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National Courts, International Crimes and the Functional Immunity of State Officials

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Abstract

This article examines the extent to which state officials are shielded from foreign jurisdiction by functional immunity when they stand accused of committing international crimes. It argues that the development of the principle of individual responsibility for international crimes should be understood as posing a limit to the operation of the rule of functional immunity. States have agreed that international crimes, even when committed within the context of the ostensible exercise of state authority under international law, do not qualify as official acts for functional immunity purposes since they can no longer be solely attributed to the state and not to the official personally. The article thereby takes issue with the increasingly popular conceptualization of functional immunity in terms of an act of state immunity, in which attribution, rather than exclusive attribution, is the controlling notion. It does acknowledge that international law may pose limits on the competence of national courts to establish jurisdiction in certain circumstances, but proposes to undo the discussion of the shackles of immunity law and to recognize the operation of an alternative, less far-reaching legal principle.

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References

  1. R. v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte, [1999] 1 All ER 577.

  2. This article will discuss various examples in section 2. For a more comprehensive overview of practice, cf. E.I. Lutz and C. Reiger, eds., Prosecuting Heads of State (Cambridge, Cambridge University Press 2009); R.A. Kolodkin, Special Rapporteur, Second Report on Immunity of State Officials from Foreign Criminal Jurisdiction, UN Doc. A/CN.4/631 (2010), paras. 12–16.

    Google Scholar 

  3. This article is based on the ideas developed in chapters 3 and 5 of my doctoral research thesis: R. van Alebeek, The Immunity of States and their Officials in International Criminal Law and International Human Rights Law (Oxford, Oxford University Press 2008).

    Google Scholar 

  4. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, 1465 UNTS p. 85. See infra section 4.1 for a more detailed discussion of the various individual opinions in this case.

  5. Jones v. Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia), 14 June 2006, [2006] UKHL 26.

  6. Ibid., para. 46.

  7. United States v. Belfast, 611 F.3d 783 (11th Cir. 2010).

  8. Cf. infra section 3.2.2 for a brief overview of the relevant US jurisprudence.

  9. Gerechtshof Amsterdam, 20 November 2000, NJ 2001, No. 51, paras. 4.1–4.2.

  10. Lozano v. Italy, Appeal Judgment, Case No. 31171/2008, ILDC 1085 (IT 2008), 24 July 2008; Criminal Proceedings against Josef Max Milde, Corte di Cassazione, First Criminal Section, No. 1072/09, ILDC 1224 (IT 2009), 13 January 2009.

  11. Fundación Casa del Tibet and ors v. Zemin and ors, 6 January 2006, ILDC 1002 (ES 2006).

  12. See www.guardian.co.uk/law/2011/feb/06/george-bush-trip-to-switzerland (visited February 2012).

  13. Letter from the Attorney General of British Colombia, 24 October 2011, available at ccrjustice.org/files/2011-10–24%20Letter%20from%20Attorney%20General%20Staying%20the%20Case.pdf (visited January 2012).

  14. See for the ‘Einstellungsbescheid’ www.diefrrma.net/index.php?id=84,l74,0,0,1,0 (visited February 2012).

  15. Letter from the Public Prosecutor to the Paris Court of Appeal, 27 February 2008, available at ccrjustice.org/files/Rumsfeld_FrenchCase_%20Prosecutors%20Decision_02_08.pdf (visited February 2012). The Public Prosecutor tried to distinguish the case from the Pinochet case arguing that Pinochet ‘was accused of acts (kidnapping, sequestration, assassinations) that did not fall under the exercise of his functions as President but were marginal to them’. Confusingly, the Prosecutor reasoned partly in terms of personal immunity, even though Rumsfeld had left his position in 2006.

  16. Decision of the Prosecutor General at the Federal Supreme Court, 5 April 2007, available at ccrjustice.org/files/ProsecutorsDecision.pdf (visited January 2012).

  17. Germany, Oberlandesgericht Stuttgart, 21 April 2009, available at ccrjustice.org/files/Beschluss%20OLG%20Stuttgart.pdf. Cf. K. Gallagher, ‘Universal Jurisdiction in Practice, Efforts to Hold Donald Rumsfeld and Other High-level United States Officials Accountable for Torture’, 7 JICJ (2009) pp. 1087–1116 for a discussion of the French and German cases, as well as attempts to prosecute Rumsfeld and other high-level US officials in Spain.

