Sixty-third General Assembly

Sixth Committee

23^rd Meeting (AM)

EXTENSION OF LIST OF CRIMES NO LONGER QUALIFYING FOR IMMUNITY IS URGED

IN LEGAL COMMITTEE DISCUSSION OF ACTS OF FOREIGN OFFICIALS

 

Review of International Law Commission Report Continues; Focus

Also on Protection of Disaster Victims, Obligation to Extradite or Prosecute

It was a matter of settled international law that there was no immunity, with regard to crimes of genocide, war crimes, crimes against humanity and crimes of aggression, but that “no immunity” standard should be extended to other crimes of international concern, the Sixth Committee (Legal) was told today, as it continued debate on the report of the International Law Commission, with a focus on immunity of State officials against foreign criminal jurisdiction, protection of people in disaster and the obligation to extradite or prosecute.

Making this point in discussing the immunity of State officials, Malaysia’s representative named some other crimes for which there should be no immunity, including piracy, drug trafficking, trafficking in persons, corruption, money laundering, sabotage, kidnapping and murder by foreign secret service agents, and finally, aerial or maritime intrusion or espionage.  In addition, he said, even where immunity applied, officials were not absolved from the obligation to obey laws of foreign States.  Immunity, in addition, referred to the legal measures of criminal procedures, such as search, arrest or prosecution.

The representative of the United States called for a comprehensive set of rules to govern the immunity of State officials from foreign criminal jurisdiction.  He said the assertion of criminal jurisdiction over officials of other States implicated a most basic principle of international law, the sovereignty of States.  The set of rules governing immunity should strike a balance between a State’s interest in its officials fulfilling duties free from fear of prosecution and another State’s interest in prosecuting those whose unlawful conduct caused harm to it.

El Salvador’s representative said the question of immunity of State officials from foreign criminal jurisdiction involved the codification of international law and was related to rights and responsibilities.  The criteria for persons to be included should be defined, rather than exhaustively listed.  The question of exceptions must be approached delicately.  Comprehensive criteria may not be useful in that regard.

The immunity of State officials was not based on international comity, but on international law, India’s representative pointed out.  Therefore, the focus should be on immunity under international law.  Immunities with respect to diplomacy had already been codified, and should not be included in the current context.  Questions relating to immunity with respect to international criminal tribunals and domestic courts should be set aside.

Spain’s representative said the rules on immunity, as relating to tribunals, could be useful in defining the scope of the current work on immunity of officials, even if they were not being directly considered.  Also, the persons or categories of persons who enjoyed immunity should be defined further; she said the term for “official” in her language was broader than that implied in the text.

On the matter of protection of people in disasters, China’s representative noted the increasing frequency of natural disasters, and said international relief for countries constrained by limited relief capacity needed to be coordinated.  Emphasis should be on disaster readiness and response, led by the State under domestic laws.

On the final topic under consideration today, the representative of the United Kingdom said the obligation to extradite or prosecute arose as a result of treaty obligation, and was not yet a rule or principle of customary international law.  The terms of agreements should govern both the crimes, in relation to which obligations arose and the custodial State’s discretion on whether to extradite or prosecute.  A systematic survey of relevant international treaties, national legislation and judicial decisions should be undertaken before articles were drafted.

Also speaking today were the representatives of Norway (for the Nordic countries), Austria, Republic of Korea, Japan, Mexico and Thailand.

The Committee will meet again at 10 a.m. tomorrow, Wednesday, 4 November, when debate on items in the report of the International Law Commission is expected to be concluded.

Background

The Sixth Committee (Legal) met today to continue its consideration of the report of the International Law Commission, with a focus on protection of persons in disasters; immunity of State officials; and obligation to extradite or prosecute.  (For background information on the report, see Press Release GA/L/3351 of 27 October).

Statements

INGER HOLTEN ( Norway), for the Nordic countries, spoke on the issue of the immunity of State officials from foreign criminal jurisdiction.  She said future Law Commission reports would benefit from further examination of important sources of law, in order to fully capture the most recent legal development and cover all aspects of an issue.  On current practice and analysing the prevailing legal situation, she said the findings of the International Court of Justice in the case Certain Questions of Mutual Assistance in Criminal Matters –- Djibouti vs. France should be taken into account, since it contained important clarifications regarding immunity of State officials, which should be reflected in the Commission’s future work.

