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The “International Crime” Exception in the ILC Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction: Two Steps Back?

  • Rosanne van Alebeek (a1)
Extract

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.

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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.
References
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1 Int'l Law Comm'n, Report on the Work of Its Sixty-Ninth Session para. 74, UN Doc. A/72/10 (Sept. 11, 2017). The text of the draft article can be found on id. at 176.

2 Statute of the International Law Commission art. 1.1, Nov. 21, 1947, GA Res. 174 (II).

3 In this short essay, references will take the form of the surname of the ILC member, followed by the number of the meeting in which the view was advanced.

4 Anatolevich Kolodkin (Special Rapporteur Immunity for of State Officials from Foreign Criminal Jurisdisction), Second Report para. 90, UN Doc. A/CN.4/631 (2011).

5 Id. at paras. 56-80.

6 Id. at para. 91.

7 Id. at para. 93.

8 Not all thirty-four members contributed to the debates. Ten members (Belle Adoke; Al-Marri; Candioti; Comissário Afonso; Huang; Kemicha; Niehaus; Saboia; Vázquez-Bermúdez; Wako) did not take the floor. In addition Galicki (3088) did not take a position in his contribution.

9 Vasciannie (3087, even though he thought the reasoning in regards to the rejection of the exception as a matter of progressive development required more elaboration); Wood (3088); Perera (3088); Singh (3113).

10 Jacobsson (3087); Petrič (3087); Hassouna (3088, although his contribution did not make this point with so many words, his reaction fits this category best); Fomba (3115). The response of Valencia Ospina (3088) is not easy to qualify, and could possibly also been seen to fit the next category.

11 See infra nn. 13 and 14.

12 Pellet (3087).

13 Dugard (3086, while he referred to progressive development, he in essence argued in favor of an alternative approach to the establishment of the scope of customary international law); Melescanu (3086); Vargas Carreño (3087); Pellet (3087); Gaja (3087); Caflisch (3088); Wisnumurti (3088); Escobar Hernández (3088, although her response included some ambiguous elements, like the closing sentence “exceptions to the general rule of immunity should be treated de lege ferenda”); Hmoud (3114).

14 McRae (3087); Nolte (3088); Kamto (3088, although his reasoning seems to indicate that he believes the exception is part of lex lata, he is not explicit in this regard); Murase (3113).

15 Escobar Hernandez; Vargas; Carreño, Wisnumurti; Melescanu.

16 Dugard; Kamto; Hmoud.

17 Gaja.

18 E.g., Murase (3113).

19 Concepción Escobar Hernández (Special Rapporteur Immunity for of State Officials from Foreign Criminal Jurisdisction), Preliminary Report para. 68, UN Doc. A/CN.4/654 (2012).

20 Concepción Escobar Hernández (Special Rapporteur Immunity for of State Officials from Foreign Criminal Jurisdisction), Fifth Report para. 180, UN Doc. A/CN.4/701 (June 14, 2016) [hereinafter Fifth Report Escobar Hernández].

21 Id. at paras. 181-89.

22 Id. at para. 190.

23 Id. at para. 217.

24 Thirteen members were replaced at the 2017 elections. Of the 2016 ILC, ten members did not take the floor (Belle Adoke; Al-Marri; Caflisch; Comissário Afonso; El-Murtadi Suleiman Gouider; Forteau; Jacobsson; Niehaus; Wako; Wisnumurti); of the 2017 ILC this was five members (Al-Marri; Argüello Gómez; Aurescu; Reinisch; Wako). One member of the 2016 ILC spoke without taking a position. Kittichaisaree (3330) merely said that it was advisable for the Commission to clearly indicate which provisions fell into the category of customary international law and which fell into the category of progressive development.

25 Two members of both the 2016 and 2017 ILC that spoke out in support of Draft Article 7 did so without any reference to the dual task of the Commission and without explicit support for the reasoning advanced by the Rapporteur which made it impossible to rely on their contributions for the purposes of this inquiry: Valencia Ospina (3361); Peter (3363).

26 Murase (3328 & 3363); Saboia (3330); Hmoud (3331); Vázquez-Bermúdez (3362); Gómez-Robledo (3363, referring to progressive development but reasoning predominantly in terms of lex lata).

27 See infra nn. 29, 31, 35.

28 See infra nn. 30, 31, 32, 36.

29 Park (3360); Tladi (3361); Hassouna (3361).

30 Park; Tladi; Hassouna; Galvão Teles (3361); Jalloh (3362); Cissé (3364).

31 2016: Candioti (3330 & esp. 3331); Šturma (3331, 3362, 3378). 2017: Šturma; Ouazzani Chahdi (3364).

32 Nguyen (3360); Oral (3364); Grossman Guiloff (3364); Ruda Santolaria (3364).

33 2016: McRae (3331). 2017: Lehto (3362).

34 Huang (3330, 3364, 3378); Singh (3331); Kamto (3331); Wood (3360, 3378); Kolodkin (3361, 3378); Murphy (3362, 3378); Laraba (3363); Nolte (3365, 3378); Petrič (3378, 3387).

35 Huang; Wood; Kolodkin; Murphy; Laraba; Nolte; Petrič; Rajput (3363, 3378).

36 Petrič and Laraba were less outspoken on this latter point.

37 E.g., Wood.

38 E.g., Hmoud; McRae; Vázquez-Bermúdez; Jalloh; Grossman.

39 Thirteen of twenty three members (eleven members did not take position).

40 Six of twenty-three members (six members did not take position)

41 Thirteen of nineteen members.

42 Int'l Law Comm'n, Report on the Work of Its Sixty-Ninth Session ch. VII, UN Doc. A/72/10 (Sept. 11, 2017).

43 Commentary, para. 1, (emphasis added), id. at 178.

44 Commentary, para. 7, id. at 181.

46 Christian Tomuschat, The International Law Commission - An Outdated Institution?, 49 German Y.B. Int'l L. 77, 87 (2006).

49 Fifth Report Escobar Hernández, supra note 20, at para. 217.

50 Id. at para.190.

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