The Inadmissibility of Jurisdictional Immunity of Persons Responsible for the Commission of International Crimes in Terms of Domestic Universal Jurisdiction Proceedings

The International Law Commission (ILC) temporarily adopted Draft Article 7 on immunity of state officials from foreign criminal jurisdiction, listing six international crimes such as genocide and crimes against humanity that state officials don’t share immunity from foreign criminal jurisdiction. This paper holds a conservative attitude to the adoption of Draft Article 7 after combing international and national practice and research on immunity theory. First, by sorting out international practices and national practices, it could be drawn that the exception to immunity of state officials from foreign criminal jurisdiction has not yet formed customary international law. Second, through the analysis of the theory and practices, it could be found that the theory for supporting international crimes as exceptions to the immunity of state officials from foreign criminal jurisdiction: international crimes should not be recognized as official acts, the effectiveness of jus cogens is higher than the immunity rule and the theory of impunity against international crimes are not sufficient. Based on the above results, this paper argues that the ILC should not make clarifying immunity exceptions the core of its work on this topic; instead, it should focus on further clarifying the rules for granting state officials immunity from foreign criminal jurisdiction to respect the principle of sovereign equality of states and maintain the stability of international relations.

Throughout the last decade, while the International Law Commission was considering the topic ‘Immunity of State officials from foreign criminal jurisdiction’, representatives of the Russian Federation in the Sixth Committee of the UN General Assembly repeatedly emphasized its importance and topicality. In 2016, the ILC Special Rapporteur Concepcion Escobar Hernandez presented her fifth report, devoted to undoubtedly the central and most controversial question of the entire topic, namely potential limitations and exceptions to the immunity of State officials from foreign criminal jurisdiction. According to the newly proposed draft Article 7, immunity ratione materiae shall not apply, inter alia, to the crimes of genocide, crimes against humanity, war crimes, torture and enforced disappearances. The discussion of the ILC Report on the work of its sixty-eighth session in the GA Sixth Committee in 2016 demonstrated that Russia, as well as many other countries, does not support the Special Rapporteur’s argumentation and conclusions. This article examines the legal and practical rationales behind States’ criticism of the fifth report by Ms. Escobar Hernandez and presents the Russian perspective on the issue of potential exceptions to foreign official immunity under international law.

In July 2017, the UN International Law Commission (ILC) provisionally adopted Draft Article 7 on exceptions to immunity ratione materiae of state officials from foreign criminal jurisdiction, by a recorded vote of twenty-one votes in favor, eight votes against, and one abstention. In the view of the majority of ILC members, immunity ratione materiae does not apply to the six international crimes listed in the draft article—genocide, crimes against humanity, war crimes, apartheid, torture, and enforced disappearance—either because of a limitation or because of an exception. The unusual practice of adopting a draft article by recorded vote demonstrated the deep controversy among the ILC members themselves. After all, exceptions to official immunity lie at the core of the project of “Immunity of State Officials from Foreign Criminal Jurisdiction” that was started a decade ago by the ILC. This divisive Draft Article 7 naturally garnered criticism and equally deep controversy among states in discussions on the ILC's work report at UN General Assembly Sixth Committee in late October 2017.

This article examines the scope and limitations of jurisdictional immunities afforded to high-ranking state officials accused of international and transnational crimes in foreign courts, including international courts. It discusses how international law balances the immunities granted to facilitate international relations and uphold state sovereignty against the need to address serious crimes that threaten the international community as a whole. The analysis delves into key legal debates and landmark cases shaping the understanding of these immunities. A focal point of the analysis is the work of the International Law Commission (ilc) on the topic of Immunity of State Officials from Foreign Criminal Jurisdiction, particularly Draft Article 7. It is argued that ilc’s Draft Article 7, while explicitly clarifying the application of immunity in international crime cases, also provides valuable insights into the scope of immunity for transnational crimes. Transnational crimes, like corruption, are fundamentally private acts carried out for personal gain, regardless of whether they are committed by someone in an official capacity or utilizing the resources and instrumentalities of the state. Therefore, these acts cannot be considered official and do not trigger the application of immunity ratione materiae. By highlighting the implications of Draft Article 7, the article contributes to the broader understanding of how international law can reconcile the need for state officials to perform their duties without fear of foreign prosecution with the necessity of holding them accountable for serious crimes. It suggests a more restrictive approach to immunity, particularly concerning transnational crimes, thereby enhancing the potential for legal accountability for offending state officials.

