Immunity and international crimes: the case for a moot problem

02-03

ICL PSQ (Tutorial)
Silvia Bronzatura is the Ministernfor Tourism of Contacky, a state blessed with glorious beaches and year-roundnsun but inconvenienced, as Silvia sees it, by an indigenous population that isnforever protesting the construction of marinas and resorts on their supposedlynsacred sites. In early 2016, in the interests of inward investment, Silvianorders the 『disappearance』 of the indigenous chieftains and elders, thendemolition of all indigenous villages, and the relocation of the entirenindigenous population into cheerfully-coloured, asbestos-lined 『holiday huts』 innthe crater of an extinct volcano. To congratulate herself on a job well done,nSilvia flies off for a week』s vacation in the cash-strapped alpine state ofnAusteria, where hotels are cheaper than at home, en route to the annual meetingnof the International Federation of Tourist Traps in Skegness, UK.
On her arrival in Austeria, Silvianis welcomed by a quaint little local law enforcement officer bearing an internationalnarrest warrant and a Glock semiautomatic pistol, who promptly detainsnher. She is eventually prosecuted in Austeria for crimes of genocide as definednin article II(a) and (b) of the Convention on the Prevention andnPunishment of the Crime of Genocide 1948 and for the crime of enforcedndisappearance within the meaning of article 2 of the International Conventionnfor the Protection of All Persons from Enforced Disappearance 2006. She isnconvicted and sentenced to life imprisonment. Silvia』s acts satisfy thendefinitions of genocide and enforced disappearance respectively. Both Austerianand Contacky are states parties to the Convention on the Prevention andnPunishment of the Crime of Genocide and the International Convention for thenProtection of All Persons from Enforced Disappearance. Both accept that thencrime of genocide is punishable under customary international law on the basisnof universal jurisdiction.

You are asked by the state ofnContacky to advise it on the international lawfulness of Austeria』s actions.nAdvise Contacky.

Answer:

The issue being advised here isnwhether the issuance of the International Arrest Warrant, detention,nprosecution of Silvia Bronzantura for crimes of genocide and crimes of enforcedndisappearance by Austeria, constituted violations of a legal obligation ofnAusteria towards Contacky, in that they failed to respect the immunity fromncriminal jurisdiction and inviolability which the incumbent Minister of tourismnSilvia Bronzatura of Contackey enjoyed under international law. This can benseparated into the following issues: nn

1. Whether issuance of International ArrestnWarrant, detention, prosecution fall into the content of immunity andninviolability

Under international law, certainnholders of high office enjoy immunity and inviolability from foreign criminalnjurisdiction. Immunity refers to subjection to judicial process whileninviolability pertains to subjections to measures of physical constraint ornother interference.

According to Arrest Warrantnand Certain Questions of Mutual Assistance in Criminal Matters, the testnin assessing whether a particular act on the part of the foreign state fallninto the contents of immunity and inviolability is whether the act of authoritynof another state would hinder the official in question in the performance ofnduties and the decisive factor lies in the subjection of the person in questionnto a constraining act of authority. In Arrest Warrant, ICJ here the merenissuance and circulation of warrant of arrest infringed the immunity fromncriminal jurisdiction and inviolability in international law.

In the present case, issuance ofnInternational Arrest Warrant, detention, prosecution are acts that would amountnto 『subjection of Silvia Bronzatura to the constraining acts of Austeria thusnare covered by immunity and inviolability. If there must be a separationnbetween immunity and inviolability, then issuance of arrest warrant andnprosecution go to immunity while detention goes to inviolability.

2. Immunity Ratione Materiae andninviolability

2.1 Whether the person in questionnenjoy immunity ratione materiae

nnImmunitynRatione Materiae from foreign criminal adjudication is a function ofnstate immunity based on the notion of sovereign equality, which is implied bynICTY Appeal Chamber Blaskic and adopted by ILC』s first special rapporteur onnthe immunity of state officials from foreign criminal jurisdiction, and has notnbeen disputed by states in the Sixth Committee.