Discussing the nature of immunity, she said the Special Rapporteur seemed to take the position that immunity represented a limitation of jurisdiction, which seemed to imply that foreign courts were obliged to observe it ex officio.  She said that immunity was rather a limitation of the exercise of jurisdiction.  In the case Certain Questions of Mutual Assistance in Criminal Matters, the International Court of Justice seemed to presume that immunity for State officials other than Heads of State, Heads of Government or Ministers of Foreign Affairs had to be claimed actively by the officials’ home State, and that by doing so, the State assumed responsibility for any international wrongful act committed by one of its officials.

She said that the report of the Special Rapporteur may be “casting the nets too widely”, with respect to the number and classes of State officials who could be covered by State immunity, and, therefore, further consideration of questions pertaining to personal immunity was important.  The report interpreted the mandate of the Special Rapporteur to exclude immunity from international criminal jurisdiction; however, the rules of immunity under international criminal jurisdiction needed to be taken into account, in order to get a complete analysis of what was at the core of the task:  immunity from foreign national jurisdiction.  More specifically, the question could be whether international crimes within the framework of international criminal justice may also have a bearing on the general state of the law of immunities.

She said that article 98 of the Statute of the International Criminal Court addressed the relation between the obligation of State parties to the Rome Statute to, on the one hand, cooperate with the court and, on the other, to comply with other obligations under the international law, in particular with regard to immunity.  The Court may not proceed with a request that would require a State to act inconsistently with its other obligation under international law.  Immunity from national and international criminal jurisdiction was linked, she said, and she called for the next report of the Special Rapporteur to take immunity from international criminal jurisdiction into account to a larger extent.

KONRAD G. BUHLER ( Austria) said the time had come to entrust the “protection of persons in the event of disasters” to the International Law Commission.  Events to be addressed in that context should include disasters of natural and human origin that impacted the natural environment, excluding disasters resulting from armed conflict.  The status of assisting parties raised difficult legal questions, such as third-party liability or compensation for damage caused in the course of assistance.  Further, he said that, initially, the focus should be on response measures, rather than prevention.  He also suggested that, from the outset, disasters with transboundary effects should be included.

Turning to the immunity of State officials from foreign criminal jurisdiction, he said that immunity was primarily a procedural matter before domestic courts.  The definition of immunity did not imply positive duties of States, as it obliged States only to abstain from exercising jurisdiction.  Different categories of persons to be included in the topic should be identified, the kinds of immunities they enjoyed should be classified, and the exceptions to their immunities should be studied.  Further, he agreed that, in the context of the present topic, there was no need to address the issue of jurisdiction, since the question of denying immunity could arise only if there was jurisdiction.  The question of whether immunity ratione materiae or personae could be invoked in case of international crimes should be included for consideration.

RAJEEV SHUKLA ( India) said he agreed that the work on the immunity of State officials should consider only foreign criminal jurisdiction.  Questions relating to immunity with respect to international criminal tribunals and domestic courts should be set aside.  The source of immunity was not international comity but international law; therefore, the focus should be on immunity under international law.  Immunities of officials related to diplomacy should not be included, since that area had already been codified.

He said work on the protection of persons in disasters should include only the scope of natural disasters, since legal regimes already existed for dealing with environmental damage from man-made disasters.  Armed conflicts should also be excluded, since international humanitarian law dealt in great detail with that aspect.  The concept of “responsibility to protect”, in the context of persons affected by a disaster, should not be included, since the primary responsibility to protect in the situation was the province of the State concerned.  The principle of “essential universality of human principles” applied.  The primary focus should remain on protection of persons, but in some situations, protection of property may be necessary for protecting the affected persons.  The multiplicity of actions should be recognized, but, again, the primary role of the affected State must be respected, and all assistance must take place with its consent and under its supervision.  At the present, the articles should take the form of guidelines, rather than a convention.

On the subject of responsibility of international organizations and countermeasures, he said the Commission should take a cautious approach on countermeasures by and against international organizations, in view of the limited practice, the uncertainty surrounding their legal regime and the risk of abuse they would entail.  Disputes between international organizations and their members should, as far as possible, be settled within the rules and internal procedures of the organization.

Finally, on the expulsion of aliens, he said persons holding dual or multiple nationalities must not be treated differently from nationals, and the principle of non-expulsion of nationals must apply to them.  Also, depriving a person of nationality to facilitate expulsion was not justified.

