Jus Cogens and Immunity: Revisiting ILC Draft Article 7 on Immunity of State Officials from Foreign Criminal Jurisdiction

[Atul Alexander is an Assistant Professor of Law at the The WB National University of Juridical Sciences.]

The ILC Draft Article 7 on the Immunity of State Officials from foreign criminal jurisdiction was the source of controversy in the ILC in the context of the exception to the customary nature of ‘immunity’ rationae materia for the acts committed by State officials.

The ILC’s approach to exempt six serious crimes from the purview of ‘immunity’ is a stark departure from the existing international law jurisprudence. This is surprising because the ILC follows a straightjacket methodology of state practice and international law jurisprudence in formulating guidelines, principles, and articles. Moreover, this was a rare instance wherein the ILC undertook a task in terms of ‘progressive development of International’, drifting from its customary practice of codification.

Through this brief write-up, the author argues that by taking the jus cogens or peremptory norms route, the special rapporteur Mr. Escobar Hernandez is justified in carving out exceptions to immunity for acts rationae materiae. Albeit the jus cogens claim was rejected by the International Court of Justice (ICJ) in the Arrest Warrant Case and Jurisdictional Immunities case, there are emerging voices espousing the jus cogens exemption to immunity rationae materiae.

 ILC Justification in Exempting Immunity

The ILC included the topic- immunity of State officials from foreign criminal jurisdiction in its 58^th session of ILC (2006) in the long-term schedule. To date, the ILC has come up with ten reports on the topic. One specific issue that was the talking point  in the commission was the scope of immunity of State officials for the acts’ rationae materiae. In the second report, special rapporteur Mr. Kolodkin asserted that there was no exception to the customary international law of immunity. However, in the fifth report, the special rapporteur, Mr. Hernandez affirmed the exceptions to immunity. The diametrically opposite stance of the special rapporteurs attracted enormous discussions in the commission on the existence of exceptions.

While justifying the immunity claim, the special rapporteur relied on treaty practice, international judicial practice, national legislation, and national judicial practice. In terms of treaty practice, the commission picked on the International human rights treaties, in terms of international judicial practice the commission probed into the judgments of the European Court of Human Rights (ECHR) that affirmed exception for the act of ‘torture’. Further, the commission looked into the practice of Canada, France, and Germany to exclude the general rule of immunity.

Jus Cogens Exemption

In its fifth report, the special rapporteur utilised jus cogens as the basis for limitation and exception to immunity. Jus cogens are higher norms in International law, which binds all States, Art. 53 VCLT codifies jus cogens as:

“A treaty is void if it conflicts with a peremptory norm of general international law at the time of its conclusion. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”

Strict interpretation of the VCLT would displace immunity for grave breaches of human rights, yet, there is a reluctance to embrace this position. Nonetheless, the author justifies immunity gives way to jus cogens.

Firstly, although the  Convention of Jurisdictional Immunities of State and their Property, 2004 (immunities convention) did not make exceptions or limitations for jus cogens norms, the idea of immunity was broached in the negotiation process of the convention. The commission set up a Working Group for this purpose, which in the annex to its report drew the attention of the General Assembly to:

“the argument increasingly put forward that immunity should be denied in the case of death or personal injury resulting from acts of a State in violation of human rights norms having the character of jus cogens, particularly the prohibition on torture.”

Secondly, in the jurisdictional immunities case, the jus cogens argument was rejected; according to the ICJ, the question of immunity is procedural, and jus cogens is substantive. But the case was in the backdrop of States immunity which is distinct from the immunity of State officials from foreign criminal jurisdiction.   

Also, national courts have taken cognizance of the higher status of immunity; however, it is only in the context of immunity ratione personae, that there are state practices supporting immunity exception for grave breaches of jus cogens. In the Lozano case, the Italian Court of Cassation based its denial of immunity on the violation of fundamental rights, which have the status of jus cogens norms and must therefore take precedence over the rules governing immunity.

Thirdly, the ILC report on Peremptory norms of general international law (Jus cogens) reinforces the proposition that there indeed has emerged jus cogens exception to immunity rationae materiae. For instance, the ILC, in its third report onPeremptory norms of general international law (Jus cogens) considered whether a State has a duty to exercise jurisdiction for jus cogens crimes; the special rapporteur Dr. Dire Tladi lucidly illustrates that the Genocide Convention, 1948 provides penalty for persons committing ‘Genocide’, irrespective of his/her official position. Moreover, the Genocide Convention, 1948 does not preclude the exercise of ‘universal jurisdiction’.

Further, the ILC summarised in its report on the peremptory norm of General International law (jus cogens) the following points: ‘the fact that an act in violation of an offence prohibited by a peremptory norm of general international law (jus cogens) was committed by a person holding an official position shall not constitute a ground excluding criminal responsibility,  immunity ratione materiae does not apply to any offence prohibited by a peremptory norm of general international law (jus cogens)’, thus underling the same conclusion arrived by the ILC report on immunity.

Fourthly, the governments of Australia, Spain, the United Kingdom, and Ireland cite their domestic legislation to preclude immunity for jus cogens breach in their comments to the ILC on Immunity of State Officials from foreign criminal jurisdiction. Fifthly, judges’ dissenting and separate opinions in the ICJ provide insight into the emerging exceptions for acts ‘rationae materiae’. In the joint separate opinion of Judges Higgins, Kooijmans, and Buergenthal in the Arrest warrant case, it was observed that ‘Serious crimes under International law engage the personal responsibility of high State official’. Therefore, immunity in ‘official act’ must be narrowly defined. Also, as per the dissenting opinion of Judge Al Khaswnah, ‘immunity is an exception to rule that man is legally and morally responsible for his actions, therefore narrowly interpreted’.

Finally, immunity applies only to sovereign acts and hence cannot be stretched to acts of international crimes. In Prefecture of Voiotia v Federal Republic of Germany (2000), the Areios Pagos (Supreme Court), Greece, observed that jus cogens violations do not qualify as sovereign act. In his dissent in the Prinz case, Judge Wald stressed that ‘when State thumps jus cogens, it is not performing a ‘sovereign act’.  

Conclusion

International law cannot outlaw international crimes having  jus cogens attributes and parallelly  provide immunity. There is an imminent shift wherein jus cogens is pleaded in the national court to oust immunity from foreign criminal jurisdiction. Albeit the ICJ considers immunities applies to act rationae materiae, there is a palpable shift in this vogue. The ILC’s special rapporteur Dire Tladiadvocated a restrictive interpretation of immunity. However, there appears to be a discrepancy in the ILC report on immunity as it listed six crimes, wherein there is a requirement to enhance the list to acts of aggression and elementary consideration of humanity as indicated by special rapporteur Dire Tladi.