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Published online by Cambridge University Press: 27 October 2017
The European Convention on State Immunity provides for the immunity of states and their organs from the domestic courts of the respective Contracting States. In doing so, it makes no apparent distinction between those courts’ civil and criminal jurisdictions. Yet the vexed question of the immunity of state officials from the latter, especially in respect of crimes established under international law, has been spectacularly brought to the fore by the Pinochet case. It is on this question—the immunity of individual state officials from the criminal jurisdiction of foreign states specifically in respect of international crimes—that this article focuses.
1 ETS No 74, opened for signature at Basle, 16 May 1972; entered into force (on fifth ratification), 11 June 1976 [“ECSI”].
2 Note that the immunity of a former head of state, like Senator Pinochet, is directly anal ogous to the immunity of a serving or former state official. Both are examples of state immunity (an immunity ratione materiae, not personae). See R v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 3) [1999] 2 WLR 827 [“Pinochet (No 3)”], at 847, per Lord Browne-Wilkinson; at 906, per Lord Millett.
3 Austria, Belgium, Cyprus, Germany, Luxembourg, Netherlands, Switzerland, United Kingdom.
4 See Report of the International Law Commission on the work of its forty-third session, 29 April—19 July 1991, UN Doc A/46/10 [“ILC Report 1991”], pp.11 ff [“DAJISP”]. The DAJISP have not translated into a binding International instrument.
5 At the international level, see the International Law Commission’s draft articles on State responsibility, Report of the International Law Commission on the work of its forty-eighth session, 6 May-26 July 1996, UN Doc A/51/10, pp.125 ff [“DASR”], art 19.
6 See (consonant with custom to this extent) DAJISP, art 2 (1)(b)(v), referring to “representatives of the State acting in that capacity”.
7 ECSI, art 32 states: “Nothing in the present Convention shall affect privileges and immunities relating to the exercise of the functions of diplomatic missions and consular posts and of persons connected with them”. See also DAJISP, art 3 (1); and, more generally, Vienna Convention on Diplomatic Relations 1961, 500 UNTS 95 [“VCDR”], and Vienna Convention on Consular Relations 1963, 596 UNTS 261.
8 The personal immunity of a serving head of state is not mentioned specifically in the ECSI but it can be assumed, by analogy with diplomatic immunity, that his or her immunity ratione personae is unaffected by the Convention. This is explicitly the case under DAJISP, art 3 (2) and under the UK’s State Immunity Act 1978, c.33 [“SIA”], s.20.
9 Apart from the non-territorial crime of piracy, these comprised war crimes, crimes against humanity and genocide under customary international law.
10 See Pinochet (No 3) above n 2 at 917–22, per Lord Phillips.
11 Quite simply, prior to the Pinochet case, state immunity had never been raised in relation to an international crime. In the US extradition case of Artukovic v. Rison, 79 ILR 383, it was the foreign state itself (Yugoslavia, as successor to the pro-Nazi Croatian state established in World War II) that sought the accused’s return on war crimes charges; see, similarly, Kroeger v. Swiss Federal Prosecutor’s Office, 72 ILR 606 (Switzerland, FRG requesting); and Re Federal Republic of Germany and Rauca, 88 ILR 277 (Ontario, Canada, FRG requesting). In the Canadian criminal case of R v. Finta, 82 ILR 424, 98 ILR 520, dealing with war crimes and crimes against humanity committed in 1944, the foreign state (Hungary) actively assisted the prosecution. In the “Ivan the Terrible” cases (in the US, Demjanjuk v. Petrovsky, 79 ILR 534; in Israel, State of Israel v. John (Ivan) Demianiuk, digested (1988) 18 Israel Ybk HR 229), the accused, a member of the local SS in occupied Ukraine during World War II, did not raise state immunity, presumably on the basis of its guaranteed waiver by Germany, the responsible foreign state; see, similarly, the Polish case of In Re Koch, 30 ILR 496; the French case of Barbie, 78 ILR 124, 100 ILR 330; and the Australian case of Polyukhovich v. Commonwealth of Australia, 91 ILR 1.