SHIN BOO-NAM ( Republic of Korea), discussing the “protection of persons in the event of disasters”, said recent natural disasters across the world clearly demonstrated the timeliness of the consideration of the subject, and the magnitude of the problems to be addressed.  He noted that many disaster situations involved complex emergencies; it was not always easy to determine whether the cause was natural or man-made. It was feasible, however, to focus initially on natural disasters, and on response in the immediate aftermath.  There could be study at a later stage of prevention and mitigation, on the one hand, and rehabilitation, on the other.  The affected State had a primary responsibility to provide assistance to its people, and its consent was a “sine qua non” in the provision of humanitarian assistance.  The final form of the draft articles should be decided at a later stage; completion of the project would require consultations with major stakeholders, including the United Nations and the International Federation of the Red Cross and Red Crescent.

On the issue of immunity of State officials, he said it seemed reasonable that the Commission would examine only the immunity of such officials from foreign criminal jurisdiction, leaving aside questions relating to immunity with respect to international criminal tribunals and the domestic courts of an official’s own State, or immunity in civil or administrative proceedings before foreign jurisdictions.  He agreed that the Commission would focus on immunity under international law, rather than that under domestic legislation.  He further noted that in light of the judgment of the International Court of Justice in the “arrest warrant case”, Heads of State, Heads of Government and Ministers of Foreign Affairs enjoyed immunity from foreign criminal jurisdiction.

Turning to the item on obligation to extradite or prosecute, he said his delegation was of the opinion that international treaties were basically a recognized source of the obligation.  For the most serious breaches of international law –- genocide, crimes against humanity and war crimes -- it seemed the obligation to extradite or prosecute would need special attention concerning that source.  The obligation and the concept of universal jurisdiction were closely interrelated in some cases, and because they were from different sources of international law, they should be dealt with separately.  Because of the serious nature of the crimes under the jurisdiction of the International Criminal Court, the mechanism for surrendering persons charged with those crimes was sui generis in character.

LIU ZHENMIN ( China) spoke to the protection of persons in the event of disasters, noting that the frequent occurrence of major natural disasters such as hurricanes, tsunamis and earthquakes had caused huge devastation in the affected countries and for their peoples.  Many countries were constrained by limited relief capacity, and were unable to respond effectively by themselves and provide timely and adequate relief to the affected population.  Better international relief needed to be coordinated.

In some cases, he continued, it was impossible to draw a clear distinction between natural and man-made disasters, since some natural disasters may occur as a result of human activities.  Given that natural disasters often struck suddenly and unexpectedly, disaster response was a matter of great urgency, and disaster preparedness, response, and post-disaster reconstruction had distinct characteristics.

He said the Law Commission should focus its attention on natural disasters and give priority consideration to disaster response.  That response was, first and foremost, a State responsibility and obligation, and as such, was covered by domestic laws in many countries.  Victim protection should also be undertaken by the affected country.  The concept of “responsibility to protect” was new and controversial; introducing it into the area of disaster relief would not be helpful to achieving international consensus, but would lead to further confusion.

Turning to the immunity of State officials from foreign criminal jurisdiction, he said the exercise of such jurisdiction often led to tension in relations between the States concerned.  In order to maintain international legal order and stability of inter-State relations, it was necessary for the Commission to pay close attention to the topic of immunity of State officials from foreign criminal jurisdiction, and to further clarify the rules of international law in that area.  State practice and judicial decisions over a long period of time had proven that immunity of State officials from foreign criminal jurisdiction was a widely accepted rule of international law, he added.  Granting such immunity was both a demonstration of the principle of sovereign equality and a necessity, in that it facilitated the discharge of official functions.

On the scope of persons who were covered, he said that Heads of State, Heads of Government, Ministers of Foreign Affairs and other persons of the same ranking should enjoy immunity ratione personae, regardless of whether they were on official duty or not.  Criminal jurisdiction, distinct from civil or administrative jurisdiction, was already in place at the stage of investigation before court trials.  Legal disputes arising from the investigation phase brought much uncertainty to normal inter-State relations as well.  Furthermore, recognition and immunity were connected, but were different categories.  Regarding exceptions to immunity, he said it was necessary for the Commission to adopt a cautious approach on that issue, since exceptions, when inappropriately introduced, would fundamentally negate the legitimacy of the principle of immunity.

CONCEPCIÓN ESCOBAR HERNÁNDEZ ( Spain) said the topic of protection of people in disasters was of great importance, in an area involving broad international principles that arose in practice on the ground.  Those principles needed to be addressed in legal terms, to ensure that needs were met and the rights of all involved protected, including States and the broad range of non-State actors.  Only a rights-based approach would work in elaborating the articles, but the limits to its scope must be defined, so as to avoid duplication and to make the articles practical to implement.  For now, the scope of the articles should be limited to natural disasters; questions such as prevention should be considered later.  Any recommendation concerning form would be premature at present.