Innorder to benefit from immunity ratione materiae, the conducts being chargednmust be acts performed in official capacity. Different from civil proceedingsnwhich differentiate between act jure imperii and acta jure gestionis, thenlatter of which serves as a ground to preclude immunity in civil proceedings,n state officials benefit from immunity ratione materiae in foreignncriminal proceedings regardless of whether the acts performed in officialncapacity are exercises of sovereign authority or are of a nature such that anynprivate person could perform them. This is confirmed by a dictum of ArrestnWarrant and implied by Certain Questions of Mutual Assistance (Djibouti v.nFrance), as well as adopted by the ILC』s special rapporteur.

Inndetermining what constitute 『acts performed in an official capacity』, accordingnto Djibouti v. France, the test is the same for attribution of statenresponsibility and Art. 4 and 7 of ILC Draft Articles on State Responsibilitynare particularly relevant in this regard. Accordingnto Art. 4(1) of ILC Draft Articles on State Responsibility, the acts conductednby organs of states should be considered acts of states. Here, then『disappearance』 of the indigenous people, demolition of villages and relocationnof people ordered by Silvia Bronzatura are acts carried out by state organs andntherefore state acts. Evennif the acts were ultra virus of the duty of Silvia, they may nonethelessnstill constitute acts in official capacities and the motives behind the actsnare irrelevant, which is confirmed by Art 7 ILC Draft Articles, ILC』s specialnrepporteur and emphasized by some domestic cases (eg. UK R v. Bow StreetnMetropolitan Stipendiary Magistrate and Pinochet (no. 3))

2.2 Whether there is an exceptionnto immunity due to the characterization of the acts as international crimes

2.2.1 On the charge of the crimenof enforced disappearance

It may be argued thencharacterization of the act as crime of enforced disappearance can serve as annexception to immunity ratione materiae. The reasoning of Pinochet (no.3)nmaybe cited to support this view. In Pinochet(no.3), the court held that thentreaty crime of torture can serve as an exception not immunity because thenTorture Convention』s definition of torture as requiring an exercise of officialncapacity in combination with the mandatory universal jurisdiction and thenobligation aut dedere aut judicare must be taken to mean that statenimmunity cannot attach to the treaty crime of torture. In the same vein,nConvention on the Crime of Enforced Disappearance is also defined as acts thatncan be exercised by people in official capacities (Art. 2) and it also imposenthe mandatory universal jurisdiction and obligation aut dedere aut judicaren(Art. 9), therefore in the present case, there is an exception to immunitynratione materiae.

But the reasoning in Pinochetn(no.3) is subject to criticism. First, Pinochet (no .3) had better been seen asnimplied waive of immunity by the state of the accused. Second, the treaty innquestion has better been view as states express waiver of state immunity onlynin relation to the international crime by the treaty. While with regard tonother international crimes, especially those defined by customary internationalnlaw, the same reasoning cannot be equally applied.

2.2.2 On the charge of thencrime of genocide

nnItnmay be argued by citing some state practice (eg. Lozano, A v. Ministere, andnstatements by Peru, Singapore, Austria and Netherlands in the Sixth Committee)nthat international crimes are excluded from immunity ratione materiae. But thenimplicit reasoning in Arrest Warrant and Jurisdictional Immunities suggestnotherwise. That international crimes cannot be excluded from immunity rationenmateriae is also adopted by ILC』s special rapporteur and expressly agreed bynmany states such as China, France, and Russia.

Asna matter of normative arguments, to assert that there should be an exceptionnbased on international flaws may entail many problems. Firstly, such annassertion has a logical error because it prejudges the merits when determiningna procedural issue of immunity which exists to prevent determination of merits.nSecondly, those who support the allegation may argue that civil proceedingsnallow for exceptions for immunities and in the same vein, exceptions of statenimmunity may also exist in criminal proceedings. But exceptions to statenimmunity in civil proceedings do not involve prejudging the merits – fornexample, the 『commercial transaction』 exception does not involve determinationnon the merit question of whether there is a breach of contract, which isndifferent from criminal proceedings. Thirdly, it may be argued thatninternational crimes, owing to its devil nature, can never be performed in annofficial capacity. But as is mentioned above, the propriety or desirability ornmotive of the act is immaterial to immunity.

