Sixty-sixth General Assembly

Sixth Committee

26^th Meeting (AM)

Legal Committee Is Told Immunity of High Officials in Foreign Jurisdiction

 

Must Not Mean Impunity for Commission of Grave Crimes

 

Concern over ‘Balance’ Needed to Preserve Stability in International Relations

As the Sixth Committee today continued its annual consideration of the International Law Commission report, delegates tackled, among others, the complex topic of “immunity of State officials from foreign criminal jurisdiction”, seeking to clarify the balance between the need to ensure stability in international relations and to avoid impunity from grave crimes.

The special sensitivity of the subject, the representative of Germany warned, prohibited the formulation of rules which could contradict necessary ways in which States engaged in international relations.  Rejecting the view that immunity “inevitably” led to impunity, and stressing that the fight against impunity was of paramount importance to his country, he pointed out that exceptions to immunity needed to be clearly founded in customary international law.

Citing cases where the principle of immunity had been upheld by the International Court of Justice and some national courts, and other cases where immunity had been denied, the representative of Italy emphasized that the granting of immunity within national proceedings should result from a careful review of the nature of the crime involved.

The representative of Belgium said such immunity needed to be approached from both existing law (lege lata) and progressive law (lege ferenda).  Traditionally accorded to Heads of State, Government and foreign ministers, immunity was now applicable to other officials but only by specific conventions.  However, when one of those officials committed serious crimes of an international nature — war crimes, crimes against humanity, genocide and crimes of aggression and torture — they could not invoke immunity.

Echoing that, the delegate of Peru underscored the need to recognize the immunity of State officials for the benefit of international relations while fighting impunity, especially with regard to international crimes. 

Thailand’s representative urged the Law Commission to codify existing international law on the immunity of State officials from foreign criminal jurisdiction, and clarify developing trends, especially when related to immunity or non-immunity from the most serious crimes.  The balance between stable international relations and avoiding impunity for the most serious crimes could be found in the Sixth Committee’s discussion of universal jurisdiction, which the delegate of Poland described as interdependent with the subject of immunity as well as “the obligation to extradite or prosecute”.

Also speaking today were the representatives of Norway (on behalf of the five Nordic countries), Switzerland, El Salvador, Greece, Mexico, and Austria.

The Director of the Codification Division of the Office of Legal Affairs addressed the Committee today, as did the Chair of the Working Group on the administration of justice at the United Nations.

The Committee will meet again tomorrow at 10 a.m., 2 November to conclude its annual debate on the International Law Commission’s report.

Background

Continuing its consideration of the annual report of the International Law Commission, the Sixth Committee (Legal) today turned to the `third cluster’ of topics in the Commission’s report — “immunity of State officials from foreign criminal jurisdiction”, “obligation to extradite or prosecute”, “treaties over time” and “most favoured nations clause”.  (For background on the report and themes, see Press Release 3420 of 24 October.)

Also before the Committee today were two draft resolutions on the administration of justice at the United Nations. Action was expected on the code of conduct for the judges of the United Nations Dispute Tribunal and the United Nations Appeals Tribunal (draft resolution A/C.6/66/L.13), and the amendments to the rules of procedure of the United Nations Appeals Tribunal (draft resolution A/C.6/66/L.14).  (For background on the report and themes, see Press Release 3425 Of 31 October.)

Remarks by Codification Division Director

VÁCLAV MIKULKA, Director of the Codification Division of the Office of Legal Affairs, said the Secretary-General had submitted reports to the General Assembly at its last two (64^th and 65^th) sessions, with the view of providing further support to the Special Rapporteurs of the International Law Commission.  The reports, he said, highlighted the role of the Special Rapporteurs and their significance to the Commission.  The reports also conveyed the various sorts of assistance the Codification Division, which served as the Commission’s Secretariat, had provided to the Special Rapporteurs.  That assistance included support to the Commission, from which the Rapporteurs would indirectly benefit, as well as direct support.

He said two earlier reports of the Secretary-General recognized that in the past the Special Rapporteurs had received, on an exceptional basis, research grants and special allowances, called “honorariums”.  Such payments were designed not to compensate the Rapporteurs for the services, but to acknowledge their “priceless contribution” to the Commission.  The Commission had repeatedly drawn the attention of the General Assembly to the impact of its resolution which pegged the honorarium at US$1 per year for each member of the Commission, including Special Rapporteurs.  That issue was brought up again in the Commission’s current report.  He noted that consideration of any option concerning honorariums fell within the competence of legislative organs.

