18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE
Day 3 (4 December 2019)
Name of the Event: Head of State Immunities: Situating Nuremberg Principle III Within the Current International Legal Framework (Side Event co-hosted by Germany and the International Nuremberg Principles Academy)
Overview by: Francisca De Castro, Junior Research Associate PILPG-NL
Main Highlights:
Immunity has been at the heart of international criminal justice since the Nuremberg principles, particularly principle number 3 that “the fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him”.
Immunity does not equal impunity
The International Law Commission (ILC) has been working on the question of immunity and has proposed a draft article which provides that immunity is not applicable in respect to crimes under international law.
The question of immunity is not just being observed by the ILC, it is playing out before domestic courts as well.
When thinking of the basis for immunity, it should appear that it does not apply to international crimes because of the core existence of immunity.
Summary of the Event:
This impressive panel was put together by the International Nuremberg Principles Academy and was moderated by Professor Claus Kreß from the University of Cologne who emphasized that the question of immunity has been present from the beginnings of international criminal justice, which can be traced back to the Paris Negotiations after World War I. The question remains of a particular interest considering the recent developments with the potential prosecution of Omar Al-Bashir.
The first speaker was Dr. Concepción Escobar Hernandez, a member of the International Law Commission who was appointed as the Special Rapporteur for the topic of immunity in 2012. She discussed the work of the ILC on creating a series of draft articles on immunity of state officials. She reminded the participants of the differences between functional and personal immunity, and went on to discuss the considerations of functional immunity, particularly with regards to its exceptions. These exceptions include that under draft article 7, functional immunity should not apply to crimes under international law (a formulation carefully drafted as to avoid debate). Ms. Escobar Hernandez reminded that there remained some debate about the nature of the crimes under international law as they could still be considered official acts, and thus rendering the perpetrator immune. The commission decided to keep silent on the response to this debate about the nature of the crime as to avoid further debate. Another point highlighted was that the ILC continues to deal with the question of immunity and exceptions to immunity because the commission must maintain a coherent approach with regards to past reports. But the question that remains, according to Ms. Escobar Hernandez is the question of where the debate stands on immunity and impunity as the two may overlap, particularly when considering the potential politicization of the exercise of jurisdiction.
The second panelist was Dr. Leila Nadya Sadat, a professor from the Washington University St. Louis and director of the Crimes Against Humanity Initiative, working on a draft convention on crimes against humanity. She reiterated the importance of the question of immunity as it is not just being discussed within the ILC but is an issue that is actively playing out before domestic courts. She addressed the convention of crimes against humanity and considered it essential for the question of immunity to be addressed in that convention. In the draft convention, an active decision was made to use language from articles of other conventions states have already ratified so there wouldn’t be issues of interpretation. She further highlighted that it is important for immunity to be inapplicable in situations of international crimes, particularly when looking at the appointment of individuals as heads of states for life.
The third panelist was professor Dr. Dapo Akande from Oxford University, who started his intervention by a reflection on the nature of immunity. In his view, officials of states are immune from criminal prosecution in foreign states for two reasons. The first reason he mentioned is that functional immunity is substantive in that it is a way to instate state responsibility since the official is acting on behalf of the state. The second reason is that immunity is procedural in the sense that sovereign states may not have jurisdiction over another sovereign state. When considering the application of immunity in international crimes, Mr. Akande highlighted some arguments that were often being used to put forward the idea that immunity shall not apply for international crimes, but he refuted those arguments by saying that some were more convincing than others. For example, the argument that claims that state immunities are only applicable to sovereign acts and that an international crime is unsovereign in nature, Mr. Akande refuted by reminding that some international crimes depend on the fact that it was committed on behalf of the state to be considered international crimes. He proposes a different approach which would include looking at the reasons for which immunity was created and finding arguments there. He also spoke on the jurisprudential developments in which it has happened that foreign courts have tried state officials for international crimes, and immunity has not been invoked which highlights the underlying assumption that in practice, there is no immunity for these crimes.