related to the topic of immunity being discussed and should be examined by the Commission.

MAENG SUJIN ( Republic of Korea) said the harmonization between lex lata and lex ferenda was crucial in addressing the immunity of State officials from foreign criminal jurisdiction.  A deductive approach to that topic would be more effective than an inductive one.  In addition, it would be desirable for the Commission to identify and develop the relevant rules on the basis of State practice, and national and international jurisprudence.  Stressing the difficulty in distinguishing between the beneficiaries of immunity ratione personae and those of ratione materiae, she said the scope of certain other incumbent high-ranking officials as the beneficiaries of immunity ratione personae could make it difficult to determine exactly who are qualified for the immunity, rather than in the case of simply confining the beneficiaries to the “troika”.  On the question of the beneficiaries of immunity ratione personae, clear criteria or guidelines were needed in order to identify other high ranking officials. 

Concerning immunity ratione materiae, she said that because defining an official act was important, various criteria of that definition should be considered.  The relationship between the rules of attribution for State responsibility and the immunity of State officials in determining whether a State official was acting within an official capacity must be considered.  Turning to the scope of exceptions to the immunity of a State official from foreign criminal jurisdiction, she said that identifying current law by collecting and analyzing the relevant State practices and national and international jurisprudence must be a priority.  She also commented on provisional application of treaties, formation and evidence of customary international law and the obligation to extradite or prosecute, among others.

YURY NIKOLAICHIK ( Belarus) said that the topic of immunity of State officials was complex and politically sensitive and should be considered within the context of customary international law.  Therefore, the Special Rapporteur and Commission should distinguish between lex lata and lex ferenda.  The point of departure for examining the topic was functional and depended on the nature of functions carried out by State officials.  Noting that those functions were crucial to international relations, he supported the development of criteria for other officials that might qualify for immunity under ratione personae.  As the Commission considered the immunity of those additional officials, it should be guided by the practice of States, international organizations and judicial bodies, and international treaty law.

On the obligation to extradite or prosecute, he said it could be further examined within the context of treaty law and State practice, as well as the application of universal jurisdiction.  In that regard, the Commission should analyse the subject of universal jurisdiction without waiting for the Sixth Committee’s completion of the topic.  Moving to other topics, he said that, concerning the provisional application of treaties, application of the Vienna Convention of 1969 showed that rules governing treaties were still relevant and did not need a radical revision.  Thus, the Commission should look at flexible approaches that would bring together State practice without changing the Convention.

He then turned to the formation and evidence of customary international law, stating that it was useful to analyse various theories which would lead to better understanding as to how customary rules were established and the sources for determining the existence of such rules.  The Commission should examine the decisions of international judicial bodies and international treaty practice and develop guidelines to establish the practice of jurists in developing rules of customary international law.  Those guidelines would help States and other subjects of international law to be clearer about the scope of their international legal obligations.  Closing with a brief discussion of treaties over time, he said the three existing reports should be brought into one document and made available to all States. 

NIKOLAS STUERCHLER GONZENBACH (Switzerland), referring the Committee to his written statement for matters of a more technical nature, said, when examining the immunity of State officials from foreign criminal jurisdiction, it was important to strike a balance between the fight against impunity and the need to preserve harmonious inter-State relations.  His country had little case law pertaining to other States’ representatives.  However, its Federal Criminal Court had just recently issued a ruling on that matter in July of this year, where it recognized that immunity ratione personae from jurisdiction was not restricted to the triad, but could also cover other high-ranking government officials.  In so doing, it accepted that a certain level of immunity survived beyond the end of official functions.  Also, it determined that certain exceptions to immunity ratione materiae must be allowed.  Residual immunity did not remove potential liability for cases of serious violations of human rights. 

He urged the Commission not to consider the question of immunity of State officials from foreign criminal jurisdiction as a whole, but rather to deal with it by topics in order to move away from the ratione personaeratione materiae discussions, at least at the current stage of deliberations.  The position of State representatives while in office should be discussed first, leaving aside for the time being their position after leaving office.  Further, a certain number of high-ranking officials should, when in office, benefit from a wide immunity from jurisdiction.  The term “high-ranking officials” should not be limited to a Heads of State, Heads of Government and Ministers of Foreign Affairs.  It should equally cover other Government members regularly called upon to travel in the course of carrying out their ministerial obligations.  Those high-ranking officials should, having quit their functions, be able to invoke some level of residual immunity from jurisdiction.

TREVOR REDMOND ( Ireland) said that the topic of immunity of State officials from foreign criminal jurisdiction should remain a priority of the Commission and be considered through a step-by-step approach.  As Ireland had not enacted legislation dealing with that topic, its domestic courts applied the rules of customary international law in the field of State immunity.  To his knowledge, there had only been one occasion on which someone had applied to the court seeking an arrest warrant for a foreign State official. 