Allnin all, charges of international crimes are not and should not serve as annexception to immunity ratione materiae and therefore the person innquestion enjoy such immunity. However, Pinochet (no. 3) may be used as a strongncase to support that an international crime can serve as exception to statenimmunity. If the logic of this case is followed, it is quite likelynthat Silvia will not enjoy immunity ratione materiae due to the charges ofnenforced disappearance.

nnn3. Whether Silvia Bronzatura enjoys immunity RationenPersonae and inviolability

n3.1 Whether Silvia Bronzatura enjoys immunity RationenPersonae and inviolability by virtue of her position as minister of Tourism nnn

Certain state officials benefit immunity andninviolability under international law by virtue of their particular position,nwhich can only be waived by the state that the official serves. Three officencommonly accepted holders who enjoy immunity ratione personae include heads ofnstate, heads of government and ministers for foreign affairs. This may not benan exhaustive list. Cases exist in which other state official may be grantednsuch immunity.(eg. Djibouti v. France, in which France argued thatnminister of education and minister of national security do not enjoy thenimmunity Ratione Personae; In Khurts Bat, the English High Courtnconcluded a mid-ranking official was not entitled to the immunity RP).

Arrest Warrant can inform us on the criteria in determining which further officialnposition may be added to the non-exhaustive list. ICJ adopted a policy-orientednapproach to this question. The court did not refer to any state practice ornopinio juris but just reasoned that immunities ensure the effective performancenof functions on behalf of their respective states. In that case, a minister ofnforeign affairs 『is frequently required to travel internationally, and thusnmust be in a position freely to do so whenever the need should arise』 andntherefore immunity Ratione Pesonae should be granted to persons servingnthis position. nn

State practice and opinio juris do not generallynsupport that a Minister of Tourism also enjoy immunity Ratione Personae.nEven the policy-oriented approach in Arrest Warrant is applied, it maynnot be generally accepted that minister of Tourism should also be accorded withnimmunity Ratione Personae and inviolability because minister of tourismndoes not need to travel internationally as frequently as minister of foreignnaffairs do and the immunity Ratione Personae is not indispensable fornexercise of his or her functions. Therefore, Silvia Bronzatura may not enjoynimmunity Ratione Personae and inviolability by virtue of her position asnminister of Tourism.

3.2 Whether Silvia Bronzatura enjoys immunity RationenPersonae and inviolability by virtue of her task in participating the annualnmeeting in UK

nnnnImmunity Ratione Personae and inviolability cannbe granted to a range of other state officials whose short-term tasks place themnon a conceptual part with diplomatic agents (official visitors). This rule isncodified in 1969 Convention on Special Missions 1969 and reflect customaryninternational law. Customary international law provides for some minimumnRequirements for an Official Visit Attracting Immunity: (1) the need for thenvisitor to represent the sending state; (2) the need for the receiving state tonconsent to the Visit as one Attracting Immunity. nn

Silvia Bronzatura can enjoy immunity Ratione Personae and inviolability if it cannbe proved the above criteria have been satisfied. It is advised that Contackeynshould make statements that Silvia Bronzatura is sent to UK tonparticipate the annual conference as a state representative. Moreover, it isnadvised that Contackey should ensure that UK, the receiving state, agree that SilvianBronzatura was sent by Contackey to UK as an official visitor entitled tonimmunity. There is no strict requirement that the consent must be given innadvance and whether consent is given is a matter of policy rather than a matternof international law. Therefore, as long as Contacky can make such agreementsnwith UK, it is very likely Silvia Bronzatura can enjoy immunity ratione personae and inviolability. nn

As to the issue of exception, in relation to immunity granted by treaties, there is certainly no such 『international crime』 exception, as confirmed by the provisions in VCDR, CSM, etc. For immunity ratione personae under customary international law, ICJ in Arrest Warrant categorically ruled that there is no exception in relation to grave breaches of Geneva Convention and crimes against humanity to the immunity ratione personae from which a serving minister or foreign affairs benefits. In the same vein, no exception existed in relation to other international crimes to immunity ratione personae. This also welcomed by most states, applied in a number of domestic courts and accepted by the majority of ILC when discussing the special repporteur』s conclusion on the matter. It is also considered not disputed in Al Bashir case in the ICC. Thus, to the extent that Silvia can enjoy immunity ratione personae (either because her position as a minister of Tourism, or her roles a representative of a state in a special mission), there exist no international crime exception to this immunity.