Ambiguities and Deficiencies of Draft Article 7

In August 2017, the ILC adopted Draft Article 7, according to which “Immunity ratione materiae from the exercise of foreign criminal jurisdiction shall not apply in respect of the following crimes under international law: (a) crimes of genocide; (b) crimes against humanity; (c) war crimes; (d) crime of apartheid; (e) torture; (f) enforced disappearance.”Footnote ¹ The Commission did not achieve a consensus on that provision. Instead, it took two quite unprecedented decisions: First, it resorted to a vote to decide whether or not the debate in the Plenary should be closed and Draft Article 7 as proposed by the Special Rapporteur should be referred to the Drafting Committee (the Commission deciding with a majority of twenty members to close the debate and refer Draft Article 7 to the Drafting Committee).Footnote ² Second, the Commission decided some weeks later to provisionally adopt Draft Article 7 as proposed by the Drafting Committee by recorded vote, with twenty-one votes in favor, eight votes against, and one abstention, and with explanations of votes by no less than twenty members.Footnote ³ For the Commission to resort to two ballots (plus declarations of vote) and not to the usual procedure of consensus is very unfortunate. Rushing to a vote and forcing through the adoption of a divisive provision inevitably made it more difficult to reach consensus at the diplomatic level. Unsurprisingly, when discussed in the Fall 2017 in the Sixth Committee of the UN General Assembly, Draft Article 7 gave rise to many criticisms, some relatively mild, others unusually harsh. In my view, most of the criticisms are justified.Footnote ⁴

Draft Article 7 raises, in particular, three important concerns. First, procedural aspects of immunities should have been explored before taking any position on possible exceptions to immunities.Footnote ⁵ Many members of the Commission suggested to the Special Rapporteur that there was a need to assess them together.Footnote ⁶ In 2016, the Special Rapporteur announced that she intended to follow that approach in 2017,Footnote ⁷ but eventually she did not do so. In 2017, she did not submit a report on the procedural aspects of the topic and asked for the adoption of Draft Article 7 on the basis of her last report exclusively.Footnote ⁸

This action is regrettable because exceptions to immunity can hardly be defined without taking into account procedural issues. In practical terms, there is indeed no immunity ratione materiae if the relevant state does not claim immunity. From that perspective, a procedural requirement is inseparable from the benefit of immunity, and bears legal consequences. According to the ICJ, “The State which seeks to claim immunity for one of its State organs is expected to notify the authorities of the other State concerned” and “the State notifying a foreign court that judicial process should not proceed, for reasons of immunity, against its State organs, is assuming responsibility for any internationally wrongful act in issue committed by such organs.”Footnote ⁹ Besides, the rules of immunity are “procedural in character.”Footnote ¹⁰ Since other procedural rules can possibly restrict the scope of immunities from criminal jurisdiction, the former need to be articulated with the latter to define the extent and limits of such immunities. This is in particular the case for the right to a remedy and the obligation to investigate or prosecute.Footnote ¹¹ In addition, the regime of possible exceptions or limitations to immunities from criminal jurisdiction should be dependent on the elaboration of a procedural regime aimed at protecting state officials from frivolous prosecutions. When crafting Draft Article 7, the majority of the ILC failed to take that important element into account. Members of the Commission argued in support of Draft Article 7 that the draft articles on immunities “should follow the example of the Rome Statute of the ICC [International Criminal Court], which in article 27 declares the irrelevance of official capacity” when international crimes are at stake.Footnote ¹² But for the analogy to be relevant, it has to be comprehensive, i.e., it should imply that exceptions to immunity are admissible before domestic courts only insofar as they are accompanied with corresponding procedural safeguards such as the principle of complementarity and guarantee against abusive prosecutions, which qualify the ICC's jurisdiction but are not included in Draft Article 7.

Second, Draft Article 7 is hard to reconcile with the previous work of the Commission on a related topic. A number of authors consider that under international law exceptions to immunity from criminal jurisdiction derive from treaty obligations compelling states to prosecute or extradite persons accused of international crimes committed by foreign officials. When such an obligation to extradite or prosecute applies, it should necessarily prevail over any immunity.Footnote ¹³ This convincing approach should mean that customary exceptions to immunity depend on the existence of a customary obligation to prosecute or extradite. However, in its 2014 Final Report on the obligation to extradite or prosecute, the Commission was unable to conclude whether or not such an obligation is part of customary international law.Footnote ¹⁴ This uncertainty is not fully consistent with the position in Draft Article 7 that under general international law state officials should not benefit from immunity in case of alleged international crimes.