He said the topic was procedural in nature and did not absolve an official from the obligation to respect the laws of a foreign State where he or she was present.  An important part of the Commission’s future work would be to clarify the extent to which such immunity might apply to any persons other than Heads of State, and Government and Foreign Ministers.  That work should examine the current state of law relevant to the topic, assess propositions involving its progressive development, and distinguish between the law of immunity and the law governing jurisdiction.

MARCEL VAN DEN BOGAARD ( Netherlands) stated that the Commission should approach its work on the topic of immunity of State officials not in isolation but taking into account what had already been achieved.  A key question was if international crimes were committed by State officials, should national courts of another State play a role in holding to account those foreign State officials, or should those officials enjoy immunity, because otherwise they could not perform their functions as representatives of a foreign State.  Given the diversity of opinion on the subject, he supported the Special Rapporteur in what she called in her report, “an attempt at conceptual and methodological clarification”.

Turning to the subject of formation of customary international law, he commended the Special Rapporteur’s introductory work on what was a complex matter, but one that was very important in the Commission’s agenda.  However, the approach being taken seemed to focus on the role of domestic judges in determining what was or was not customary law.  It was not a given that domestic courts had the ability to refer to customary international law, neither was it correct to assume that Governments necessarily had the possibility to present their views on customary law before domestic courts.  The Commission should give serious consideration to the language used in the opinio iuris on the matter, as well as the role of international organizations in the formation of customary international law.  On other topics, he urged the Commission to continue work on the Obligation to prosecute or extradite, and encouraged a decision of the International Law Commission to include more issues in its consideration of Treaties over time.

ERNEST TCHILOEMBA TCHITEMBO ( Congo) said immunity of State officials from foreign criminal jurisdiction was a rule established in many international instruments.  However, the existence of possible exceptions to such immunity should be investigated and dealt with.  The International Court of Justice’s position on the case related to judicial mutual assistance on criminal matters and the inseparable link between State immunity and State officials was relevant because it established a rule of conduct, which meant many problems in Court, could be resolved.  In regards to former State officials who continued to enjoy immunity ratione materiae, their immunity did not cover acts performed before or after the end of their function.  Immunity ratione materiae depended on the function and was time limited.

He said immunity ratione personae pertained and was linked to the troika, because that was the very incarnation of sovereignty.  It covered acts by officials during their functions.  Extending immunity ratione personae to others would be sensitive and could jeopardize the troika’s official status.  Concerning possible exceptions, there was an overwhelming view in doctrine that immunity ratione personae was absolute, exceptions to which could arise only for crimes under international law. 

He went on to say that he favoured a binding instrument as the outcome document, as the question of immunity had political ramifications and an impact on international relations.  That aspect of immunity was not currently codified in international legal instruments and would fill a legal gap.  Concerning the obligation to extradite or prosecute, he said it was of paramount importance that the Commission set forth general principles and clear rules for a legal regime for that obligation.  Further, it should establish those serious crimes for which there must be extradition, without undermining State determination of crimes that would be covered for such extradition. 

MARÍA DEL PILAR ESCOBAR ( El Salvador) said that, given recent changes regarding the topic of immunity of State officials from foreign criminal jurisdiction, the report of the new Special Rapporteur was intended to describe a transitional state of affairs.  Although that report was preliminary in nature, it contained fundamental aspects that would focus the issue within the context of international law.  She pointed out that the idea of immunity, once based on the dignity and personal respect earned by State officials, had changed, placing greater emphasis on the important roles that such officials played. 

Further, she noted with surprise that during the Committee’s discussions the central issue was the value of immunity or value of combating impunity.  The association of immunity with a value was not appropriate.  The approach to the examination of such immunity should be balanced to ensure the smooth function of international relations.  It was also inappropriate to define a list of crimes for which immunity could be exercised.  Further study on the subject from which relevant criteria could be developed was needed.

Turning to the provisional application of treaties, she expressed support for the examination of treaties as a point of departure.  As for the topic, formation and evidence of customary international law, particular attention should be paid to the legal system of each State.  Concerning the obligation to extradite or prosecute, she said the importance of that obligation was based on the need to avoid impunity for the most serious crimes.  However, it was observed that debates in the Committee did not derive from the obligation’s nature, but from lack of a systematic approach toward specific goals.  Noting the relevance of the International Court of Justice’s recent decision in Belgium v Senegal, she confirmed that the obligation was still likely to be a source of dispute.  The multiplicity of relevant State practice, in that regard, did not mean that there were problems with the application of that obligation, nor enforcement.