12 In the specific case of genocide under customary international law, it is perhaps arguable that the unavailability of state immunity is itself a positive rule. In Attorney-General of the Government of Israel v. Adolf Eichmann, 36 ILR 5 [“Eichmann”] at 35, even though state immunity was not pleaded, the District Court of Jerusalem referred to “the absence of immunity from criminal liability of rulers and public officials”. In Reservations to the Convention on Genocide, Advisory Opinion, ICJ Reps 1951, p.15 at p.23, the ICJ considered “that the principles underlying the [Genocide] Convention”—which presumably include art IV’s abrogation of state immunity with respect to genocide—”are principles which are recognized by civilized nations as binding on States, even without any conventional obligation”; see also Eichmann, at 34–5.
13 Pinochet (No 3) above n 2 at 917-22 & esp 924. For their part, the DAJISP are silent on the question of state immunity from criminal jurisdiction.
14 Note, however, that the question of the immunity of a former head of state from the criminal jurisdiction of the UK—the central issue in Pinochet (No 3) —actually focused on the wording of VCDR, art 39 (2), enacted by way of schedule to the Diplomatic Privileges Act 1964, c.81 [“DPA”], as applicable to heads of state by virtue of SIA, s.20 (1). Nonetheless, despite its confusing statutory provenance, the immunity of the former head of state (an immunity strictly ratione materiae) is simply a manifestation of state immunity.
15 Pinochet (No 3) above n 2 at 844, per Lord Browne-Wilkinson; at 852, per Lord Goff (dissenting); at 881, per Lord Hope; at 889, per Lord Hutton; at 902, per Lord Saville; at 906, per Lord Millett. Support for this proposition might be drawn from the need felt by the Contracting Parties to the Genocide Convention to provide expressly that “[p]ersons com mitting genocide … shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals”, although this could equally have been aimed at immunities ratione personae, such as that of a serving head of state or diplomat: see Convention on the Prevention and Punishment of the Crime of Genocide 1948, 78 UNTS 277 [“Genocide Convention”], art IV.
16 Pinochet (No 3) above n 2 at 846, per Lord Browne-Wilkinson; at 881, per Lord Hope; at 907, per Lord Millett. In R v. Mafart and Prieur, 74 ILR 241, 243, a rare case of an offence committed by state officials on the territory, and solely under the domestic criminal law, of a foreign state (French agents responsible for sabotage in New Zealand), any immunity to which the agents might have been entitled was waived by their plea of guilty.
17 Lords Browne-Wilkinson, Hutton and Millet, in separate judgments. Each of the other three majority Lords based his decision on a different ground.
18 UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, GA Res 39/46 [“Torture Convention”].
19 See VCDR, art 39 (2), as applicable in UK courts to former heads of state by virtue of SIA, s.20, in combination with the DPA. All of their Lordships considered the relevant UK provisions to reflect the customary international position on the immunity of a former head of state: see Pinochet (No 3) above n 2 at 846, per Lord Browne-Wilkinson; at 851–2, per Lord Goff (dissenting); at 880, per Lord Hope; at 889, per Lord Hutton; at 902, per Lord Saville; at 906, per Lord Millet; at 925–6, per Lord Phillips.
20 Pinochet (No 3) ibid at 900, per Lord Hutton; at 913–14, per Lord Millet; see also at 882–5, 886, per Lord Hope.
21 Pinochet (No 3) ibid at 846-8, per Lord Browne-Wilkinson; at 898–9, per Lord Hutton; at 913-14, per Lord Millet.
22 Pinochet (No 3) ibid at 924.
23 Pinochet (No 3) ibid at 881.
24 Pinochet (No 3) ibid at 859.
25 Pinochet (No 3) ibid at 856.
26 DASR, Part I, Chap II (see also the minor amendments proposed in Report of the International Law Commission on the work of its fiftieth session, 20 April–12 June 1998, 27 July–14 August 1998, UN Doc A/53/10 [“ILC Report 1998”], paras 359–451).
