Functional immunity of foreign State officials in respect of international crimes before the Hague District Court: A regressive interpretation of progressive international law

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On 29 January 2020, the District Court of The Hague rendered a possibly momentous judgment that may reverse an international trend to deny functional immunity to State officials in respect of allegations of international crimes. The reader may be aware that the International Law Commission (ILC) has acknowledged this trend in Article 7 of its Draft Articles on Immunity of State Officials from Foreign Criminal Jurisdiction (“ILC Draft Articles on Immunity 2017”). The Dutch judgment, if upheld on appeal, may now usher in a return to the traditional position that State officials, just like the State itself, enjoy functional immunity in respect of all official acts, regardless of the nature of these acts. The judgment is all the more surprising as the Dutch Government itself has been a vocal supporter of an exception to functional immunity when it comes to international crimes. Incisively, the District Court held in this respect that it ‘must apply customary international law and is not bound by the opinion of the Dutch government’.

The Hague District Court’s judgment pertained to a civil complaint initiated against the supreme commanders of the Israeli army and the Israeli air force by a relative of a number of Palestinians killed by an Israeli airstrike in 2014. According to the claimant, the airstrike amounted to an international crime. He was of the view that his claim was sufficiently closely connected to the Netherlands since he holds Dutch nationality and resides in the Netherlands, and thus that jurisdiction could be established on the basis of ‘forum of necessity’. Under Dutch law, this principle confers jurisdiction on Dutch courts in cases that have a sufficiently strong nexus with the Netherlands, and regarding which it is unacceptable to require that the claimant submit the claim to a foreign court (Article 9(c) Dutch Code of Civil Procedure). However, eventually, the Court did not (have to) address the jurisdictional issue, as it disposed of the case on immunity grounds. It held that the commanders enjoyed functional immunity from jurisdiction as they conducted military operations in an official capacity. The Court held that there was no customary norm which abrogated this immunity in respect of allegations that an international crime has been committed.

It is recalled that functional immunity of foreign state officials is governed by customary international law. Recently, the ILC has attempted to codify (and to progressively develop) relevant rules in the ILC Draft Articles on Immunity 2017. In Article 7 of the ILC Draft Articles on Immunity 2017, a majority of ILC members agreed on the following limitation of functional immunity (immunity ratione materiae) in respect of international crimes: ‘Immunity ratione materiae from the exercise of foreign criminal jurisdiction shall not apply in respect of the following crimes under international law: (a) crime of genocide; (b) crimes against humanity; (c) war crimes; (d) crime of apartheid; (e) torture; (f) enforced disappearance.’ However, Article 7 was particularly controversial: critics stated that the ILC took its wishes for reality, as the rule was not backed up by sufficient State practice.

This lack of consensus at the ILC has now come back to haunt its codification effort. While the ILC justified codifying the immunity exception in Article 7 because there was a discernable trend, the Hague District Court interpreted the trend to deny functional immunity as lex ferenda rather than lex lata. This shows that the ILC’s mission to progressively develop international law may well backfire: does progressive development not reinforce rather than upend the status quo? As debates in legal practice will naturally tend to coalesce around the ILC’s work, the ILC’s explicit statement that a rule amounts (only) to progressive development of the law, may precisely be a red alert for more conservative-minded judges.

From a positivist perspective, it may be understandable that the Court was not willing to equate a trend in State practice with a general State practice, as required for the existence of a norm of customary international law. However, on closer inspection, there was in fact no need for the Court to engage at such length with the work of the ILC, and to inquire whether a customary exception had crystallized in respect of international crimes. After all, the ILC’s work is limited to functional immunity of State officials in criminal proceedings, whereas the case before the Hague District Court was a civil one. Instead of ruling that functional immunity does, as a general matter, not apply to international crimes, the District Court may have wanted to limit the scope of its ruling to civil matters only. It could have done so by just relying on the judgment of the European Court of Human Rights (ECtHR) in Jones v United Kingdom (2014), in which the ECtHR decided that functional immunity of foreign State officials applied to civil claims based on allegations of torture, while stopping short of ruling that such immunity also extended to criminal proceedings. In fact, in Jones, the ECtHR admitted that different rules may apply to criminal as opposed to civil proceedings. As such, it distinguished the Pinochet decision of the UK House of Lords from Jones: in criminal proceedings, functional immunity may be abrogated on the grounds that the UN Torture Convention obliges States Parties to exercise jurisdiction.

