The topic of immunities is one of those topics provoking heated debates among international law scholars. While immunities ratione personae (personal immunities) seem to be widely accepted even for charges of international crimes (for another view, see here and here), the acceptance of immunities ratione materiae (functional immunities) seems to be more debatable, especially when it comes to international crimes.
At its recently concluded 75th session, the International Law Commission (ILC) commenced the second reading stage of the topic of “Immunity of State officials from foreign criminal jurisdiction,” and its Drafting Committee provisionally adopted four draft articles on second reading. Particularly relevant for immunity ratione materiae is Draft Article 5 (which combines Draft Articles 5 and 6 adopted on first reading). It details in paragraph 1 the scope of immunity ratione materiae from the exercise of foreign criminal jurisdiction providing that it is enjoyed by State officials “with respect to acts performed in an official capacity”.
Draft Article 7, adopted on first reading, and which was not addressed during the 75th session, sets out an exception to immunity ratione materiae with respect to certain international crimes (with the notable omission of the crime of aggression, which was a cause of disagreement within the ILC, see this report p. 239). However, some members of the ILC and many States have expressed doubts, and even have rejected such a rule. This post will show that the position that some of these States have adopted in relation to the ILC’s work is not consistent with the position these States have taken concerning the prosecution of Russian officials for international crimes allegedly committed in Ukraine (for Germany’s position specifically, see this post done by Claus Kreß).
Draft Article 7 reads as follows:
“Draft article 7
Crimes under international law in respect of which immunity ratione materiae shall not apply
- 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.
- For the purposes of the present draft article, the crimes under international law mentioned above are to be understood according to their definition in the treaties enumerated in the annex to the present draft articles.”
A rejection by a substantial number of States
At the conclusion of the first reading of the ILC’s work on the project, and on the invitation of the ILC, States, in 2023, provided written comments on the draft articles. The United Kingdom seemed to imply that state practice and opinio iuris were not sufficient to establish the proposition in Draft Article 7 as a rule of customary international law. Germany handled the topic very cautiously saying that the provision is “a norm of customary international law “in status nascendi”” and it “discern[ed] a trend”. France also spoke of a trend and judged the project as a progressive development in opposition to lex lata. It considered that “en l’état actuel du droit international positif, il existe de sérieuses raisons de considérer que l’immunité s’applique, y compris en cas de crimes graves de droit international.” [in the current state of positive international law there are serious grounds for considering that immunity applies, including in the case of serious crimes under international law] (my own translation). Australia also spoke of a trend. Russia, unsurprisingly, considered that the provision “does not reflect customary rules of international law”. The United States of America argued that Draft Article 7 is one of several provisions in the Draft Articles adopted by the ILC on first reading that is “not supported by sufficient State practice and opinio juris, and accordingly do not reflect customary international law.” They went as far as saying that Draft Article 7 “lacks a clear and broadly supported legal rationale.”
Nevertheless, many States welcomed Draft Article 7: this is the case for example of Austria, Ireland, Lithuania, Poland, Republic of Korea (which seems to agree with the idea of exceptions) and Romania. Previously (2017), other States showed support for this draft article, such as Chile, Italy, New Zealand and Vietnam for example. However, although an important number of States have expressed a positive view concerning ILC’s work, many States adopted a cautious attitude regarding the legal character of draft article 7 (for example, South Africa was a bit insecure when talking about the adopted rule, saying on the one hand that its adoption was welcome, and on the other hand that the application of such a rule was only “a trend”). The ILC’s efforts to strike a balance between the sovereign equality of States and impunity has not found consensus within the ILC itself and among States. Notably, one can see a backlash to this proposition by politically weighty States (especially the permanent members of the UN Security Council). In 2017, China was also against the adoption of Draft Article 7. An interesting position is the one taken by Switzerland, which was against the customary character of draft article 7 in 2017 but changed its mind in 2023 saying that the ILC should: “prendre en compte la récente évolution des pratiques ainsi que l’opinio iuris des États suite à l’agression militaire russe contre l’Ukraine.” [consider recent developments in practice, as well as the opinio iuris of States following Russia’s military aggression against Ukraine] (my own translation). This view might enlighten the point made in the present post.
The attitude of some of the States towards the situation in Ukraine: an incoherence?
