This week, state delegates to the Sixth (Legal) Committee of the UN have been debating the most politically sensitive topic of the latest International Law Commission‘s (ILC) report: Head of State Immunity from criminal jurisdiction.
The topic is sensitive for several reasons. First, it raises the question of whether there should be exceptions to immunity for serious crimes. In this regard it is relevant to note that Art. 27 of the ICC Statute does not recognize the immunity of state officials for international crimes, although delegates noted that courts can differ widely on this issue. Second, it requires a determination of what kinds of officials should benefit from the immunity – the traditional troika of heads of states, ambassadors, and foreign ministers– or a broader range of foreign state representatives. Third, it forces the issue of how to balance accountability and immunity, and with that, deference to state sovereignty.
The ILC had requested state comments on their national law and practice on two issues:
(a) Does the distinction between immunity ratione personae and immunity ratione materiae result in different legal consequences and, if so, how are they treated differently?
(b) What criteria are used in identifying the persons covered by immunity ratione personae?
Immunity ratione pesonae refers the personal immunity of a head of state. It is linked to the office, and is very broad because it can cover public and private acts. In contrast, ratione materiae, or functional immunity, covers acts by state officials in their official capacity. It is determined by the nature of the acts rather than the office itself, and would apply to former officials after they have left office. The ICJ has tackled aspects of these questions in the Arrest Warrant case, in Djibouti v. France, and most recently in the Jurisdictional Immunities case.
The topic is legally significant because there has been a difference between the views of national and international courts. To date, it appears that troikas get absolute status-based immunity from proceedings in other countries’ courts, but not from proceedings in international tribunals. Moreover, there is a link between immunities and state responsibility. As the UK delegate explained, a plea of immunity ratione materiae in criminal cases was a plea by the State that the act of its official was an act of the State itself, which was an acknowledgement of the State’s responsibility and, therefore, meant that any claim or remedy would lie at the level of international law. Another contentious issue is whether there should be exceptions to immunity for violations of jus cogens norms, and further, how to distinguish the legal regimes applicable to the two aforementioned types of immunity. The Special Rapporteur’s report helpfully highlights the areas of contention.
Many states want to maintain a broad regime of immunities and discouraged a lex ferenda approach to the topic. Germany, however, reiterated that immunity does not mean impunity, because states can always waive immunity, prosecute under their own national laws, or defer to international criminal jurisdiction.
For those following this topic, a few useful background notes are available here and here. The ILC will begin producing draft articles for debate, and we can expect this will be a hot topic in the years to come.