One may take issue with the distinction made by the ECtHR (see here for my critique of Jones), but it is undeniable that, for purposes of upholding or rejecting immunity, it laid down an important distinction between civil and criminal proceedings. Why the District Court collapses this distinction is not fully explained. In a sibylline manner, the Court states that ‘[i]n the absence of a sufficiently detailed rule of customary international law in the prosecution of international crimes before national courts, there can be no one-to-one extension or analogous application [from criminal to civil proceedings]’. What the Court may have meant is that the international law of immunities does not make a distinction between criminal and civil proceedings, and that functional immunity applies across the board, regardless of the domestic characterization of particular legal proceedings. The upshot is that, at least in the Hague District Court’s view, State official (functional) immunity from jurisdiction extends to all international crimes, whether the claims are based on criminal or tort law.

The consequences of this decision, if followed on appeal and by courts in other jurisdictions, are far from negligible: upholding State official immunity in respect of international crimes renders (quasi-)universal jurisdiction largely ineffective. Very often State officials are prosecuted or sued under the universality principle (or the principle of forum of necessity in civil cases), whereas, per the District Court’s judgment, these officials would simply enjoy immunity on the grounds that international crimes are official acts. The District Court gave a small foretaste of what may be about to come, where it refused to ‘delve deeper … in the discussion on the Dutch criminal law [cases brought under the universality principle] as alleged by [claimant], as these do not reflect the current status of customary international law’. In other words, even if, in the past, immunity may have been rejected in those cases (perhaps validly), under current international law, such immunity has to be respected. From an accountability perspective, this evolution is clearly undesirable, as it opens up a glaring impunity gap. It is hoped that, if an appeal is filed, an appeals court at least limits the scope of immunity to civil matters. Alternatively, the Dutch Government, which, as mentioned, is a staunch supporter of an exception for international crimes, may want to step in and amend the law along the lines of Article 7 ILC Draft Articles on Immunity 2017. Ultimately, for a State to reject foreign State official immunity regarding international crimes need not violate international law. Rather, such a State moves in a grey area not fully governed by international law that allows them to reject immunity on the grounds that such furthers anti-impunity norms which are an integral part of the international legal order.

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Kishor Dere says

March 2, 2020

This judgment draws attention to the critical nature of issues like 'functional immunity' and 'international crime'. The Hague District Court in para 4.21 of its judgment notes that ‘international crime’ is not a well-defined concept with standard ingredients. Usually, it refers to genocide, serious human rights violations, and violations of international humanitarian law. The claimant had based his claims in the principal action on these crimes. In absence of actual content of this concept and the appropriate qualification of the violation of the norm, as understood by the claimant in the principal action, the court declined to discuss it.
The District Court in para 4.11 of its judgment looks at the issue of 'functional immunity from jurisdiction'. It points out that this kind of immunity is connected to the "acts carried out by an office holder in the performance of their duty". The judgment points out that even former office holders can assert this form of immunity, linked to such an act. The court rightly states that functional immunity from jurisdiction saves us from a situation in which "State immunity can be circumvented by holding government officials responsible". This as well as other pertinent case laws may influence future codification efforts on Article 7 of the Draft Articles on State Immunity. Lex lata and lex ferenda discourse will keep everybody engaged.

Dire Tladi says

March 2, 2020

Thank you so much for bringing this case to our attention.

I would, however, caution against bringing Draft Article 7 of the ILC draft articles into this discussion. I have yet to read the Dutch case but from both the main post by Cedric and the first comment by Kishor, this case concerns civil proceedings.
In my own work, third report on Jus Cogens (A/CN/4/714), (2019) 32 Leiden Journal of IL 169 and elsewhere, I have tried to point out that the law relating to immunity in relation to civil proceedings is different than the law on immunity to criminal proceedings. Different considerations are at play and the practice certainly differs. In relation to criminal matters, the current prosecutions by Germany and France of former Syrian officials is, I think, accurately reflective of the state of the law.

Heiko says

March 4, 2020

One day new law must have started. But maybe the equality of states can do much more for peace than punishment. Punishment as some sort of humanitarian intervention. Par in parem not habet iudicium, see Koroma in Germany v. Italy. Maybe the most basic norms are the most important. And what was good for Germany cannot be bad for Syria. Maybe Syria had even better reasons. Cum grano salis.

Kriangsak Kittichaisaree says

March 4, 2020

I agree with Dire completely.

