General Assembly Distr.: General 31 March 2008
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United Nations A/CN.4/596 General Assembly Distr.: General 31 March 2008 Original: English International Law Commission Sixtieth session Geneva, 5 May-6 June and 7 July-8 August 2008 Immunity of State officials from foreign criminal jurisdiction Memorandum by the Secretariat 08-29075 (E) 141108 *0829075* A/CN.4/596 Summary The present study, prepared by the Secretariat at the request of the International Law Commission, is intended to provide a background to the Commission’s consideration of the topic “Immunity of State officials from foreign criminal jurisdiction”. The study examines the main legal issues that arise in connection with this topic, both from classical and contemporary perspectives, also taking into account developments in the field of international criminal law that might have produced an impact on the immunities of State officials from foreign criminal jurisdiction. Three limitations to the scope of the study need to be emphasized. First, the study only deals with immunities of those individuals that are State officials, as opposed to other individuals — for example, agents of international organizations — who may also enjoy immunities under international law. Furthermore, the study does not cover certain categories of State officials such as diplomats and consular agents, since the rules governing their privileges and immunities have already been a subject of codification. However, reference is made, as appropriate, to such rules where they might provide useful elements in addressing certain issues on which practice regarding the individuals covered by the present study appears to be scant. Secondly, the study is limited to immunities from criminal jurisdiction, as opposed to other types of jurisdiction such as civil. Nevertheless, elements of State practice, including domestic judicial decisions, in the field of civil jurisdiction have been taken into account to the extent that they might be relevant in addressing certain aspects relating to the legal regime of immunities from criminal jurisdiction as well. Thirdly, the study is concerned with immunities from foreign criminal jurisdiction, namely immunities enjoyed by State officials before the authorities of a foreign State, as opposed to immunities enjoyed by them in their own State, or immunities before international courts or tribunals. In this respect, the treatment of immunities before international courts or tribunals has been addressed from the perspective of its historical development and potential impact on the legal regime of immunities before foreign domestic jurisdictions. The present study is divided into two parts. Part One provides, largely from a historical perspective, a general background overview and context in which immunity of State officials has arisen and has been invoked. This part comprises four sections. Section A seeks to provide the definitional range by which the term “State officials” would be employed, while section B provides an overview of the notion of jurisdiction — including criminal jurisdiction — which is closely linked to that of immunity. Section C is devoted to addressing the concept of immunity in its diverse manifestations. Diplomatic immunities and the doctrines of State immunity are in particular distinguished to delineate the scope of the present study, and an overview is given of the way in which the Commission dealt with “sovereign and head of State immunity” when elaborating the draft articles on jurisdictional immunities of States and their property. This section also deals with concepts such as non-justiciability and the act of State doctrine, which appear to be related to immunity — at least to some extent, as they may prevent the exercise of adjudicatory jurisdiction over a dispute involving a foreign State or an official thereof. Finally, section D considers developments whereby immunity issues have been addressed in relation to efforts relating to the establishment of international criminal jurisdiction. 2 08-29075 A/CN.4/596 Part Two is the substantive part and consists of three sections. It describes the scope and implementation of the immunity of State officials from foreign criminal jurisdiction in light of international treaties, relevant elements of State practice (including domestic legislation and judicial decisions), international jurisprudence and the legal literature. This part proceeds on the basis of the distinction, which appears to be widely recognized, between immunity ratione personae and immunity ratione materiae. Section A addresses questions relating to immunity ratione personae. Such immunity, which appears to cover acts performed in an official capacity as well as private acts, including conduct preceding the term of office, only accrues to incumbent officials holding high-ranking positions within the structure of a State — primarily heads of State or Government, but possibly also other officials such as ministers for foreign affairs, as recognized by the International Court of Justice in its judgment in the Arrest Warrant case. Thus, this section addresses the question of the individuals covered by such immunity, including the determination of the status of the individuals possibly entitled thereto; the potential role of recognition, or lack thereof, of State or Governments in the granting of immunity ratione personae; the situations in which immunity ratione personae operates (in particular, the question whether such immunity also applies when the individual finds himself in the territory of a foreign State on a private visit); the specific situation of heads of State in exile; as well as the possible granting of immunity ratione personae to the family members or the entourage of the individual concerned. This section also discusses the question whether immunity ratione personae might be subject to an exception when the alleged criminal conduct constitutes a crime under international law. While the International Court of Justice has denied, in the Arrest Warrant case, the existence of such an exception as regards the immunity from foreign criminal jurisdiction of an incumbent minister for foreign affairs, and while certain elements of State practice — including national judicial decisions — would seem to support the Court’s finding, some scholars have suggested possible exceptions, in particular in situations where the granting of immunity ratione personae would entail a serious risk of impunity. Section B considers immunity ratione materiae, namely immunity that attaches to acts performed by State officials in the discharge of their functions, as opposed to private acts. Several questions are addressed in this section, including: the criteria for distinguishing between official and private acts; the treatment of ultra vires acts; the question of the relevance of the distinction between acta jure imperii and acta jure gestionis; whether such immunity also covers acts performed by a State official in the territory of a foreign State; and the individuals possibly enjoying immunity ratione materiae, including the situation of former officials, officials of unrecognized States or Governments, as well as officials of a State that has disappeared. This section then addresses the question whether an exception to immunity ratione materiae has emerged in respect of crimes under international law. In this context, attention is drawn to recent developments in the field of international criminal law (in particular, the principle according to which the official status of the perpetrator of an international crime does not exempt him or her from criminal responsibility), to the findings of international and domestic courts, and to the doctrinal debate on the rationale, the nature and the possible extent of such an exception. Finally, the study addresses the question of possible exceptions to immunity ratione materiae in respect of crimes of international concern that would not yet have acquired the status of crimes under international law. 08-29075 3 A/CN.4/596 The final section C focuses on the procedural aspects relating to the implementation of the immunity of State officials from foreign criminal jurisdiction. This section addresses several questions such as the invocation and the determination of immunity; the legal effects of the operation of immunity (including the relationship between immunity from jurisdiction and immunity from execution and inviolability; the question of the immunity of State officials who are not themselves accused of a criminal act; and the identification of the acts precluded by the operation of immunity). This section also discusses issues relating to the waiver of immunity such as the form of waiver, whether express or implied, the authority competent to waive immunity and the legal effects of a waiver. Given the relative paucity of State practice on these questions, reference is frequently made to the solutions that have been applied in the field of diplomatic immunities as well as State immunity. 4 08-29075 A/CN.4/596 Contents Paragraphs Page I. Introduction ......................................................... 1–4 8 II. Part One. Background and context: Definitional issues concerning the scope of the study and related developments surrounding the subject .................. 5–87 9 A. State officials.................................................... 5–6 9 B. Concept of jurisdiction ............................................ 7–13 11 1. Criminal jurisdiction ......................................... 9–12 12 2. International cooperation for the exercise