Statements

MARGIT TVEITEN (Norway) speaking for the five Nordic countries, said that in respect of the issue of “immunity of State officials from criminal jurisdiction” the concept of sovereignty was closely linked to that of equality of States, where no State could claim jurisdiction over another sovereign State.  However, when addressing jurisdictional immunities of States and their property, development of law realized that if a State engaged in a commercial transaction with a foreign national or juridical person that such State could not invoke immunity from the jurisdiction of a court of another State.  In an increasingly globalized world, huge numbers of transactions were being carried out by States, which “exposed” them to the jurisdiction of other States’ domestic courts and outside the protection of immunities.  This did not result in a threat to the sovereignty of States.  She urged that a closer look at the developments of law which might “shed light” on the scope of ratione materiae whether a State is party to an international treaty in relation to an official act of a State official, and that such an examination take into account that rules of customary international law changed over time.

She said that the Special Rapporteur had interpreted his mandate as excluding immunity from international criminal jurisdiction.  Nonetheless, she noted important developments relating to international criminal justice which contributed to the “normative production and clarification of rules” with regard to the scope for invocating immunities.  She recognized that there may be a need for a coherent approach to immunity issues, such as when a case was referred from an international tribunal to a national court.  The five Nordic countries were convinced that the Commission should take full cognizance of the relevant resolution in 1946, as well as other sources of law as a broader recognition of crimes against international law, noting that genocide should not be considered an official act under international law or constitute an act in official State functions.

In reviewing the reports of the Special Rapporteur, she said she found that the standard applied to establishing exceptions to immunity were “too strict”.  She urged the Law Commission in its further work on this topic, to study the distinction between acts and situations that required immunity for the purpose of allowing States to act freely on the inter-State level without interference, and those where immunity was not needed for this purpose.

Turning to the topic aut dedere aut judicare, she said the obligation to extradite or prosecute was a “cornerstone in the fight against impunity” which, with the principle of universal jurisdiction, would ensure no safe haven for perpetrators of international crimes.  However, the rules of international law on this issue should be clarified in order to ensure maximum effect.  Addressing the question by the Commission on whether there was a basis in customary international law for this obligation, she said it would be helpful if the Rapporteur and the Commission were to deal more systematically with the identification of core crimes, and investigate further the issue of creation of custom in this field.

On the topic of “treaties over time”, she welcomed an “enhanced reliance” by adjudicatory bodies operating on the basis of different competences, pursuant to the relevant treaties on the general rule of treaty interpretation.  With regard to the “most favoured nation clause”, she encouraged the ongoing efforts to methodically promote the identification of the normative content of such clauses which might contribute to a greater coherence of international law in this field.  She urged the Commission to complete work on this topic before moving on to new related topics.

NIKOLAS STÜRCHLER (Switzerland), speaking first about the immunity of State officials from foreign criminal jurisdiction, said the topic needed to be examined differently, depending on whether the proceedings fell under a national or international court.  Although the International Criminal Court set limits on the invocation of immunities, this limitation did not apply under national courts.  In that regard, equality between States and the stability of international relations must be guaranteed.  An examination of regulations covering the privileges and immunities of State officials needed to consider the many headquarters agreements concluded between host countries and organizations within their territories.  It would be inappropriate if general rules on the matter limited the scope of these agreements or made them difficult to interpret.  The Commission should fill existing “gaps” by determining which customary international law rules still needed codification and the creation of new rules in unregulated areas.

Addressing the topic of the “obligation to extradite or prosecute”, he said that any analysis which did not take into account the question of universal jurisdiction would not express a “full and consistent understanding” of the issues involved.  Regardless, the Committee’s Working Group on universal jurisdiction would need to take into account the questions tackled by the Commission on this matter.