27 DASR, art 10. The relevant ILC commentary states that “[i]n international law, the State must recognize that it acts whenever persons or groups of persons whom it has instructed to act in its name in a given area of activity appear to be acting effectively in its name”. In such cases, these persons or groups are “acting, even though improperly, within the scope of the discharge of their functions”: Report of the International Law Commission on the work of its twenty-seventh session, 5 May–25 July 1975, UN Doc A/10010/Rev.1, p.18.
28 DASR, art 19. The specific international crimes listed in art 19 (3), subparas (a)–(d) are not intended to be exhaustive: Report of the International Law Commission on the work of its twenty-eighth session, 3 May–23 July 1976, UN Doc A/31/10 [“ILC Report 1976”], pp.288–9. It is nonetheless relevant to note the potential in subpara (c) for a state’s criminal responsibility in respect of its officials” “serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being …”.
29 The relevant ILC commentary, while guardedly equivocal, suggests at least the possibility of a state’s criminal responsibility for the internationally criminal conduct of its officials: “The obligation to punish personally individuals who are organs and are guilty of crimes against the peace, against humanity, and so on … does not exhaust the prosecution of the international responsibility incumbent upon the State for internationally wrongful acts which are attributed to it in such cases by reason of the conduct of its organs.”: ILC Report 1976, p.246. More recently, some members of the ILC expressed the view that “[t]he conduct of an individual could give rise to the criminal responsibility of the State which he or she represented”: ILC Report 1998, para 276.
30 “…inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”. See Pinochet (No 3) above n 2 at 847, per Lord Browne-Wilkinson; at 913, per Lord Millet; see also at 898–9, per Lord Hutton; at 903–4, per Lord Saville; at 925, per Lord Phillips.
31 Pinochet (No 3) ibid at 847, per Lord Browne-Wilkinson.
32 Pinochet (No 3) ibid at 903–4.
33 Pinochet (No 3) ibid at 924.
34 Pinochet (No 3) ibid at 913–14.
35 Note that the immunity ratione personae of a diplomatic agent may be waived by the sending State, in accordance with VCDR, art 32 (1), as incorporated in the UK via the DPA. This also applies to the serving head of state by virtue of SIA, s.20 (1). Such waiver must always be express: VCDR, art 32 (2).
36 But see the general reference in SIA, s. 2 (2), to a foreign state’s submission to the jurisdiction of the UK courts “by a prior written agreement”, a provision which is arguably capable of encompassing ECSI, art 2 (a). Note, however, that individual state officials do not fall within the scope of the SIA (see their omission from the definition of “the State” in SIA, s.14). Any doctrine of waiver in respect of state officials by way of inconsistent international agreement would have to be found at common law.
37 It is not proposed to consider whether customary international law—rooted, at least in theory, in the common consent of states as evidenced in their practice—might be considered a form of “international agreement” within the meaning of ECSI, art 2 (a).
38 Nor is this just a reference to immunity before an international tribunal, since art VI of the Convention grants criminal jurisdiction over offenders to “a competent tribunal of the State in the territory of which the act was committed”.
39 Emphasis added.
40 Explanatory Reports on the European Convention on State Immunity and the Additional Protocol (Strasbourg: Council of Europe, 1972) [“ECSI Explanatory Report”], para 21 [emphasis added]. For its part, DAJISP, art 7 (1) speaks of “[e]xpress consent” and “if [a State] has expressly consented” to the exercise of jurisdiction, in the heading and chapeau respectively; the ILC’s commentary on the article refers to “express consent by a State in the manner specified therein …”: ILC Report 1991, p.46. In the US, where waiver “either explicitly or by implication” is a recognised at §1605 (a)(1) as an exception to state immunity under the Foreign Sovereign Immunities Act, 28 USC §§ 1330, 1332 (a)(2)-(4), 1391 (f), 1441 (d), 1602- 11 [“FSIA”], the relevant congressional committee reports refer to it only in the context of possible explicit waivers: see H R Report No 94–1487 at 18, 1976 US Code Cong & Adm News 6604 at 6617.
