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Immunities and International Crimes before the ILC: Looking for Innovative Solutions

  • Mathias Forteau (a1)
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The International Law Commision's (ILC's) work on Immunity of State officials from Criminal Jurisdiction, which started ten years ago, has generated over time high expectations. In light of progress in international criminal law, the ILC is expected to strike a reasonable balance between the protection of sovereign equality and the fight against impunity in case of international crimes. It requires the Commission to determine whether or not immunity from criminal jurisdiction applies or should apply when international crimes are at stake. At its 2017 session, the ILC eventually adopted Draft Article 7 on this issue, which proved quite controversial and did not meet states’ approval. The purpose of this essay is to shed some light on the main shortcomings of this provision and to identify possible alternatives that could permit the ILC to overcome the deadlock concerning its adoption.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
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1 See Int'l Law Comm'n, Report on the Work of Its Sixty-Ninth Session, UN Doc. A/72/10, at 176–77 (Sept. 11, 2017) [ILC Report 2017].

2 See Int'l Law Comm'n, Provisional Summary Record of the 3365th Meeting, UN Doc. A/CN.4/SR.3365, at 16–18.

3 See ILC Report 2017, supra note 1, at paras. 74–75, as well as Int'l Law Comm'n, Provisional Summary Record of the 3378th Meeting, UN Doc. A/CN.4/SR.3378.

4 Twelve states supported Draft Article 7 (Austria, Chile, Czech Republic, El Salvador, Greece, Italy, Mexico, Netherlands, Norway, Poland, Portugal, South Africa); ten states observed that the ILC should have tried to reach consensus before adopting any provision (Australia, China, France, Italy, Portugal, Romania, Slovakia, Slovenia, Spain, Sri Lanka); twenty-two states expressed concerns or disagreement with Draft Article 7 (Australia, China, France, Germany, India, Indonesia, Iran, Ireland, Israel, Japan, Korea, Malawi, Malaysia, Singapore, Slovakia, Slovenia, Spain, Sri Lanka, Switzerland, Thailand, United Kingdom, United States). All the relevant statements are available at Sixth Committee, 72nd Session, UnMeetings (Item 81 of the Agenda, Oct. 23 to 27 and 31, 2017).

5 In 2017, it has been decided that “the procedural provisions and safeguards applicable to the present draft articles” will be considered at the next session of the Commission in 2018 (see the asterisk added to Parts II and III of the draft articles so far adopted, ILC Report 2017, supra note 1, at para. 140, as well as Paragraph 9 of the Commentary of Draft Article 7).

6 See, e.g., Int'l Law Comm'n, Report on the Work of Its Sixty-Eighth Session para. 247, UN Doc. A/71/10 (Sept. 19, 2016); ILC Report 2017, supra note 1, at paras. 110–15.

7 See Int'l Law Comm'n, Provisional Summary Record of the 3331st Meeting, UN Doc. A/CN.4/SR.3331, at 12, last paragraph.

8 See ILC Report 2017, supra note 1, at para. 136.

9 Certain Questions of Mutual Assistance in Criminal Matters (Djib. v. Fr.), 2008 ICJ Rep. 177, para. 196 (June 4).

10 Jurisdictional Immunities of the State (Ger. v. It.), 2012 ICJ Rep. 99, para. 93 (Feb. 2), para. 93.

11 See in particular Vincent Coussirat-Coustère, Immunité, in Dictionnaire des idées reçues en droit international 304–05 (Hervé Ascensio et al. eds., 2017).

12 ILC Report 2017, supra note 1, at para. 95.

13 See in particular Pierre d'Argent, Immunity of State officials and the Obligation to Prosecute, in Immunities in the Age of Global Constitutionalism 250–60 (A. Peters et al. eds., 2014); Dapo Akande & Sangeeta Shah, Immunities of States Officials, International Crimes, and Foreign Domestic Courts, 21 Eur. J. Int'l L. 839 (2011).

14 Int'l Law Comm'n, Report on the Work of Its Sixty-Sixth Session, UN Doc. A/69/10, para. 65, sub-paras. 49–55 (2014).

15 ILC Report 2017, supra note 1, at Commentary on Draft Article 7, para. 5 and nn. 762, 763 and 764.

16 Id. at para. 8 and nn. 765, 766 and 767.

17 Id. at para. 133: “The Special Rapporteur noted that other forms of State practice, such as decisions by prosecutors or diplomatic demarches, were typically not available in the public domain and could thus not be considered as relevant practice.”

18 See ILC Report 2017, supra note 1, at para. 78: exceptions and limitations to immunity “had been the subject of recurrent debate over the years in the Commission and in the Sixth Committee, eliciting diverse, and often opposing, views.”

19 Reaching the same conclusion, see Hazel Fox & Philippa Webb, The Law of State Immunity 571–76 (2013); Droit international pénal 562–64 (Hervé. Ascensio et al. eds., 2012).

20 Jones v. UK, 2014 Eur. Ct. H.R. 176, para. 213.

21 Bearing in mind that in some instances, in federal systems, state practice is more progressive and liberal than federal rules (see in particular William J. Brennan Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1976–1977)).

22 Following the model of Article 54 of the Articles on State Responsibility (GA Res. 56/83 (Dec. 12, 2001).

23 See for a similar approach the 1991 Draft Articles on Jurisdictional Immunities of States and Their Property, Int'l Law Comm'n, Report on the Work of Its Forty-Third Session, UN Doc. A/46/10, in particular 22, para. 1 of the Commentary on Article 4, and 23, para. 3 of the Commentary on Article 5 (1991).

24 See ILC Report 2017, supra note 1, at paras. 111 and 119.

25 See the interesting example of the Additional Protocol to the European Convention on State Immunity, May 16, 1972, ETS No. 074A (which, admittedly, did not attract many ratifications).

26 In the Genocide case, the ICJ followed a similar approach by considering that the Genocide Convention does not oblige States to exercise extra-territorial jurisdiction but at the same time “does not prohibit States” to exercise it (Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), 2007 ICJ Rep. 43, para. 442 (Feb. 26)).

27 A convincing example is Article 19 of the Draft Articles on Diplomatic Protection, entitled “Recommended Practice” (Int'l Law Comm'n, Report on the Work of Its Fifty-Eighth Session, UN Doc. A/61/10, at 94 (2006)), which has eventually been endorsed, in part, by the ICJ in 2012 in Diallo (Case Concerning Ahmadou Sadio Diallo (Guinea v. Dem Rep. Congo), 2012 ICJ Rep. 324, para. 57 (June 19)).

28 See, mutatis mutandis, as a possible source of inspiration and concerning civil claims, Institut de Droit International, Universal Civil Jurisdiction with regard to Reparation for International Crimes art. 5 (2015), stating that “The immunity of States should not deprive victims of their right to reparation.”

I wish to thank Ms. Alison See Ying Xiu (then an NYU LLM student) for her assistance on the topic of immunities during the 2016 session of the ILC.

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