On the most-favoured-nation clause, he said the clause was relevant in ensuring equality in competitive conditions between foreign investors of different nationalities.  The scope of the clause in foreign investment, however, was much broader than in the context of trading certain goods and services.  He supported drafting a report on shared understanding of key aspects of the clause as well as further work on the relationship between the most-favoured nation and national treatment and fair and equitable standards.  In that regard, it would be worthwhile to identify why arbitral tribunals lacked a systematic approach when interpreting and applying the clauses, particularly by examining how those tribunals interpreted and applied the Vienna Convention.

Finally, he turned to the new topics endorsed by the Commission for its long-term programme of work.  On the first, “the fair and equitable treatment standard”, he said that although this standard deserved further study, he wondered if it was feasible to achieve an understanding shared by a majority of States.  The Commission should arrive at a clear and common view about the intended final product before moving into a more substantive debate.

On the topic “formation and evidence of international customary law”, he said flexibility remained an integral feature of that process.  It would therefore be difficult to systemize a process through which customary rules were formed “without sapping the very essence of custom”.  As to the “protection of the environment in relation to armed conflict”, he said this needed close cooperation with the International Committee of the Red Cross.

JOAQUĺN ALEXANDER MAZA MARTELLI ( El Salvador) said that it was essential to adopt all measures to prevent impunity for serious crimes, such as genocide, war crimes and torture.  The obligation to extradite or prosecute and universal jurisdiction played fundamental roles in this matter, with each keeping within its own characteristics.  On a national level, his country was governed by bilateral and multilateral agreements which contained clauses on extradition.  These were put in place to cover a wide range of crimes, and he underscored that the obligation to extradite or prosecute was a method of judicial cooperation which was very broad in scope.  He said States would cooperate with each other and would respect the competence of international tribunals in fighting impunity in crimes that were international in nature, and keeping the principle of the obligation.  He was in favour of recognizing customary law and treaties in order to recognize the obligation.

He said the discretion of the prosecutor and the discretion of the accusing entity was not a principle in criminal law.  Therefore it was important in this category that the principles of human dignity, minimal intervention and legality, among others be present.  He said the draft articles on the subject should reflect a solid vision, based on a thorough analysis on the nature and characteristics of those principles.

PHANI DASCALOPOULOU-LIVADA ( Greece) said the topic of “immunity of state officials from foreign criminal jurisdiction” had not yet found “its reflection on any normative text”.  The Vienna Conventions of 1961 and 1963 dealt with the specific categories of diplomatic and consular personnel, respectively.  At the same time, because of developments in the last two years, it was necessary to examine the issue and identify trends.  She noted from the Special Rapporteur’s report on substantive matters that he had identified and rejected five exceptions to the rule of immunity.  Her delegation supported the notion that international law that prohibited and criminalized certain acts prevailed over the norms concerning immunity, and therefore rendered such immunity invalid.  Impunity could not be tolerated, irrespective of the status of the perpetrator of an international crime, she said.  She stressed that “immunity does not mean impunity”.

She observed that in the Statutes of the ad hoc tribunals for the former Yugoslavia and for Rwanda there was nowhere any mention of immunity from criminal jurisdiction for State officials.  In the texts of the Statute of the International Criminal Code, as well as the Conventions for the Suppression of the crime of Genocide and the Convention against Torture there was no differentiation drawn between the treatment of persons enjoying personal immunity and those covered by functional immunity only.  These were all strong indicators of a movement to ban immunity for egregious crimes.  There was “no doubt that a culture of accountability” was in the making.

MAURO POLITI ( Italy) thanked Special Rapporteur, Mr. Kolodkin, for his second and third reports on the subject of “immunity of State officials from foreign jurisdiction”.  While the Rapporteur had concluded that there was not evidence of an emerging norm of international law that would justify exceptions to the immunity of State officials from foreign criminal jurisdiction, a variety of opinions were expressed on that matter during the Law Commission’s debate.

Citing cases both where the principle of immunity had been upheld by the International Court of Justice and some national courts and others where it had been denied, the representative of Italy said he was of the view that State practice and national and international case law had a significant impact on the principle of immunity.  He said ad hoc and hybrid criminal tribunals, as well as the International Criminal Court had applied the rule, already set up in Nuremberg, of “the irrelevance of official capacity of a person for the exercise of criminal jurisdiction over him or her”.  When working on the topic, the Commission should consider international practice in its entirety and its impact.  He was also of the view that the granting of immunity within national proceedings could only be the result of a careful review of the nature of the crime involved.