41 ECSI Explanatory Report, para 21.
42 While the precise juridical status of an Explanatory Report is unclear, it is considered above as an element of the treaty’s preparatory works.
43 Vienna Convention on the Law of Treaties 1969, 1155 UNTS 331 [“VCLT”], art 31 (1). The immediate context to para (a) of ECSI, art 2, is provided by paras (b) and (c).
44 Ibid. It is difficult to ascribe to the ECSI a precise object and purpose beyond that of providing for common rules among Member States (preamble, third & fourth recitals) which embody the doctrine of restrictive immunity (preamble, second recital).
45 Ibid, art 32.
46 Recall, in this light, Pinochet (No 3) above n 2 at 904, per Lord Saville.
47 Recall that genocide under the Genocide Convention is not a crime of universal jurisdiction. The Convention does not, strictly speaking, embody the obligation aut dedere aut judicare but provides somewhat ambiguously in art VII that “[t]he Contracting Parties pledge themselves … to grant extradition in accordance with their laws and treaties in force”.
48 For present purposes, the Hague Rules of 1907, which do not establish universal, mandatory criminal jurisdiction over individual offenders as a matter of treaty law, are treated qua custom. See Regulations Respecting the Laws and Customs of War on Land, annexed to Convention (IV) Respecting the Laws and Customs of War on Land 1907, 205 CTS 277, 289.
49 See Pinochet (No 3) above n 2 at 903, per Lord Saville; at 925, per Lord Phillips. Those majority Lords in Pinochet (No 3) who favoured the “official function” approach also placed decisive emphasis on the Torture Convention’s establishment of universal, mandatory jurisdiction over offenders: see ibid at 847–8, per Lord Browne-Wilkinson; at 899, per Lord Hutton; at 913–14, per Lord Millet.
50 See above n 30.
51 Indeed, it is doubtful whether Lord Saville’s waiver approach in Pinochet (No 3) is any more potentially expansive than the “official function” argument favoured by Lords BrowneWilkinson, Hutton and Millet, given Lord Saville’s marked emphasis (at 903-4) on the Torture Convention’s definition of torture as necessarily carried out by a public official.
52 In the specific context of the SIA, “the substantive rules relating to the scope of jurisdictional immunity … appl[y] erga omnes and not simply in relation to other States party to the European Convention”: Sinclair, I, “The Law of Sovereign Immunity. Recent Developments” 167 (1980-II) RCADI 113 at 257Google Scholar.
53 ILC Report 1991, p.51.
54 Under the US law of implied waiver by international agreement under the FSIA, “the nations that are parties to these agreements [must have] anticipated when signing them that American courts would be the means by which the documents’ provisions would be enforced”: Frolova v. Union of Soviet Socialist Republics, 761 F 2d 370, 378 (7th Cir 1985) (re UN Charter and Helsinki Final Act); see also Argentine Republic v. Amerada Hess Shipping Co, 488 US 428 (1989), at 442-3 (re Geneva Convention on the High Seas 1958); Von Dardel v. Union of Soviet Socialist Republics, 736 F Supp 1, 6–7 (D DC 1990) [“Von Dardel (No 2)”] (re UN Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents 1973); Greenpeace, Inc (USA) v. State of France, 946 F Supp 773, 781 (C D Cal 1996) (re UN Convention on the Law of the Sea 1982). In rejecting implied waiver in respect of a civil claim based on the UN Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents 1973, GA Res 3166 (XXVIII), the court in Von Dardel (No 2), at 7, seemed to accept the possibility of such a waiver in the criminal context.
55 ECSI, art 2 (c); see also SIA, s.2 (2).