Third, the absence of consensus within the Commission on the identification of the relevant materials to substantiate Draft Article 7 is problematic for the credibility of the conclusions reached by the Commission. The Commentary on Draft Article 7 relies on a number of cases, national laws, and treaties to support the assertion that “there has been a discernible trend towards limiting the applicability of immunity from jurisdiction ratione materiae” in case of international crimes.Footnote ¹⁵ But some members of the Commission challenged the relevance and even the accuracy of the materials invoked by the majority. In particular,

It is very unfortunate that the Commission did not even succeed in proposing convergent views on existing precedents on the topic. The Commission also failed to take into account the whole relevant practice.Footnote ¹⁷

Admittedly, there is nothing problematic in having disagreements on the identification of existing customary law on a given topic. The problem is that the Commission did not clarify the nature of the conclusions it drew from the relevant materials: Does Draft Article 7 reflect customary law, or does it constitute progressive development of international law? For the Commission to consider that there is “a discernible trend”—a view that many scholars agree with—is quite ambiguous in that regard. The reactions in the Commission and in the Sixth Committee tend to demonstrate the absence of a general opinio juris supporting Draft Article 7,Footnote ¹⁸ which would then constitute progressive development, rather than codification, of international law.Footnote ¹⁹ However, domestic authorities in charge of investigations and prosecutions, which are the primary addressees of the draft articles on immunity from criminal jurisdiction, need clarity as regards the content of existing law on the topic. For them, progressive development could prove more harmful than helpful if it does not provide clear answers. This is the reason why the ILC should look for alternatives in the course of the next steps of its work on the topic, in order to be more helpful to State authorities in charge of enforcing immunities.

Looking for Alternatives

The main reason why the current work of the ILC raises concerns results from the binary approach it follows (there would be either no exception or exceptions to immunity from criminal jurisdiction). This simplistic approach is hardly compatible with the current status of international law on the topic. As the European Court of Human Rights put it, “State practice on the question is in a state of flux, with evidence of both the grant and the refusal of immunity ratione materiae in such cases.”Footnote ²⁰ To that extent, there is some indeterminacy of the law and thus some need for granting a margin of appreciation to state authorities in charge of regulating immunities, provided that there is some legal security. Inspired by the idea of “dédoublement fonctionnel ” according to which state organs are in charge of enforcing both domestic and international law and are to be seen as the primary addressees of international rules, the ILC should adopt a “subsidiarity” or a “federal” approach consisting in seeking to frame state practice rather than impose rigid rules.Footnote ²¹ So far, the Special Rapporteur and the Commission have not really explored such alternative solutions. Debates have been caught in a fruitless battle between pro and anti-exceptions to immunity. A number of alternative solutions, however, could be considered.

A first category of alternative solutions would consist in letting states decide on the definition of the regime of exceptions to immunities from criminal jurisdiction, on the ground that state practice and opinio juris are not yet mature enough. It could take the form of a clause without prejudice to any further development of international law,Footnote ²² or the ILC could simply recommend the adoption of Draft Article 7 as a new treaty rule. A more robust outcome could consist in proposing a more elaborated treaty regime, including procedural safeguards and/or procedural preconditions.Footnote ²³ Following that approach, an interesting suggestion was made within the ILC to set forth a “treaty-based duty to ‘waive or prosecute.’”Footnote ²⁴ In a more ambitious way, one may also think of an international mechanism of settlement of disputes that claimants could trigger to challenge immunities invoked before domestic courts.Footnote ²⁵ Admittedly, for the ILC to propose a new treaty regime could be interpreted, a contrario, rightly or wrongly, as implying that there is no exception to immunity in existing international law, but on the other hand it would provide the maximum degree of legal security for states accepting the new treaty regime.

A second category of solutions would require accepting that existing state practice is divergent and that, as a result, it is vain to try to impose any prescriptive rule (be it the rejection or the acceptance of exceptions to immunities). The objective should rather be to help domestic organs in charge of investigation and prosecution, including domestic courts, by offering them some guidance, which in turn would permit to frame future state practice on the matter. The ILC could for instance adopt a guideline to the effect that domestic organs should be permitted not to grant immunity when international crimes are at stake provided that certain conditions—in particular procedural safeguards—are met (for instance, an absence of alternative means of redress before domestic courts of the territorial state or the state of nationality, and the existence of a number of credible allegations by relevant international organizations that international crimes have been or are committed). Such a permissive provision would frame state practice in a way which would be reasonably respectful of other states’ sovereignty while at the same time providing tools for fighting impunity.Footnote ²⁶ It could take the form of a recommendation, bearing in mind that recommendations can be drafted in a more efficient way by being more detailed and nuanced than a clear-cut, abrupt obligation and that in some cases they could achieve better results than prescriptive rules when disagreements between states are too strong.Footnote ²⁷ Another option could be to regulate indirectly immunities by limiting them by other relevant rules, without explicitly providing for exceptions.Footnote ²⁸