Turning to the “obligation to extradite or prosecute”, he said that this principle was a normative mechanism intended to fill gaps that might allow those responsible for the most serious crimes to escape prosecution and punishment.  He expressed doubts about the formulation of distinct articles, at this stage, in relation to the sources of law involved.  A detailed analysis, including substantial and procedural aspects, of international practice was required to assess the extent to which the principle was embodied in existing international legislation.

Commenting on the five proposed new topics endorsed by the Commission for its long-term programme of work, he said those concerning the protection of the environment and atmosphere deserved the most attentive consideration, particularly in light of increasing concerns among the international community about environmental issues.  The issue of provisional application of treaties was equally suitable, with a view toward clarifying and supplementing existing legislation.

KRIANGSAK KITTICHAISAREE ( Thailand) said the Law Commission should codify existing international law on the immunity of State officials from foreign criminal jurisdiction, and explain the developing trends, especially trends related to immunity or non-immunity from the most serious crimes.  The final product of those deliberations should strike a balance between stable international relations and avoiding impunity for the most serious crimes.  He reminded the Committee that while immunity served as a procedural bar to criminal prosecution, impunity absolved individuals from criminal responsibility.  Whereas immunity over official acts belonged to the State concerned, that State could not act without accountability.

He said international instruments on the repression of international crimes, such as the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, rejected the absolute immunity of State officials.  Beyond treaty obligations or obligations imposed on States by the Security Council, several States exerted universal jurisdiction over certain grave crimes.  The fundamental question for the Commission was therefore how the right balance could be struck; the answer could be found in the Sixth Committee’s discussion of universal jurisdiction.  In that context, the judgement of the International Court of Justice, which recognized the absolute immunity of Heads of State, Government and foreign ministers, should be followed until customary international law “had crystallized to the contrary.”

On the obligation to extradite or prosecute, he said there was a need to differentiate between categories of crimes subject to the obligation to extradite or prosecute and those which were not.  That obligation, he said, arose mainly from treaty obligations.  He therefore had strong reservations about draft article 4, which cited international custom as the source of the obligation.  He pointed out that Thailand adopted a “dualist approach” to international law, whereby international norms were not legally enforceable as part of domestic law.

Lastly, he noted that the “most-favoured-nation clause” was of practical significance, where in a globalized world, international investment agreements were more important than ever.  He was therefore supportive of the Commission’s work that sought to prevent fragmentation of international investment agreements by ensuring greater coherence in the approach taken by arbitral tribunal decisions, particularly regarding their application of the most-favoured-nation clause.  These efforts would contribute to greater certainty in investment law and security and predictability for foreign investors and States.

JUAN MANUEL SÁNCHEZ ( Mexico) said the Commission’s study of “treaties over time” was important and timely.  Treaties were integral to forging international law and friendly relations between States.  It was necessary to realize how treaty law was affected by the dynamic nature of those State relations.  He was of the view that the Commission should consider modification of its working methods, adopting proceedings along with the new appointment of a Special Rapporteur.

Turning to the “most-favoured-nation clause”, he said the Commission should conclude its work on this topic during the next two sessions.  The study group looking at the clause should aim to establish a mechanism which would safeguard against the fragmentation of international law, and contribute to greater coherence among arbitral decisions and greater certainty in investment law.  He said the work of the study group was useful in highlighting different areas of case law that made it possible to invoke the clause, particularly given the lack of consistency in the reasons among arbitral tribunals for applying the clause.  In his opinion, the interpretation of the clause should aim to maintain general balance between protection of the investor and necessary space for the State receiving the investment.  He also felt that the source of the right to the clause should be found in the primary treaty between parties concerned and not in a third-party treaty.

In closing, he said the final product of the study group should be a report providing a background on the problems that had arisen and trends in practice, including formulation of reservations and model clauses.

EDUARDO FERRERO COSTA ( Peru) on the “immunity of State officials from foreign criminal jurisdiction” said a balance was needed between the recognition of immunity for State officials toward the development of international relations and the need to fight impunity, especially with regard to international crimes.  Immunity from jurisdiction was a legal matter and did not affect the substantive norms.  It did not imply impunity or exoneration from liability of the individual.