She said the protection of officials from foreign criminal jurisdiction was also an important topic.  The distinction between jurisdiction and immunity was useful.  The scope of the articles should be restricted and should not include consideration of tribunals.  However, the principle of non-enforcibility should be considered, and the rules pertaining to immunity relating to tribunals could be useful in defining the scope of the articles currently under consideration.  Finally, the persons or categories of persons who enjoyed immunity should be defined.  As an example, the term for “official” was broader in her language than was implied in the articles.  Another term should be used, perhaps “body” or “entity”.

On the obligation to extradite or prosecute, she said she agreed with calls for studying practice in the field.  No agreement had yet been reached with regard to international jurisdiction and the “triple alternative”.  While there was a distinction between the obligation to extradite or prosecute and universal jurisdiction, the two often overlapped in practice.  The distinction should be clarified.  The triple alternative, referring to the surrender to a third person, such as a tribunal, should be considered further.  Comment on the articles would be withheld until they were further elaborated.

NOBUYUKI MURAI ( Japan) said the scope of the topic of protection of persons in the event of disasters was broad, and a step-by-step process must be developed.  Conflict-related situations should be excluded from the scope of the study, although some disasters may fall into that category.  The key, in response to natural disasters, lay in international cooperation, the mechanisms of which needed to be coordinated.  States affected had the primary responsibility to provide for their populations.

On the extradition or prosecution of foreign nationals, he said that the International Law Commission should accelerate its examination of the crucial question of where, and to what extent, the obligation to extradite and prosecute had become customary in international law.  He said Japan looked forward to the work of the Law Commission at subsequent sessions.  In regard to the immunity of State officials, he expressed interest in the scope of persons who would be involved and possible exceptions, since those were closely related to the fight against impunity, and it was a highly controversial point.

Turning to the topic of reservations to treaties, he said that, in most cases, silence in response to the declaration denoted indifference, rather than approval; therefore, silence in response to interpretative declarations should, in “certain specific circumstances”, be considered as acquiescence.  An in-depth discussion was needed to determine what those specific circumstances might be.

PILAR ESCOBAR ( El Salvador) said the subject of expulsion of aliens was an important one.  Two questions were particularly delicate -- those of dual nationality and of denationalization.  The rule against expulsion of nationals should apply in the situation of dual or multiple citizenship.  The right to citizenship was enshrined in her country’s legislation, and no norms could be upheld if the expulsion of nationals was entailed.  Losing “Salvadoran” citizenship was possible only as an express denunciation by an individual.  The possibility of expulsion upon assumption of another nationality applied only to States that did not recognize dual nationality.

On the obligation to extradite or prosecute, she said it was an important principle in fighting cross-border and organized crime.  Her country’s legislation included the principle of reciprocity with regard to extradition; there were situations in which an extradition request could not be met by States, but the principle must be upheld.  The question of immunity of State officials from foreign criminal jurisdiction involved the codification of international law and was related to rights and responsibilities of officials.  Diplomacy-related officials should not be included in the scope.  The criteria for persons to be included should be defined, rather than exhaustively listed.  The question of exceptions must be approached delicately; drawing up comprehensive criteria may not be useful.

She said the protection of persons in the event of disasters was of particular relevance, not only because it involved protection of human lives, but because of the growing frequency of disasters.  The procedure outlined by the International Law Commission for using a rights-based approach was appropriate.  The focus should be on natural disasters, including post-disaster measures.  Internal legislation should cover legal and practical problems, as in her country, which had a law on the mitigation of disasters.  State activity in relation to disasters should be spelled out in that domestic legislation, including on the question of protection of property and measures to be taken to mitigate natural disasters in line with international instruments.

ALEJANDRO ALDAY ( Mexico) said there was a customary obligation to extradite or prosecute those who had committed international crimes, but it was necessary to study the rights held by States in that regard.  The State being asked was not free to choose between surrendering or prosecuting, but that did not mean that it lacked rights.  Due consideration should be taken of the rights of the detainee, to determine if the State under whose jurisdiction he or she was being held was obliged to extradite or prosecute.

On the issue of natural disasters, he said that, over the last number of years, those had increased, causing the loss of lives and property.  Those occurrences were transboundary in nature, and spread across different legal orders.  It was, therefore, necessary to delineate the points to be touched upon in the analysis to be made by the Law Commission.  That work should be restricted to normal natural disasters.  The sources that would serve as a basis for providing protection for individuals in situations of emergency that derived from human activities were the States affected, international organizations and non-governmental organizations.