1 Introduction We are grateful to Alexander Orakhelashvili for engaging with the points we make in our recent EJIL article on immunity and international crimes. 1 He has written widely on this issue and his view that international law immunities are not available in judicial proceedings for violations of jus cogens norms is well known. In our article, we disagree with that view and show why that understanding of the relationship between jus cogens norms and international law immunities is untenable. However, it would be wrong to say, as he says, that we �attack� his views (or indeed those of others who share that same perspective). There is, we believe, a reasonable disagreement of view. As is well known, international law provides two types of immunity for state officials from the jurisdiction of foreign states. The first type are �status� immunities (�personal� immunities or immunities ratione personae) and the second is an �official act� immunity (�functional� immunity or immunity ratione materiae). In our view, international law confers two types of �status� immunity: the first type is limited to foreign heads of state and heads of government; it is absolute and applies even in cases alleging international crimes and even where the individual is abroad on private visit. The second type of immunity ratione personae applies only to those abroad on special mission (and therefore in the host state with its consent) and only for the duration of such mission. This special mission immunity is also applicable in cases concerning international crimes. However, we argue that the immunity ratione materiae which international law confers on those who perform official acts on behalf of the state will not be available in cases where the act amounts to an international law crime. This is not because international crimes may not be official acts, or indeed �

The author comments on the case currently pending before the International Court of Justice between Germany and Italy on the jurisdictional immunities of the State concerning actions for compensation for international crimes committed during the Second World War. The article focuses on the recent case law of the Italian Supreme Court ( Corte di cassazione) which has affirmed an exception to the customary rules on State immunity, due to the higher rank of rules protecting fundamental rights of the person. The author contends that the position maintained by the Corte di cassazione is unpersuasive under various respects. First, for inter-temporal reasons, since the notion of ius cogens was not sufficiently established at the time when the offences were committed. Secondly, even if, for the purposes of jurisdictional immunities, regard were to be had to the rules in force at the moment of the judicial action, it is not sufficiently established that ius cogens norms are likely to prevail not just on conflicting treaties, but on other customary rules as well. Thirdly, the said rules are not conflicting, since their object is different: rules on jurisdictional immunities do not prevent the prosecution of international crimes nor the protection of the fundamental rights involved. Rather, they address the procedural aspect of deciding where the action is to be entertained. Subsequently, the article touches upon other issues addressed by the Corte di cassazione in the said case law, such as the availability of universal jurisdiction concerning these actions, the non-applicability of statutory limitations, the effect of the waiver clauses contained in the peace treaties and in subsequent compensatory agreements, and, ultimately, the existence of an individual right to compensation for international crimes enforceable against foreign States. Concerning the latter, the author concludes that either, as it seems more likely, such a right did not exist at the time of the facts, or, if it then existed, subsequent actions are to be deemed as barred by the said waiver clauses.

In the summer of 2017, the UN International Law Commission adopted Draft Article 7 and an associated draft annex for its project on immunity of state officials from foreign criminal jurisdiction. The draft article identifies six “crimes under international law in respect of which immunity ratione materiae shall not apply”: genocide; crimes against humanity; war crimes; crime of apartheid; torture; and enforced disappearance. Given the divergences within the Commission when considering and adopting Draft Article 7 (as evidenced by the plenary debate in 2016 and 2017, the unusual recorded vote on whether to refer the matter to the Commission's drafting committee, and the Commentary), it is difficult to conclude that the Commission is expressing a view that Draft Article 7 reflects lex lata.

The paper analyzes the practice of the states and international courts regarding the recognition, non - recognition or withdrawal of immunity in cases which are in accordance with international criminal law and against state officials, including highlevel officials. This paper offers an analysis of the historical role of World War II in recognizing individual criminal responsibilities in international law, enabling the criminal process and prosecuting officers for violating jus cogens norms. In this sense, we should distinguish the immunity ratione personae (personal immunity) from the immunity ratione materiae (functional immunity). High state officials such as the Head of State, the Prime Minister and the Minister of Foreign Affairs have the immunity ratione personae. On the other hand, the immunity ratione materiae is enjoyed by other officials. While personal immunity derives from the function performed by high-rank officials and should ensure unhindered performance of their duties, functional immunity is the immunity of the state and should primarily protect the state, not the official, because the official acts only on behalf of the state. Based on this, the paper points out that the practice of domestic courts, the International Court of Justice and the International Criminal Court in recognizing or withdrawing immunity of state officials is inconsistent. The paper analyzes the Seventh Report on Immunity of State Officials from foreign criminal jurisdiction by the Commission on International Law and indicates the areas in which the articles of a potential document on the criminal immunity of state officials in international law should be elaborated. In addition to contradictory judgments of the International Court of Justice and the International Criminal Court, the impossibility of defining uniform rules arises because the states have different understanding and believe that the dignity of the state will be endangered if their high officials are prosecuted by courts of other states. The paper concludes that further monitoring of the work of relevant international and domestic courts is needed in order to uniform rules and produce a draft document on criminal immunity of state representatives in international law based on uniform practice.