He spoke of the timing of invoking immunity, and said he shared the Special Rapporteur’s view that these issues should be resolved as quickly as possible in the initial phase or the instructive phase.  The State that claimed to have jurisdiction should report as soon as possible its desire to prosecute a foreign State official.  Here, communication of States that claimed jurisdiction should be done clearly in writing and through diplomatic channels.  Besides heads of States, Governments and foreign ministers, the determination of which State officials would be covered by rationae personae, (nature of the jurisdiction) due to their official function, was very ambiguous and it “possibly and practically cover[ed] any official of a State”.  States of such officials needed to investigate the situation.  However, foreign courts would not be obliged to blindly accept these statements, nor could they ignore them.

Turning to the “obligation to extradite or prosecute”, he said it might be worthwhile if the study could be broader, and tackle the issue of how States reacted to it.  He also noted that throughout the fourth report of the Special Rapporteur the term “principle” referred to the obligation; he suggested that it might be appropriate in order to be consistent that “obligation” be a better term than “principle”.  He then stated that the main issue addressed the sources of this obligation, and whether the obligation emerged as a norm from custom or treaty.  In this regard, this should be preceded by an analysis of the primary source in order to understand if its application stemmed from that.

CEDRIC JANSSENS DE BISTHOVEN (Belgium) reiterated that the Commission should take the approach of promoting the progressive development of international law and its codification, approaching “immunity from criminal jurisdiction” from an approach of lege lata (the law as is) and lege ferenda (what the law should be).  The Commission should first review existing rules of international law and then concentrate on disputed matters.  Progressive development of this area of law could occur within the scope and modalities of ratione personae (nature of jurisdiction) in international law.

In his view, immunity was traditionally accorded to Heads of State, Government and foreign ministers; for other officials it was recognized only by specific conventions.  Concerning immunity ratione materiae, when one of those officials committed serious crimes of an international nature — war crimes, crimes against humanity, genocide and crimes of aggression and torture — they could not invoke immunity.

International crimes, such as these, and extraterritorial jurisdiction in relation to them, were new arrivals in the field of public international law and State immunity ratione materiae could not exist with them.  The exercise of extra-territorial jurisdiction overrode the principle that one State would not intervene in the internal affairs of another.  An international crime was as offensive, if not more offensive, to the international community when committed under the “colour of office”.

In continuation, she said that ratione personae should be reviewed in light of agreements between States.  State parties to a treaty should refrain from invoking immunity if the treaty had excluded it.  In that regard, a host state could not violate pre-existing obligations, such as the duty to cooperate under international jurisdiction.  She said that in Belgium immunity from criminal jurisdiction was dealt with through international customary law.

EWA MAŁYS ( Poland) said differences of opinion on two matters had prevented the Commission from developing a uniform position on the subject “immunity of State officials from foreign criminal jurisdiction”:  the scope of immunity of a State official and the question of exceptions to the role on immunity.  Regrettably, until now, there was no proposal concerning draft articles, which could codify international customary rules.

Welcoming the two reports of the Special Rapporteur on the topic, she reminded the Committee of the interdependence as well as the similarities and differences between the subject of immunity at hand, the topic of universal jurisdiction, and the principle “the obligation to extradite or prosecute”.  Regarding the Commission’s approach to considering the immunity of State officials, she preferred a combination of considering the law as it currently exists (lex lata) and what the law should be (lege ferenda).

Speaking on “the obligation to extradite or prosecute”, she said the fourth report of the Special Rapporteur on the matter addressed mainly the question of its sources, focusing on treaties and customary law.  One draft article rightly introduced a new element concerning the duty to cooperate in the fight against impunity.  The adoption of the Rome Statue of the International Criminal Court, she said, was an important step to identifying other possible customary bases for the application of the principle.  The Statute’s legal classification of genocide, crimes against humanity and war crimes as those which were within every State’s criminal jurisdiction could be recognized as customary rules in this context.

She encouraged States to comment further on whether in their legislation and domestic tribunals there were certain crimes or categories of crimes for which the obligation had been implemented; in that regard, had a court or tribunal ever relied on customary international law?  The Commission should continue its work on this “complex” topic, specifically by further analyzing international and national laws.