JESSICA GLADSTONE ( United Kingdom) noted the too-frequent regularity with which the international community faced disasters that adversely affected large populations.  She said the needs of those affected were best addressed when relief and assistance were coordinated according to appropriate and agreed principles and practices.

To guide the Law Commission’s work, her delegation would welcome the identification of areas of common ground on important aspects of disaster relief:  preventative measures; readiness and capacity-building; the coordination of actors providing assistance; the provision of technical aid and expertise, in addition to assistance to meet the immediate humanitarian needs of affected populations; and reasonable and appropriate cost-sharing arrangements between States providing and receiving assistance.

Her delegation further hoped the Commission would, without duplicating work, take account of the guidelines for post-disaster relief and recovery of the International Federation of Red Cross and Red Crescent Societies.  She said there was no reason to restrict the scope of that topic to natural disasters.  Recognizing the difficulty of distinguishing those from disasters caused by human activity, it was appropriate that the nature, magnitude, imminence and duration of the threat posed by disasters, and the needs of those affected, should be considered, rather than their cause.  However, the protection of persons in armed conflict should remain outside the scope of the Commission’s work, and the developing of principles should not undermine or hinder existing regimes.  The notion of a “right to humanitarian assistance” should also be approached with caution.  Further, the codification or progressive development rules seemed unsuitable in that matter.

On the topic of the immunity of State officials’ from foreign criminal prosecution, she said it gave the Law Commission an opportunity to clarify a matter of real practical concern for States and individuals.  An excellent start had been made by the Special Rapporteur on that topic, and the Commission should not become embroiled in “arid and contentious debates” on what the law should be.  Instead, work should be conducted on the basis of existing international law, with the primary focus on international, not customary, law.

Turning to the obligation to extradite or prosecute, she stressed that either such obligation arose as a result of treaty obligations, and the stage had not yet been reached where it could be regarded a rule or principle of customary international law.  The terms of international agreements should govern both the crimes in which the obligation arose and the question of whether the custodial State had discretion on which should take priority.  If the Commission believed that such an obligation had now arisen, it did so only in relation to a narrow category of offences.  If it moved forward, the Commission should conduct a systematic survey of the relevant international treaties, national legislation and judicial decisions, before drafting articles.  The so-called “triple alternative” should not be considered by the Commission, because specific rules expressly covering the transfer of an international tribunal already existed.

BAIZURA KAMAL ( Malaysia) said the question of the immunity of State officials from foreign criminal jurisdiction was well-settled, in the context of various tribunals by their constituent statutes or by article 27 of the Rome Statute of the International Criminal Court.  The Law Commission should focus on the immunities accorded under international law, in particular customary international law, and not under domestic legislation.  Progressive development, however, should be undertaken in consideration of the actual trend of decisions, even in the International Court of Justice.

She said invocation or waiver of immunity usually occurred pre-trial, and was handled through diplomatic channels.  While establishing criminal jurisdiction was not currently under consideration, executive actions to determine claim to jurisdiction should be considered.  In addition, the availability of immunity in no way absolved officials from the obligation to obey laws of foreign States, and the clarification was helpful that the immunity referred to legal measures of criminal procedure, such as search, arrest or criminal prosecution.

Civil jurisdiction should be considered separately, and the distinction between personal and functional immunity should be retained.  Terminology, such as “public service” and “contractors”, should be clarified.  The question of immunity for officials of a State or entity not being recognized in the country where the immunity issue arose should be analysed, and families should not be included, unless a legal basis for immunity other than comity of nations was established.

On possible exceptions to immunity, she said it was a matter of settled international law that there should be no immunity for the international crimes of genocide, war crimes, crimes against humanity and crimes of aggression.  Further limitations now warranted consideration, for such crimes of international concern as piracy, drug trafficking, trafficking in persons, corruption, money laundering, sabotage, kidnapping and murder by foreign secret service agents, and finally, aerial or maritime intrusion or espionage.

Turning to protection of persons in the event of disaster, she said the rights-based approach was appropriate and involved the three perspectives of the victim, the donor State and non-State actors, and the State of occurrence of the disaster.  A study on the proper balance between the three should be carried out.  The scope should, for now, be limited to natural disasters.  On the issue of the right to provide/impose assistance, the principles of sovereignty and non-intervention should in no way be impugned.  Further, a “responsibility to protect” was related to protection from genocide, war crimes, ethnic cleansing and crimes against humanity.  Using it to invoke authorization of the Security Council’s Chapter VII Powers for “humanitarian interventions” needed further debate.  Existing law should be reviewed.