219State immunity — Jurisdictional immunity — Immunity of individual officials — Head of State immunity — Immunity ratione personae and immunity ratione materiae — Immunity ratione personae confined to Head of State and certain high-ranking officials — Immunity ratione materiae applicable only in respect of official acts — Vienna Convention on Diplomatic Relations, 1961 — Vice-President of State accused of misappropriation of funds and money laundering by authorities of another State — Whether entitled to immunity — Immunity of diplomatic agents — State sovereignty — Customary international law — The law of France

State immunity — Jurisdictional immunity — Scope — Application to individual officials — Human rights — Universal jurisdiction — Scope of immunity under Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 — Double jeopardyInternational organizations — United Nations — Privileges and immunities — Immunity of experts on missions for the United Nations — Waiver of immunity — Convention on the Privileges and Immunities of the United Nations, 1946, Sections 22 and 23 — United Nations and International Court of Justice (Immunities and Privileges) Order 1974 — Whether waiver can be retroactive — Whether waiver needing to be express — The law of England

In addressing the topic of the immunity of state officials from foreign criminal jurisdiction, the International Law Commission (ILC) took on one of the most contentious issues in contemporary international law. The question whether functional immunity applies when officials are accused of having committed international crimes has divided courts and scholars alike, and the ILC was deeply split. The “international crimes” exception set forth in Draft Article 7 was, exceptionally, put up for a vote, with twenty-one votes cast in favor of provisional adoption, one abstention, and eight negative votes. Because the ILC has a mandate to both codify and progressively develop international law, these figures do not help resolve what was arguably the real bone of contention: whether or not the exception is already part of customary international law—that is, whether it is lex lata.

Summary The article focuses on contemporary challenges concerning the domestic prosecution of the crime of aggression. These challenges have one common feature, that they deal with the scope of jurisdiction over crime of aggression at a domestic level. The author analyses applicability of jurisdictional immunity (based on the principle pars in parem non habet iurisdictionem), immunity of State officials, both personal (ratione personae) and material (ratione materiae), and finally also the availability of universal jurisdiction in relation to the crime of aggression. The contribution is built on the presumption that even though each category of crimes under international law has its unique characteristics, they all share some common definitional features, reflected among else in the famous Cassese’s definition of crime under international law. The author argues that all crimes under international law are to be treated uniformly as much as possible, and therefore – relatedly – there should not be any unsubstantiated differences in standing of the crime of aggression comparing to standing of remaining categories of crimes under international law.

ABSTRACT∞ This article addresses what the increased role of strategic litigation and universal jurisdiction for serious international crimes in domestic courts means for international criminal justice by exploring the opportunities and risks as well as implications for the field. A number of key overlapping and countervailing trends stand out: (i) a growing landscape where domestic legal systems are playing larger roles; (ii) a constantly proliferating and complex transnational network of actors – formal and informal – involved in the pursuit of accountability; and (iii) a risk of further entrenching Eurocentrism of international criminal justice resulting from the dominance of European domestic courts for the prosecution of international crimes under universal jurisdiction. The article concludes by stressing the importance of strategic litigation and universal jurisdiction and the role played by civil society in pursuing accountability for serious international crimes, and puts forward some modest recommendations for mitigating some of the identified risks.

This article examines the extent to which state officials are subject to prosecution in foreign domestic courts for international crimes. We consider the different types of immunity that international law accords to state officials, the reasons for the conferment of this immunity and whether they apply in cases in which it is alleged that the official has committed an international crime. We argue that personal immunity (immunity ratione personae) continues to apply even where prosecution is sought for international crimes. Also we consider that instead of a single category of personal immunity there are in fact two types of such immunity and that one type extends beyond senior officials such as the Head of State and Head of Government. Most of the article deals with functional immunity (immunity ratione materiae). We take the view that this type of immunity does not apply in the case of domestic prosecution of foreign officials for most international crimes. However, we reject the traditional arguments which have been put forward by scholars and courts in support of this view. Instead we consider the key to understanding when functional immunity is available lies in examining how jurisdiction is conferred on domestic courts.

The Legal Framework of Transitional Justice