Under customary international law, government officials, intelligence officers, military personnel, and other state agents generally enjoy immunity from criminal prosecution by other states with respect to acts performed in their official capacity. Does this ‘functional’ immunity—or immunity ratione materiae—extend to international crimes, such as genocide, crimes against humanity, and war crimes? This may be the most important question facing international criminal law today.

According to the International Law Commission (ILC), established by and responsible to the United Nations General Assembly, the answer to this question is ‘no’. Last year, the Commission provisionally adopted a Draft Article stating that “Immunity ratione materiae from the exercise of foreign criminal jurisdiction shall not apply in respect of the following crimes under international law,” listing genocide, crimes against humanity, war crimes, apartheid, torture, and enforced disappearance. The Draft Article proved controversial within the Commission. The Chairman, who opposed the Draft Article, called for a recorded vote after “informal consultations” with other members, a rare event in a body that typically operates by consensus. 21 members voted in favor, 8 voted against, and 1 abstained.

Two weeks ago, AJIL Unbound, an online companion to the prestigious American Journal of International Law, published an important Symposium on the topic. Five of the essays focused on the ILC’s Draft Article, and all five were mostly critical of the ILC’s work. Sean Murphy, a member of the Commission who voted against the Draft Article, seemed to repeat objections which he offered during the debates without, in my view, fully engaging with the responses to those objections offered by members of the majority. Strangely, no member of the majority contributed to the Symposium. Perhaps all 21 were invited to do so but all 21 declined. Whatever the explanation, it is a pity that the Symposium does not reflect the majority view.

In any event, one essay contains a highly misleading passage that warrants a separate response. In his contribution, Mathias Forteau writes that the Draft Article “did not meet states’ approval.” According to Forteau,

Twelve states supported Draft Article 7 (Austria, Chile, Czech Republic, El Salvador, Greece, Italy, Mexico, Netherlands, Norway, Poland, Portugal, South Africa); ten states observed that the ILC should have tried to reach consensus before adopting any provision (Australia, China, France, Italy, Portugal, Romania, Slovakia, Slovenia, Spain, Sri Lanka); twenty-two states expressed concerns or disagreement with Draft Article 7 (Australia, China, France, Germany, India, Indonesia, Iran, Ireland, Israel, Japan, Korea, Malawi, Malaysia, Singapore, Slovakia, Slovenia, Spain, Sri Lanka, Switzerland, Thailand, United Kingdom, United States). All the relevant statements are available at Sixth Committee, 72nd Session, UNMeetings (Item 81 of the Agenda, Oct. 23 to 27 and 31, 2017).

No doubt, country statements are often written in guarded or circuitous language. As a result, classifying a statement as ‘pro’ or ‘con’ requires judgments about which reasonable people can disagree. Nevertheless, in my view, Forteau’s lists seem both incorrect and incomplete.

First, Norway supported Draft Article 7 on behalf of the Nordic states, which include Denmark, Finland, Iceland, and Sweden.

Second, Slovakia and Slovenia are listed as expressing concerns or disagreement, when in my view they expressed support. For its part, “Slovakia supports the concept of immunity ratione materiae of State officials from foreign criminal jurisdiction, as well as the existence in current general international law of limitation and exception to this immunity. We therefore support inclusion of draft article 7 on the limitation and exceptions, which in our view shall not go beyond core crimes under international law.” Slovenia stated that it “share[s] the views expressed within the Commission that, while today the status of customary international law does not allow for limitations and exceptions to immunity ratione personae in the context of inter-state relations, the opposite trend exists with respect to immunity ratione materiae and the most serious international crimes.” Indeed, Slovenia’s chief complaint seems to have been that Draft Article 7 did not go far enough, since the crime of aggression was not listed as one in respect of which functional immunity shall not apply.

Third, as I read their statements, Estonia, Hungary, New Zealand, Peru, Romania, and Vietnam expressed support for Draft Article 7, but are not included on Forteau’s list.

So, in my view, the number of supportive states is not 12 but 24.

Turning to Forteau’s list of states expressing concerns or disagreement with Draft Article 7, I have already mentioned that Slovakia and Slovenia expressed support and should not have been included in this list. On the other hand, Russia expressed disagreement and should have been included. Finally, in my view, Indonesia, Korea, and Malawi expressed no view on the merits, though these statements are more difficult to classify.

So, in my view, the number of opposing states is not 22 but 18.

Again, there is some room for reasonable disagreement, and I invite readers to study the country statements for themselves and make their own judgments.

Of course, even if 24 states supported Draft Article 7 and only 18 opposed it, this would not itself show that Draft Article 7 is sound, or unsound, either as a codification of existing law or as progressive development of the law. For one thing, most of the UN’s 193 member states did not comment at all. For another, it is not entirely clear how country statements in the General Assembly bear on the existence and content of customary international law, for example, as ‘verbal’ state practice or as expressions of legal opinion (opinio juris).

Finally, there is the fundamental question: Does functional immunity apply in respect of international crimes unless an exception or limitation can be found in general state practice accepted as law or, instead, may states exercise jurisdiction over international crimes on the usual legal bases—territory, nationality, and the like—unless functional immunity in respect of such crimes can be found in general state practice accepted as law? If state practice is sparse and state opinion is divided, which rule applies until consensus is reached? I hope to say more about the merits in a future post.

(Many thanks to my friends Alonso Gurmendi Dunkelberg and Elvina Pothelet for compensating for my linguistic deficiencies and helping me to evaluate several country statements.)

Image: A wide-view of the special commemorative event entitled “The International Law Commission: Sixty Years: And Now.” UN Photo by Patrick Bertschman