The Work of the ILC on the Immunity of State Officials from Foreign Criminal Jurisdiction

UN GENERAL ASSEMBLY, SIXTH COMMITTEE (LXVIII Session), DEBATE ON THE REPORT OF THE INTERNATIONAL LAW COMMISSION ON THE WORK OF ITS SIXTY-FIFTH SESSION (UN Doc. A/68/10), 29 OCTOBER 2013.

On 29 October 2013, before the Sixth Committee of the United Nations General Assembly, Min. Plenipotentiary Andrea Tiriticco, Director for Legal Affairs of the Ministry for Foreign Affairs, expressed the position of the Italian Government on the work of the International Law Commission on the topic of the “Immunity of State officials from foreign criminal jurisdiction”. He stated:

We wish to thank the Special Rapporteur on this topic, Professor Conception Escobar Hernandez, for her second report, which included six draft articles presented to the Commission. The report deals with some key questions such as the scope of the topic and of the draft articles; the concepts of immunity and jurisdiction; the difference between immunity ratione personae and immunity ratione materiae; and the normative elements of the regime of immunity ratione personae. The text of three draft articles were provisionally adopted by the Commission at the last session. We wish to praise the in-depth analysis of the relevant issues and related case-law that characterizes the commentary on the three draft articles. Mr. Chairman, Italy’s specific comments at this stage relate mainly to article 1 of the text provisionally adopted by the Commission, dealing with the scope of the draft articles. Draft article 1 refers to a number of important concepts, in the context of the topic concerned. In particular, the commentary rightly points out that notions such as “State officials” that would enjoy immunity and “criminal jurisdiction” that would identify the scope of the immunity will deserve further consideration at a later stage. The same commentary underlines that the Commission decided to confine the scope of the draft articles to immunity from the foreign criminal jurisdiction, namely from the criminal jurisdiction “of another State”. Consequently, the current work on the topic would not concern the proceedings before international criminal tribunals, while the subject of immunities before the so-called mixed or internationalized criminal tribunals would be addressed in due course. This latter point, which indirectly refers to the role of international criminal justice, leads me to re-emphasize the importance, in today’s international legal order, of judicial institutions such as the International Criminal Court, and the other International Criminal Tribunals for the prevention and punishment of grave international crimes. In this context, not only the question of immunities and related exceptions finds a special regulatory framework within international criminal proceedings, for example under article 27 of the Rome Statute of the ICC, as indicated by the International Court of Justice in its Judgement in the Arrest Warrant case. The substantial body of case-law which has emerged nowadays on the irrelevance of the official capacity of individuals accused of the most serious crimes appears to be evidence of a more general consolidation of this principle, which should be taken into account also in the exercise of national jurisdictions. Accordingly, the Commission, in its future work should consider the overall development of international practice on the impact of the nature of the crime on the issue of granting immunities. We agree with the Commission on the point, which is clearly stated in the commentary to the draft articles, that immunity from foreign criminal jurisdiction is procedural in nature and does not exempt the criminal responsibility of the person concerned from the substantive rules of criminal law that are applicable. In other words, individual responsibility for breach of the substantive rules of criminal law remains intact, while a State cannot exercise jurisdiction over a given conduct due to the immunity enjoyed by an official of another State. The International Court of Justice has repeatedly affirmed this principle, both with regard to immunity of foreign officials and State immunity. Paragraph 2 of draft article 1 deals with special regimes relating to immunity from foreign criminal jurisdiction. It states that the draft articles are “without prejudice” to the immunity from criminal jurisdiction enjoyed under special rules of international law. And it mentions, albeit not in an exhaustive manner, three categories of persons, namely a)-those connected with diplomatic missions, consular posts and special mission of a foreign State; b)-those engaged in activities connected with international organizations; and c)- the military forces of a state in a foreign country. Italy agrees with this approach of the Commission, which takes into account the existence of several systems of special rules which are applicable to certain categories of individuals: the Vienna Conventions on Diplomatic and Consular relations of 1961 and 1963 being the most relevant examples. However, we wish to submit one additional remark with respect to the regime of jurisdictional immunity of military forces. The ILC report specifies that the third group of special rules include those regulating “the stationing of troops in the territory of a third State, even included in Status of Forces Agreements […] in headquarters agreements or military cooperation accords envisaging the stationing of troops”. We do not have objections with regard to this statement. Special regimes of this kind, especially contained in the so-called SOFA Agreements are well-known in international practice. However, it is our understanding that these regimes do not exhaust the cases in which the military forces of a State enjoy immunity from foreign criminal jurisdiction for acts performed in their official capacity. We are confident that, at the appropriate time, the Commission will deal with the issue of immunity of military forces in a comprehensive manner which will take into account its different aspects. Article 3 of the draft articles provisionally adopted by the Commission relates to the “persons enjoying immunity ratione personae”. It states that “Heads of State, Heads of Government and Ministers of Foreign Affairs enjoy immunity ratione personae from the exercise of foreign criminal jurisdiction”. In support of this conclusion, the Commission refers to a number of judgements of the ICJ, in particular, in the Arrest Warrant Case of 2000, and in the case concerning Certain Questions of Mutual Assistance in Criminal Matters of 2008, as well as to a conspicuous body of decisions of national courts. We do share the terms of the provision suggested by the ILC; this, however, with the caveat stemming from the previous general observation related to exceptions to immunity in case of commission of grave international crimes. We also do agree with the Commission on the point that there is viceversa insufficient practice, also at the level of international and national jurisprudence, for recognizing immunity ratione personae to other high-ranking officials, different from the ones mentioned in draft article 3, without prejudice for the possible application of rules pertaining to immunity ratione materiae. The scope of immunity ratione personae is then considered by draft article 4. In paras. 1 and 2, the Commission sets a time limit for the immunity, which is due to apply only during the term of office of Heads of State, heads of Government and Ministers of Foreign Affairs. Also immunity ratione personae covers all acts performed by the said officials “during or prior to their term of office”. In this latter respect, it is also our understanding that with regard to acts performed prior to the term of office, the immunity applies only if the criminal jurisdiction of a third State is to be exercised during the term of office of the officials concerned. In conclusion, we wish to reiterate our appreciation for the work of the Special Rapporteur and of the Commission on the topic of immunity of state officials and we look forward to further progress in dealing with such an important issue.

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