Finally, she said, the obligation to extradite or prosecute arose from treaties, and not a general obligation under customary international law.  The scope of application should be clarified, regarding terms related to jurisdiction and custody.  In Malaysia, a 1992 Extradition Act included definitions of terms that provided for relevant Ministers to determine whether to grant an extradition request or to refer it to relevant authorities for prosecution.  The nationality of the fugitive offender and Malaysia’s jurisdiction to try the offence would be considered.  A minimum threshold of imprisonment for not less than a year had been determined to apply for an offence to qualify as an “extradition” or “extraditable” offence.

MATTANEE KAEWPANYA (Thailand), on the “protection of persons in the event of disasters”, said it was undeniable that the world was now prone to a series of natural catastrophes, and a legal framework to help victims cope with the before, during and after disaster phases should be urgently put in place.  Noting that a rights-based approach was a useful method in addressing legal issues surrounding this topic, he emphasized sovereignty and non-intervention, as well as the principles of international humanitarian law, human rights law and refugee law.  He said the 2005 agreement of the Association of Southeast Asian Nations (ASEAN) on disaster management and emergency response aimed to provide effective mechanisms to substantially reduce the number of lives lost, and to establish a collective response to disasters.  It took as guiding principles sovereignty, territorial integrity and national unity.  A clear and common understanding of what a rights-based approach means in the context of the work of the International Law Commission was needed.

Turning to the obligation to extradite or prosecute, and calling the question of which part should take priority “perplexing”, he said careful attention should be paid to the newly amended Thai Extradition Act, which came into force earlier this year.  This stated that the obligation to extradite would not arise until an extradition request was duly submitted; if the extradition request met the extradition requirements, it would be granted, but if not, the obligation to prosecute could take effect if the original extradition petition included that additional request.  A refusal to grant an extradition request should be in accordance with the obligation provided for in each bilateral or multilateral extradition treaty.  In the absence of such treaties, he said, Thailand’s legislations served as governing law.  Further, the Thai Government could consider surrendering a person for prosecution or for serving punishment, according to several criteria –- among them, when an extraditable offence was in question and where no extradition treaty existed.  Thai nationals could be extradited in three circumstances:  if extradition was provided for in an existing treaty; if the person being extradited consented; and if the extradition occurred under the condition of reciprocity.  Finally, Thailand believed that a procedural regime for extradition process should be separated from the ordinary rules of criminal procedure.

MARK SIMONOFF (United States), on the protection of persons in the event of disasters, noted his delegations reservations about taking a rights-based approach to the topic, as well as its objections to incorporating the “responsibility to protect” concept into the consideration of the issue.  He said the Law Commission should, rather, focus its study on the areas of the law that would have the most significant practical impact on mitigating the effects of such disasters -- including, for example, developing practical tools that could be used to facilitate coordination among providers of necessary disaster assistance or drafting model bilateral agreements that could be used to facilitate access of people and equipment in affected area in a country.

On the immunity of State officials from foreign criminal jurisdiction, he said the assertion of criminal jurisdiction over the officials of other States implicated some of the most basic principles of international law, notably the sovereign equality of States.  A clear and comprehensive set of rules to govern the immunity of State officials from foreign criminal jurisdiction could prove of enormous benefit to the international community.  However, there was unlikely to be wide support for a set of rules that did not strike the right balance between the State’s interest in having its officials fulfil their duties free from fear of subsequent prosecution for doing so and the interest of another State in prosecuting those whose unlawful conduct caused harm to itself, its citizens, or its territory.

Turning to the obligation to extradite or prosecute, he said the practice of the United States and other countries reinforced the view that there was not a sufficient basis in customary international law or State practice to formulate draft articles that would extend an obligation to extradite or prosecute beyond binding or international legal instruments that contained such obligations.  Rather, States undertook such obligations only by joining binding international legal instruments that contained relevant provisions, and the obligations extended only to other States that were parties to such instruments and only to the extent of the terms of such instruments.  A comprehensive view of State practices in this area was essential to any consideration of whether there was a basis for inferring a customary international legal norm to extradite or prosecute.  An analysis of State practice was crucial in determining how the Commission should proceed, and he urged the Commission, if it continued to believe that the consideration of a customary norm in this area might be warranted, to allow enough time to receive and evaluate information provided by States.

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