The potential commission of international crimes during the war in Ukraine since 2022 has been subject to scrutiny by a number of international bodies and an ongoing investigation by the International Criminal Court. Investigations by United Nations bodies have found that war crimes, and even crimes against humanity may have been committed by members of the Russian army. In the same vein, findings from OSCE have determined that violations of international humanitarian law and international human rights law have been committed. Faced with these facts, some of the States which opposed the adoption of Draft Article 7 have nevertheless called for, or at least implicitly supported, domestic prosecution of the perpetrators of these crimes. The United States Department of State, through the office of the spokesperson, has declared that international action shall “ensure that those responsible for atrocities in Ukraine are held accountable, whether through domestic judicial processes or international mechanisms and institutions[.]” (emphasis added). The same statement suggested that the aid’s goal was to build “[c]apacity of Ukraine’s domestic authorities to hold individuals accountable for war crimes” (emphasis added). Moreover, it stated that the US department of justice was working with Ukraine’s national police to “to present criminal cases domestically” (emphasis added). Beth Van Schaack, Ambassador-At-Large for the Global Criminal Justice Office of the State Department, also spoke in favor of domestic prosecution, stating that “the majority of cases arising out of this war will be prosecuted in Ukrainian courts” and that the US help might serve to “ultimately pursue effective and fair cases in Ukraine’s courts.” Overall, it seems that the United States, despite being one of the strongest opponents to Draft Article 7, nevertheless supports the prosecution of alleged perpetrators of such crimes before Ukrainian national tribunals. Moving to France’s position, the Ministry of Foreign Affairs said in 2023 that “La France, […], est et restera pleinement mobilisée en soutien de la justice ukrainienne et de la Cour pénale internationale, qui sont compétentes pour mener des enquêtes impartiales et indépendantes.” [France, […], is and will remain fully mobilized in support of Ukrainian justice and the International Criminal Court, which are competent to conduct impartial and independent investigations] (my own translation). This necessarily implies that Ukrainian tribunals can prosecute alleged perpetrators. Furthermore, France acknowledged it was involved in “bilateral efforts to assist Ukrainian courts that are investigating Russian war crimes. The magnitude of the crimes committed in that country requires the mobilization of all appropriate courts, in line with the principle of complementarity” (emphasis added). Again, this seems to recognize that it is partly for domestic tribunals in Ukraine to hold accountable the responsible for atrocity crimes. In the same vein, the United Kingdom seems to acknowledge that Ukrainian courts should prosecute alleged war crimes perpetrators. In a press release, the then UK Attorney General Victoria Prentis is quoted: “[…] By providing funding and legal expertise to Ukraine’s domestic prosecutors and judicial system, the UK is helping them to investigate atrocities committed on Ukrainian soil and, where appropriate, bring speedy prosecutions in Ukrainian courts” (emphasis added). Therefore, UK implies that its objective is to support domestic prosecutions in Ukraine. This is corroborated by another press release, which states that a previous help given by UK has allowed Ukrainian authorities to “successfully prosecut[e] over 50 Russian individuals for war crimes committed in Ukraine”. Finally, Attorney General Victoria Prentis gave a speech in 2022 where she seemed to recognize that domestic prosecutions might play an important role in ensuring accountability for atrocities committed in Ukraine:
“The work done in Ukraine’s domestic investigations and prosecutions has been extraordinary. Led by my good friend, Prosecutor General Andriy Kostin, Ukrainian prosecutors have opened files into almost 50,000 alleged international crimes. They have, and continue to, carry out trials in the course of an ongoing, live and brutal conflict. This is totally unprecedented – and we should recognise it as such. And crucially this is a unique opportunity to deter soldiers on the ground and their commanders from committing further atrocities” (para 14).
It seems to me that this is an encouragement for domestic prosecutors to continue domestic prosecutions to firstly ensure accountability for those responsible of atrocities and secondly to fulfill the function of prevention inherent to criminal law.
Thus, one can see that the US, the UK, and France, although opposed to draft article 7 are supporting Ukraine in its efforts to render accountable those responsible for atrocity crimes. But in my view, an incoherence is revealed: how can Ukraine render fully accountable the alleged war criminals without a rule permitting it to have full competence over Russian officials who have acted in an official capacity? The classic rules on immunities ratione materiae would bar Ukraine from exercising its jurisdiction over Russian officials. It stems from this that if States want to give effects to their desire for justice, they should accept an exception/limitation of this rule for international crimes. Doing and saying otherwise shows the incoherence of their positions: encouragement to Ukraine’s fight against impunity would remain vain if there was no way for it to prosecute and find guilty the perpetrators of international crimes. Back to Switzerland’s view, it seems that the recent practice (linked to domestic prosecutions in Ukraine) supports this conclusion. If States are declaring that impunity should end thanks to prosecutions before Ukrainian courts or others domestic tribunals, it seems that these declarations support an opinio iuris from these States that an exception/limitation to immunity ratione materiae may exist.
Concluding thoughts
As the ILC will continue consideration of the Immunity topic at its next session, it has given States a further opportunity to comment on its work (see this report p. 7). It will be interesting to see what further reactions States there are to Draft Article 7. States are always very prompt to condemn and demand accountability from other States. However, they are usually reluctant to have their own officials brought to justice. It this tension that is reflected in States’ comments on Draft Article 7 and their response to the situation in Ukraine. When a State is a blatant aggressor and commits war crimes it is easy to raise concerns and to call for domestic accountability of foreign State officials. But when it comes to saying that a rule might apply to the detriment of one’s own nationals, it seems that States may show some opposition. While admitting that Draft Article 7 is today a customary rule of international law would be difficult for some States, they should not lose sight of the fact that calling for an application of the very same rule about a particular situation might prove what they think about the law. Calling for its application in some cases but not in all others would be tantamount to applying double standards and would show their inconsistency concerning the matter.