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Methodological Flaws in the ILC's Study on Exceptions to Immunity Ratione Materiae of State Officials from Foreign Criminal Jurisdiction

  • Qinmin Shen (a1)
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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.

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References
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1 Int'l Law Comm'n, Report on the Work of Its Sixty-Ninth Session, UN Doc. A/72/10 (Sept. 11, 2017) [hereinafter ILC Report A/72/10].

2 Id. at 184.

3 China, France, Germany, Indonesia, Iran, Israel, Poland, Republic of Korea, Spain, the United Kingdom, and the United States pointed out this exceptional method of adopting the draft article in their official statements during the UN General Assembly Sixth Committee's discussion on the ILC's annual report in October 2017.

4 At its 2940th meeting on July 20, 2007, the ILC decided to include the topic in its program of work. See Int'l Law Comm'n, Report on the Work of Its Sixty-Second Session para. 378, UN Doc. A/62/10 (2007).

5 For the national statements, see Sixth Committee, 72nd Session, UNMeetings.

6 ILC Report A/72/10, supra note 1, at 181–83.

7 Id. at 166–67, para. 83.

8 Id. at 178.

9 Id. at 181.

10 Id. at 170.

11 Id. at 179.

12 Id. at 181 nn. 762–64.

13 Int'l Law Comm'n, Report on the Work of Its Sixty-Eighth Session 78, UN Doc. A/71/10 (Sept. 19, 2016).

14 ILC Report A/72/10, supra note 1, at 179–80 n. 763.

15 Samantar v. Yousuf, 560 U.S. 305 (2010).

16 ILC Report A/72/10, supra note 1, at 179–80 n. 763.

17 Id. at 179 n. 762.

18 Id. at 179–80 n. 763.

19 Id. at 182 n. 766.

21 ILC Report A/72/10, supra note 1, at 179 n. 762.

23 ILC Report A/72/10, supra note 1, at 179 n. 762.

24 In fact, the court in Jones specifically distinguished the case before it from Pinochet III. Lord Bingham of Cornhill in Jones stated that “I would not question the correctness of the decision reached by the majority in Pinochet (No 3). But the case was categorically different from the present, since it concerned criminal proceedings falling squarely within the universal criminal jurisdiction mandated by the Torture Convention and did not fall within Part 1 of the 1978 Act (the State Immunity Act 1978).” See Jones v. Saudi Arabia para. 19, [2006] UKHL 26.

25 Int'l Law Comm'n, Report on the Work of Its Sixty-Eighth Session 78, UN Doc. A/71/10 (Sept. 19, 2016).

26 Prosecutor v. Al-Bashir, Case No. ICC-02/05-01/09, Decision Under Article 87(7) of the Rome Statute on the Non-Compliance by South Africa with the Request by the Court for the Arrest and Surrender of Omar Al-Bashir 27 para. 71 (July 6, 2017).

27 ILC Report A/72/10, supra note 1, at 179 n. 763.

28 Id. at 180 n. 764.

29 Id. at 183 n. 770 (“Prefecture of Voiotia v. Federal Republic of Germany, Court of First Instance of Livadeia (Greece), judgment of 30 October 1997.”).

30 Id. at 179, Note 762 (“The Italian Supreme Court has … asserted that State officials who have committed international crimes do not enjoy immunity ratione materiae from criminal jurisdiction” citing (Corte di cassazione (Cass.), 11 marzo 2004, n. 5044/04 Ferrini v. Ger., 128 ILR 674) (It.)).

31 Minority members of the ILC explained that “the relevance for the topic of civil cases in national courts must be carefully considered; to the extent they are relevant, they tend not to support the exceptions asserted in draft article 7.” ILC Report A/72/10, supra note 1, at 181 n. 765.

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

33 See Hua Chunying, Takungpao (2013) (China).

34 ILC Report A/72/10, supra note 1, at 181–82 n. 765.

35 Id. at 169 para. 98.

36 Statement by Chinese delegate Director-General XU Hong of the Department of Treaty and Law of Chinese Foreign Ministry at 72nd Session of the UN General Assembly on 27 October 2017 on Agenda Item 81 “Report of the International Law Commission on the work of its 69th session: Cluster 2: Chapters VI and VII & Cluster 3: Chapters VIII, IX and X” [hereinafter Chinese Delegate Statement].

37 ILC Report A/72/10, supra note 1, at 180 n. 764 (“The existence of a trend towards limiting immunity for international crimes was noted by Judges Higgins, Kooijmans and Buergenthal in their joint separate opinion in Arrest Warrant of 11 April 2000” citing Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 ICJ Rep. 3, 88 para. 85 (Feb. 14)).

38 ILC Report A/72/10, supra note 1, at 182 n. 768.

39 Id. at 185 para. 17.

40 Id. at 186–87 para. 19.

41 See id. at 183.

42 Id. at 188 para. 23.

43 The ILC's own requirement of ample practice in the identification of customary international law is reflected in the Draft Conclusion 8(1) of the Draft Conclusions on Identification of Customary International Law, Int'l Law Comm'n, Report on the Work of Its Sixty-Eighth Session 94, UN Doc. A/71/10 (Sept.19, 2016) (“The relevant practice must be general, meaning that it must be sufficiently widespread and representative, as well as consistent.”).

44 Chinese Delegate Statement, supra note 36.

45 Statement by Richard Visek, Acting Legal Adviser to US Department of State, at 72nd General Assembly Sixth Committee on Agenda Item 81 “Report of the International Law Commission on the Work of its 69th Session” on October 25, 2017.

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