LI LINLIN (China) said the Commission should focus its work on reviewing and summing up the existing practices and rules of customary international law concerning immunity of State officials in order to provide clear guidance to all parties, adding that it would be ill-advised to jump to rule-setting.  Further, the Commission’s discussions should be confined to immunity of State officials from criminal jurisdiction of foreign courts, and stay clear of the question of immunity of State officials from international criminal judicial institutions.  On the question of whether there should be exceptions to immunity of State officials, he said immunity as an issue was of the nature of procedure.  Although the international community had established ethnic cleansing and crimes against humanity as international crimes, customary international law neither excluded the immunity of State officials from foreign jurisdiction, nor recognized any exception to that immunity. 

Therefore, he continued, procedural justice embodied in immunity could not be sacrificed for the sake of substantive justice against impunity.  That was an intrinsic requirement for the rule of law.  The immunity of State officials was not necessarily related to the unlawfulness of acts.  The gravity of the crime would not affect its official character.  Also, the immunity of State officials from foreign criminal jurisdiction did not exempt State officials from their substantive responsibilities.  The rules of immunity of State officials neither led to international crimes nor contributed to impunity.  Measures proposed by the International Court of Justice in the Arrest Warrant case, such as prosecution in home country, waiver of immunity prosecution after the end of terms of office, and prosecution by international criminal judicial institutions, could be used to bring concerned officials to justice while upholding rules of immunity.

Concerning immunity ratione personae, he said there was a general consensus in the international community that the troika should be entitled to immunity ratione personae since they needed to perform public functions as State representatives.  For that same reason, it should also be accorded to other senior officials such as Heads of Parliament and Vice Prime Ministers, among others.  That view gained indirect confirmation in the Court’s Arrest Warrant case judgment.  The Commission should go along with that trend and strive to lay down a criterion as a guide to national courts when deciding on a case-by-case basis if a particular official was entitled to immunity ratione personae.

MIGUEL DE SERPA SOARES ( Portugal) said that he did not consider the issue of immunity of State officials to be a question only for the State; there must be a balance between State sovereignty, the rights of individuals and the need to avoid impunity for serious crimes under international law.  Methodology had to be at the service of established objectives based on sociological analysis, and immunity had to take into account the shared international value of human dignity.  The distinction between the scope of ratione personae and ratione materiae was relevant mainly for analytical purposes, but should not be overrated beyond the methodological angle.  In addition, the most serious crimes of international concern should be an exception, and the Commission should continue its work on the matter.  The Commission should also take a value-laden approach following the nature of contemporary international law, as the classical concept of sovereignty and the new legal humanism were not two sides of the same coin. The latter was more valuable.

Turning to the provisional application of treaties, he said that, in regards to the obligation to not defeat the object and purpose of a treaty prior to it entering into force, that both that obligation and the provisional application were related and had the same scope ratione temporis.  Nevertheless, they led to two different legal regimes.  Despite the relevance of the legal situation created by the provisional application, the matter had no place within the topic, but could perhaps fall under formation and evidence of customary international law.  The practice of States was extremely relevant to this topic, and the Commission should adopt a broad approach in order to respect the diversity of solutions represented in the domestic law of different States.  As it was premature to have a decision on the final form of the work, a guide with model clauses would be the best outcome for this topic.

He said, in regards to the formation and evidence of customary international law, that all relevant case law of different courts and tribunals should be appraised critically and not as a final revelation of existing law, as there were reservations to whether there was consistency in judicial pronouncements.  Further, the Commission should focus on the psychological or subjective element of customary international law without any post-modern anxieties about the mysteries of subjectivity.  He called for an emphasis on formation before evidence, as it was through the description of how customary law was formed that one would better be able to set up a methodology, which would allow for identifying current and future norms.  The most useful outcome of the Commission’s work on this issue would be a set of clear conclusions with commentaries.

TODD BUCHWALD ( United States) said that in regards to the immunity of State officials from foreign criminal jurisdiction and the distinction between ratione materiae and ratione personae, the consequences of each, and the criteria for applying ratione personae, that the bulk in his country of relevant practice had involved civil cases.  Although the troika of officials were the only individuals who enjoyed immunity ratione personae in the United States, there had never been a criminal case against any of the three.

Turning to the provisional application of treaties, he said that when States agreed to apply provisions before the treaty had entered into force, those agreements could be more easily terminated than when that treaty had entered into force.  He urged caution in putting forward proposed rules which could create tension with Article 25 of the Vienna Convention.  On the obligation to extradite or prosecute, he said that the United States was party to a number of treaties that contained such an obligation.  State practice had shown that there was no norm of international law that obliged a State to extradite or prosecute; that obligation only existed through treaties between States.  Furthermore, that obligation was not uniform among treaty regimes, which contained many exceptions depending on the State regimes involved.