Arron says

March 6, 2020

Interesting if odd case, which to be fair to the post's author is the source of the Article 7 discussion.
However, if I was a state moving into a 'grey area' I'm not sure an anti-impunity norm of international law would be the strongest leg to stand on as that further characterizes the grey practice as exceptional (as opposed to e.g. the rationale of immunity not extending to such conduct)? It is also noteworthy that those supportive of functional immunity being preserved for international crimes also argue on the exact same basis i.e. sure, there's an anti-impunity norm but procedural immunity does not equate impunity. The lack of certainty and possible disputes arising from grey areas are unlikely to be resolved anytime soon if both sides use the same argument to support diametrically opposite positions.

Micaela Frulli says

March 6, 2020

I agree with the fact that it is wrong to refer to the ILC work that deals with functional immunity of state officials from criminal jurisdiction. However, as argued elsewhere, the downside is that the work of the ILC does not shed light on the conceptual nature of the rule providing for the irrelevance of official capacity where there are allegations of international crimes and this does not help to dispel ambiguities characterizing the issue and it triggers a few reflections. Does this rule embody an exception to the customary rule on immunity ratione materiae accruing to state officials or is it, instead, an autonomous rule complementing the one establishing individual criminal liability for some categories of crimes? The language used by the ILC in different draft articles on various topics is not consistent.
In Draft Article 6, paragraph 5 of the Draft Articles on Crimes against Humanity, the official position of an accused is not a ground for excluding criminal liability. This follows the Nuremberg Principles and both versions of the Draft Code on Crimes against Peace and Security of Mankind, which do not mention the words ‘immunity’, ‘exception’ or ‘limitation’. It seems thus that it is considered as a corollary rule complementing the rule establishing individual criminal liability for crimes against humanity. On the other hand, while Draft Article 7 of the Draft Articles on Immunities of State Officials from Foreign Criminal Jurisdiction refers to immunity ratione materiae and states that it ‘shall not apply’ to a precise list of crimes, it does not clarify whether the idea of an exception is accepted or rejected.
I think that some ambiguities could be dispelled. In the first place, it should be explained that the irrelevance of official capacity and the unavailability of functional immunity for those suspected of crimes under international law are one and the same thing and cannot be invoked before any kind of court of criminal law, whether international or domestic. This would represent a significant clarification. At times, states are inclined to treat the two notions — namely, irrelevance of official capacity and inapplicability of functional immunity in case of prosecutions of crimes under international law — as coinciding and reflecting the same concept, while at other times, they are treated as embodying two different ideas.
As stated above, there are many theories on the nature and scope of immunity ratione materiae. However, most states and scholars agree on its substantive nature and that it serves the purpose of protecting the exercise of state or governmental functions and ultimately state sovereignty — par in parem non habet iurisdictionem. If that is the basic assumption, however, it cannot but be concluded that the unavailability of immunity ratione materiae must coincide with the irrelevance of official capacity and may not be reconciled with those rules establishing that certain conduct entails individual criminal liability in the international legal order. It is, therefore, misleading to treat functional immunity as a procedural bar in cases where there are allegations of crimes under international law. By doing so, the prosecution of these crimes by foreign domestic courts is seriously undermined and state officials, or former states officials, may hide behind their states. It is akin to granting the power of a double-faced Janus to immunity ratione materiae, thereby showing one of the two faces whenever convenient.
For the same reasons, it would also be important that the ILC take a clear stand on whether the unavailability of functional immunity should be considered as a self-standing rule or as an exception. Following from the above analysis, it may not be accurate to formulate the irrelevance of official capacity as an exception or derogation from the rule on immunity ratione materiae as, in principle, such an exception was never required. The embodiment of individual criminal liability within international rules was originally coupled with a corollary rule on the irrelevance of official capacity of state organs. Not only does the idea of an exception or derogation not reflect the nature of the rule on irrelevance of official capacity, but it is also dangerous as it suggests that hypothetically such an exception is to be applied at the discretion of the judges and not applied, for instance, upon governmental suggestions of immunity.
It seems that the idea and language of an exception or derogation to functional immunity for crimes under international law stem from using a double-faced notion, which could be both substantive and procedural, as explained above, and also, partially, from the general attempts at defining a comprehensive normative framework of immunities accruing to state officials from foreign criminal jurisdiction. Building on the assumption that immunity ratione materiae is a customary rule granting immunity to state agents acting in their official capacity, it logically follows that the next step is to ascertain whether there are exceptions to this rule. However, for the reasons outlined above this may not represent the correct reasoning and, in fact, it may create more ambiguity than dispelled. In particular, the idea of an exception leaves room for states to claim that immunity ratione materiae may be upheld before domestic courts during the prosecution of crimes under international law. And of course it opens the door for confusion also when the exercise of civil jurisdiction is at stake.