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

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.

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. 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. 5 Many members of the Commission suggested to the Special Rapporteur that there was a need to assess them together. 6 In 2016, the Special Rapporteur announced that she intended to follow that approach in 2017, 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. 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." 9 Besides, the rules of immunity are "procedural in character." 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. 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. 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. 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. 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. 15 But some members of the Commission challenged the relevance and even the accuracy of the materials invoked by the majority. In particular, those members noted that only nine cases are cited … that purportedly expressly address the issue of immunity ratione materiae of a State official from foreign criminal jurisdiction under customary international law, and that most of the cases actually provide no support for the proposition that such immunity is to be denied. 16 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. 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, 18 which would then constitute progressive development, rather than codification, of international law. 19 However, domestic authorities in charge of 13  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." 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. 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, 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. 23 Following that approach, an interesting suggestion was made within the ILC to set forth a "treaty-based duty to 'waive or prosecute.'" 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. 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. 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. 27 Another option could be to regulate indirectly immunities by limiting them by other relevant rules, without explicitly providing for exceptions. 28

Conclusion
In practice, immunities are an issue to be addressed primarily by state authorities, and to that extent, as other private international law matters (such as conflicts of laws or conflict of jurisdictions), relevant rules are primarily defined by these authorities. At the same time, it has to be assured that relevant international rules and principles are duly taken into account. To that extent, there is some value in considering that the regime of immunities from criminal jurisdiction should result from a collaborative product of international and domestic efforts according to which state authorities should have some margin of appreciation in developing state practice provided that they act under the guidance of international law, in particular the necessity to fight impunity. Such an approach would be more consistent with the current nature of international law, which is based on an increasingly close interplay between domestic and international levels. 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 ( 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."