Speaking about the two remaining topics – treaties over time and the most-favoured-nation clause - he said that, with regard to the first, subsequent agreement and practice with regard to the interpretation of treaties must reflect agreement among, or practice by, parties to the given treaty.  Regarding the second, he expressed support for the Study Group’s decision not to derive new draft articles to revise the 1978 draft articles.  Because most-favoured-nation provisions were dependent upon the specific agreements in which they were located, they resisted a uniform approach.  The Study Group should continue to study and describe current jurisprudence on questions related to the scope of those clauses in the context of dispute resolution. 

WLADYSLAW CZAPLINSKI ( Poland) said that, in regards to subsequent agreements and subsequent practice relating to the interpretation of treaties, the normative content of future guidelines should maintain the balance between the pacta sunt servanda canon and the need for necessary adjustment of treaties as a result of a constantly changing world.  Recognizing that the decisions of national courts constituted an essential part of State practice, a survey of those decisions should be conducted as a matter of priority and its results reflected as soon as possible in the Commission’s forthcoming reports on the subject. 

On the provisional application of treaties, he said he expected the Commission to come up with useful directives and guidelines for States in their application of Article 25 of the Vienna Convention on the Law of Treaties of 1969.  He then addressed the obligation to extradite or prosecute, stating that studies on the topic were needed, particularly in the context of combating impunity for the most serious crimes of international law.  Turning to the immunity of State officials from foreign criminal jurisdiction, he stressed that a balance between rules relating to immunity of State officials and other principles of international law, including human rights and a necessity to punish perpetrators of grave and serious crimes, under international law, should be one of the Commission’s primary objectives. 

He went on to say that, while he recognized the importance of customary international law in international and domestic judicial practice and that a practice of identification and application of customary international law was far from uniformity, a uniform approach and guidelines for interpretation of customary law would be welcomed.  The Commission’s work in that regard should result in a set of guidelines addressed to practitioners and not in a draft convention.  A differentiated approach to customary law would not be accepted, as all international legal norms should be subjected to the same test regarding their nature, origin and binding force.  Fragmentation of international law, he said in conclusion, would lead to a destruction of a legal order and therefore would be contrary to the interests of the international community. 

SIMONA MIRELA MICULESCU ( Romania) described the topic of immunity of State officials from foreign criminal jurisdiction as one that was complex and sensitive and deserving of a systemic approach.  Examination of such immunity should be closely related to State immunity.  Although they were not identical, they were based on the same premise of State sovereignty.  Moving to the provisional application of treaties, she said consideration of relevant State practice and the circumstances under which States resorted to such provisional application would be useful for the Commission’s work on the topic.  The final outcome of that work, however, might be decided at a later stage.

Citing the significance of the Commission’s efforts on the formation and evidence of customary international law, she said customary international rules should be elaborated with a practical purpose.  In that regard, State practice and the judgements and advisory opinions of the International Court of Justice should be a focus of the Commission.  Turning to the obligation to extradite or prosecute, she pointed out that the subject had a close relationship with universal jurisdiction.  Thus, the Sixth Committee’s conclusion of its work on universal jurisdiction should not preclude the Commission’s analysis of that relationship.

As for the topic of treaties over time, she said that a flexible approach to the topic should be preserved, with efforts made to ensure any conclusions or guidelines contained certain normative content.  Finally, regarding the most-favoured-nation clause, she expressed hope that further progress would ensure a more stable and certain investment law, and that recommendations and possible model clauses would be drafted within the broader normative framework of international law. 

YOLANDE DWARIKA ( South Africa) said the scope of both immunity ratione materiae and immunity ratione personae required deeper reflection.  Specifically, immunity ratione personae would benefit from clarification by the Commission on its scope and extent for the so called “troika”, and whether there were benefits to restricting its application to other officials.  South African law had already sought to balance important international law principles, such as the fight against impunity and human rights, with rules applicable to immunities through the implementation of the Rome Statute Act of 2002.  The Commission should further elaborate whether the committing of serious international crimes which bore individual criminal liability could result in exceptions to immunity. 

Concerning the provisional application of treaties, she said States who agreed to provisionally apply a treaty should be bound to apply the relevant provisions of that treaty in the same way as if the treaty had entered into force, subject to the conditions provided in the particular provisional application clause.  Concerning the formation of customary international law, she supported the Special Rapporteur’s proposal to focus on the practical aspects of the topic, as well as the proposal that the outcome be a set of conclusions or propositions with commentaries.  Concerning the obligation to extradite or prosecute, the harmonisation of multilateral treaty regimes would be a less than meaningful exercise because of the complex nature of multilateral treaties dealing with the topic.  Also, in light of the debate within the Commission, she questioned whether the topic should continue to be pursued by that body.

* *** *

For information media • not an official record
For information media. Not an official record.