Concerning “treaties over time”, she said the perusal of international judiciary decisions confirmed that the topic should be regulated by the Vienna Convention.  The Commission should at this time prioritize the compilation of domestic court decisions, which could be seen as a part of State practice.  This compilation would be feasible within a relatively short period of time.

CATHERINE QUIDENUS ( Austria) said States were increasingly confronted with cases involving possible criminal immunity.  As international law did not offer “complete responses” to questions concerned with the issue, States might come to different answers.  The Commission should therefore focus on the identification of existing rules being applied.  Once those rules had been identified, the Commission could propose new rules based on developments.  She said she was of the view that only Heads of State, Government and foreign ministers enjoyed absolute immunity.  This did not exclude, however, immunities accorded under other conventions and agreements.

As far as crimes for which immunity should be excluded, she said that State officials should generally enjoy immunity in exercise of their functions; any restrictions constituted an exception.  A State official, however, could not invoke immunity if he or she had committed serious international crimes.  These exceptions from immunity could not be applied if immunity was based on a special treaty regime or on a comparable rule of customary law.  The solution offered by the Institute of International Law, in that regard, was worth considering:  that States should waive immunity when the official was suspected of having committed a serious international crime, or when exercise of his or her function was not likely to be impeded by the measures which authorities might take in response.

Turning to other subjects within the Commission’s “third cluster”, she said the “obligation to extradite or prosecute” did not exist under customary international law and could only be derived from treaty or domestic law.  In Article 4 on international custom she was therefore unconvinced of the reference to jus cogens (higher law) as being applicable in this context.  On “treaties over time”, she concurred with most of the conclusions elaborated by the working group on the matter, including the need to distinguish between different types of treaties according to their substance, object and purpose.

MARTIN HUTH ( Germany) said that the debate within the Commission revolved around whether, with regards to “immunity of State officials from foreign criminal jurisdiction” efforts should be confined to lex lata or if drafts provisions should be based on de lege ferrenda (anticipated law).  He agreed with the Special Rapporteur’s emphases on relevant practice of States, international organizations and international courts, thus making this topic appropriate for codification and not for progressive development.  The special sensitivity of the subject prohibited the laying down of rules which could be in contradiction to what States considered to be necessary for the conduct of international relations.  Further, State practice in this area was often formulated by decisions by courts and not governments, courts being independent and having the responsibility to apply the law, including international law, as it stood.  When applying international law, courts needed a predictable and undisputed framework of rules.

On the question of whether there were exceptions to the principle of immunity, he said he shared the Special Rapporteur’s stance that such exceptions needed to be clearly founded in customary international law, with an extensive analysis of relevant State practice when discussing possible exceptions to this principle.  He rejected the view that immunity “inevitably” led to impunity, stressing that the fight against impunity was of paramount importance to his country; state officials who had committed unlawful acts were fully responsible, also under criminal law, according to the laws of their own states who were responsible for exercising their jurisdiction.  Furthermore, there was the possibility of a waiver.

In the cases concerning grave crimes, where the traditional mechanisms did not function, he said there should be an especially careful approach, maintaining the “delicate balance” between the need to ensure stability in international relations and the need to avoid impunity from grave crimes.

He said the topic of “treaties over time” would become one of the most important subjects in the future work of the Commission.  Elucidating the role of subsequent agreement and subsequent practice was of particular importance, as major treaties aged and their context changed.  Many international treaties, both bilateral and multilateral, could not be amended easily.  Yet, they needed to fulfil their function.  Subsequent agreement and subsequent practice were means of interpretation, and had not been sufficiently explored so far.  The nine preliminary conclusions from the Study Group were a valuable basis for further elaboration on this topic and he supported the designation of a Special Rapporteur on the matter, as well as States providing relevant state practice to the Commission for better understanding on the subject.

Remarks of Working Group Chairman

KRIANGSAK KITTICHAISAREE ( Thailand), Chairman of the Working Group on the administration of justice at the United Nations, gave a supplementary oral report on the draft letter to the President of the General Assembly.  Based on comments of delegates during informal consultations, he said, a new draft letter had been circulated which reflected requested changes, which he addressed specifically to the Committee.  The Committee then approved the contents of the new letter.

The Committee is expected to act tomorrow on the two draft resolutions related to the matter.

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