UN GENERAL ASSEMBLY, SIXTH COMMITTEE (LXVII Session), DEBATE ON THE REPORT OF THE INTERNATIONAL LAW COMMISSION ON THE WORK OF ITS SIXTY-FOURTH SESSION ON THE IMMUNITY OF STATE OFFICIALS FROM FOREIGN CRIMINAL JURISDICTION, 6 NOVEMBER 2012.

On 6 November 2012, during the debate in the Sixth Committee of the UN General Assembly on the Report of the International Law Commission, the Legal Adviser to the Permanent Mission of Italy, Mr Salvatore Zappalà, submitted the comments of his delegation on the work conducted by the ILC on the “Immunity of State Officials from Foreign Criminal Jurisdiction”. After thanking Amb. Kolodkin for his past work and welcoming Prof. Escobar Hernandez as the new Special Rapporteur, he stated:

As the Report highlights there still is a variety of approaches to this issue. However, we believe there are a few fundamental principles that ought to be upheld and on which there cannot be so many divergences of views. Among these few fundamental principles one may recall that all state officials must be immune from foreign jurisdiction for actions carried out in their official capacity, apart from cases in which crimes under international law are concerned.

In all other instances (what we can label as ‘ordinary’ cases), however, those who act in the name of the State, for example members of the armed forces, or police, or members of government and so on, are to be held immune for their official acts which are to be attributed to the State to which they belong. Ordinary rules on State responsibility would then apply as appropriate and the response is to be found in the framework of inter-state relations. This should not mean that there will not be responsibility for unlawful acts.

At the same time, acts performed by state officials in their private sphere or capacity, acts not involving the insignia of state sovereignty must remain under the scope [of] ordinary rules on jurisdiction, unless special categories of personal immunities apply (e.g. in the case of diplomatic personnel or special missions, or the so called `troika’). These [are] well established principles of international law.

The divergences of views, on the other hand, seem essentially to revolve around a few categories of specific crimes under international law which are listed e.g. in the Statutes of the UN Ad hoc Tribunals or in the ICC Rome Statute. Admittedly, this is an area where difficulties are present and need for more work is necessary as rightly pointed out by the Special Rapporteur. According to the ICJ when referring to international crimes, immunity must not entail impunity, and for this principle to be implemented there might be the need to identify or to use (when available) appropriate rules or mechanisms allowing redress.

There seems also to be agreement on the fact that international crimes are offences of an exceptional nature which necessitate adequate legal responses. On one level national courts must exercise their primary responsibilities, on the other international mechanisms may be available to prosecute these crimes.

However, rules and principles in this area need not be construed as exceptions to the rule of immunity of state officials. These could be specific norms strictly linked to the provisions establishing the individual criminal responsibility of the officials who commit certain classes of crimes. In particular, war crimes, crimes against humanity and genocide may entail the responsibility of both the individual as well as the State to whom these crimes are attributable, and hence the immunity paradigm may not be necessarily the most appropriate in these circumstances.

In this direction we would support the efforts of the Special Rapporteur to deepen the analysis and look forward to contribute to it. The whole relationship between jurisdiction and immunities may profit from being conceptually reworked in this direction. And we look forward to any element of further reflection in the future work of the Special Rapporteur.

As far as the distinction between ratione materiae and ratione personae immunities is concerned we believe that this distinction continues to be important and even if, in particular for international crimes, there may still be instances where the ratione personae dimension temporally bars prosecution before foreign courts, what is important to determine is that no ratione materiae immunity justifies such crimes.