Should the International Law Commission Overrule the ICJ in its Articles on Immunity of State Officials from Foreign Criminal Jurisdiction?

In the current session of the International Law Commission (ILC), the Commission has continued its work on the immunity of State officials from foreign criminal jurisdiction. In the first part of the ILC’s 2013 session, the Drafting Committee of the ILC adopted three draft articles on immunity of State officials. Those draft articles deal only with the scope of the ILC’s project (what is in and what is out) and with immunity ratione personae. On the latter, the draft articles set out the persons enjoying immunity ratione personae and the scope of that type of immunity. Those draft articles adopted thus far do not address the scope of immunity ratione materiae from foreign criminal jurisdiction. Although the ILC’s work is still at an early stage, the Drafting Committee has already made one significant decision. Draft Article 3 provides that:

“Heads of State, Heads of Government and Ministers for Foreign Affairs enjoy immunity ratione personae from the exercise of foreign criminal jurisdiction.”

In this provision, the Drafting Committee has maintained the view that the immunity ratione personae applies to the so-called troika of high ranking State officials that the Vienna Convention on the Law of Treaties establishes as having a plenary or general competence to conclude treaties. There have been arguments that officials outside the troika (eg Ministers of Defence or of Trade) should also be granted immunity ratione personae, and indeed some domestic courts (eg in the UK ) have done so. The ILC seems set to reject this expanded view of immunity ratione personae and, in my view, rightly so.

What is more controversial is whether Foreign Minsters should be in this list. In taking the view that Foreign Ministers belong in this category, the ILC’s Drafting Committee has adopted the view of the International Court of Justice in the Arrest Warrant case (2002). That case concerned the immunity of the Minister for Foreign Affairs and the ICJ stated that the Minister for Foreign Affairs (like the Head of State and Head of Government) has immunity by virtue of that office, and while in office, even when it is alleged that he has committed international crimes. The ICJ went on to hold that the Foreign Minister was immune from foreign criminal jurisdiction even if abroad on a private visit.

The immunity ratione personae of serving Heads of State and Heads of Government is not particularly controversial. However, opinion is divided as to whether the Foreign Minister should be placed in the same category (even within the ILC – see the Drafting Committee Report ; and among States too  – see here para. 58 ). In the Arrest Warrant case, the ICJ did not provide any State practice in support for the view that the Foreign Minister has immunity ratione personae under customary international law. I argue below that the ILC should consider whether the ICJ got customary law right and should consider departing from the ICJ’s decision.

The ICJ reasoned simply from the fact that immunity ratione personae is intended to enable the conduct of international relations and the Foreign Minister has plenary competence in international relations (like Heads of State and Heads of Government). The current ILC special rapportueur (Concepción Escobar Hernández) on this topic has taken a similar view. In her latest (2013) report to the ILC, she stated that:

The basis for the view that immunity is enjoyed by Heads of State, Heads of Government and ministers for foreign affairs is the fact that their functions include representing the State in international relations, a function that, it should be borne in mind, is based on international law and performed automatically, without the need for any express authorization by the State that they represent.  . . . It is a representational function which international law attributes to these offices, independently of a State’s domestic law, the sole function of which is to establish a homogeneous hierarchical model for representation of the State within the international community as a whole, and which promotes and facilitates the maintenance of international relations. It is precisely this automatic representational nature, based on international law, which explains the status that is granted to these three State officials within the framework of international law as a whole (for example, in treaty law and the law of international responsibility) and which is also recognized in the context of immunity from foreign criminal jurisdiction, whereby the regime that applies to such officials (immunity ratione personae) differs from the regime that applies to other State officials. (para. 60)

However, as Sangeeta Shah and I pointed out in our 2010 EJIL article, if the purpose of immunity ratione personae is simply to protect the representational function of those state officials that possess it, there is no need for those officials to have this immunity when abroad on private visit. Confining this immunity to official visits would permit the exercise of this representational function. Justification of immunity ratione personae when abroad on private visits (which international law clearly affords to Heads of State and Heads of Governments) must find its basis elsewhere. We argued in our article that those further justifications, beyond the functional or representational rationale, are (i) symbolic sovereignty and (ii) the principle of non-intervention. However both of these rationales only apply to Heads of State and Heads of Government. They relate to the symbolic nature of office of the Head of State and the fact that permitting the exercise of criminal jurisdiction over the Head of Government (which would mean permitting arrest and detention) would allow one State to effectively change the government of another by criminal prosecution. The same considerations do not apply to the Foreign Minister.

The Foreign Minister, like other high-ranking officials of State, may have a type of immunity ratione personae when representing the State abroad. Arguably this should be by reference to special missions immunity. However, the ILC’s recently adopted Draft Article 2 states that: “The present draft articles are without prejudice to the immunity from criminal jurisdiction enjoyed under special rules of international law, in particular by persons connected with diplomatic missions, consular posts, special missions, international organizations and military forces of a State.” Thus the draft articles will not deal with special missions. With regard to other high ranking officials, the “Drafting Committee had recognized that other high-ranking officials of the State might benefit from immunity under rules of international law relating to special missions. The commentary to draft article 3 would clarify that point.” [Drafting Committee Report 3174th meeting]

For the ILC to exclude Foreign Ministers would mean that it is seeking to reverse the ICJ. That may have been a significant factor in the thinking of some members of the ILC. However, to the extent that the ILC has the function of setting out what the law is or a law-making function, it should be part of its function to consider whether judicial bodies have correctly applied the law. Controversial as it may be, part of the codification (and also law-making) function is to reverse judicial bodies if they get it wrong. It is often lamented that there is no overarching compulsory judicial jurisdiction in international law. However, it may well be that another problem is that where there is a judicial jurisdiction that can decide there is often no swift law-making process that can correct errors or make changes. Therefore, judicial decisions can ossify the law. Or they may head off in wrong directions without opportunity for rebalancing. Nevertheless, corrections or changes to prior judicial decisions do sometimes take place even in international law. Perhaps the most famous example is the reversal of the holding in the Lotus Case decision of the PCIJ (1927) by later law-making acts. In that case, the PCIJ decided that where a collision occurs on the high seas, the flag States of both vessels involved have criminal jurisdiction over persons alleged to have caused the incident. The 1952 Brussels Convention for the Unification of Certain Rules relating to Penal Jurisdiction and the 1958 High Seas Convention (and later the 1982 Law of the Sea Convention) reversed that decision and accord jurisdiction to the flag State in whose ship the defendant served or to the State of nationality. That reversal came 25 years later.

Perhaps 11 years is seen as too short a time in which to reverse an ICJ decision reached in 2002. However, that possibility should remain open. As the ILC has as its aim the codification of the law as it is, it should give great weight to ICJ authority. However, it should consider also whether it feels the ICJ got the law right. Afterall, Article 38(1)(d) of the Court’s Statute says that judicial decisions are a “subsidiary means for the determination of rules of law”. Even when the ILC is involved in codification, it should consider departing from the ICJ.