  18. Available at www.guardian.co.uk/world/2009/dec/14/tzipi-livni-israel-gaza-arrest (visited February 2012).

  19. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, 14 February 2002, ICJ Rep. (2002) p. 3 at p. 25, para. 61 (hereinafter the ‘Arrest Warrant case’).

  20. See infra sections 3.2.1 and 3.2.2 for this criticism.

  21. Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening), Judgment, 3 February 2012, para. 91.

  22. Ibid., para. 87.

  23. Certain Criminal Proceedings in France (Republic of the Congo v. France), www.icj-cij.org/docket/index.php?pl=3&p2=3&code=cof&case=129&k=d2&p3=0 (visited January 2012).

  24. Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), pending case, www.icj-cij.org/docket/index.php?p1=3&p2=3&code=bs&case=144&k=5e (visited January 2012).

  25. Prosecutor v. Blaškić, Case No. IT-95-14, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Appeals Chamber, 29 October 1997, para. 41. Notably, the Nuremberg Tribunal considered that the nations that established the Tribunal were doing ‘together what any one of them might have done singly’, Nuremberg Judgment (International Military Tribunal, 1946), reprinted in 41 AJIL (1947) p. 172 at p. 216.

  26. Prosecutor v. Krstić, Case No. IT-98-33, Decision on Application for Subpoenas, Appeals Chamber, 1 July 2003, para. 26. Cf. also Prosecutor v. Karadžić, Case No. IT-95-5/18-PT, Decision on Accused’s Second Motion for Inspection and Disclosure: Immunity Issue, Trial Chamber, 17 December 2008, para. 17. It is noted that on appeal in the Karadžić case, the Appeals Chamber stated the principle in more general terms, neither expressly including or excluding national courts from its ambit: ‘Individuals accused of [serious violations of international humanitarian law] can have no legitimate expectation of immunity from prosecution.’ Case No. IT-95-5/18-AR73.4, Decision on Karadžić’s Appeal of Trial Chamber’s Decision on Alleged Holbrooke Agreement, Appeals Chamber, 12 October 2009, para. 52. One can only speculate as to the influence of the Arrest Warrant case on this, cf. R. van Alebeek, ‘The Judicial Dialogue between the ICJ and International Criminal Courts on the Question of Immunity’, in L. van de Herik and C. Stahn, eds., The Diversification and Fragmentation of International Criminal Law (forthcoming 2012)

  27. Al-Adsani v. United Kingdom, Appl. No. 35763/97, 21 November 2001, para. 61.

  28. Ould Dah v. France, Appl. No. 13113/03, 17 March 2009.

  29. The Court did distinguish the Pinochet case on the basis of the criminal nature of the proceedings, Al-Adsani v. United Kingdom, supra n. 27, para. 61.

  30. Jones v. United Kingdom and Mitchell & Ors v. United Kingdom, Appl. Nos. 34356/06 and 40528/06.

  31. Resolution on Immunities from Jurisdiction and Execution of Heads of State and of Government in International Law, 69 AIDI (2000–2001) p. 743.

  32. Art. III. 1 of the Resolution on the Immunity from Jurisdiction of the State and of Persons Who Act on Behalf of the State in case of International Crimes, 73 AIDI (2009) p. 226 at p. 227. See however Art. 6 of the Resolution on Universal Criminal Jurisdiction with Regard to the Crime of Genocide, Crimes against Humanity and War Crimes, 71 AIDI (2005) p. 297: ‘The above provisions are without prejudice to the immunities established by international law.’

  33. Advisory Committee on Issues of Public International Law, Advisory Report on the Immunity of Foreign State Officials, Advisory Report No. 20, 2011, available at www.rijksoverheid.nl/ministeries/bz/documenten-en-publicaties/rapporten/2011/05/0l/cavv-advies-nr.-20-immuniteit-buitenlandse-ambtsdragers-en.html (visited January 2012).

  34. Report of the Rapporteur of the Netherlands Society of International Law, M.M.T.A. Brus, ‘No Functional Immunity of State Officials for International Crimes: A Principled Choice with Pragmatic Restrictions’, 138 Mededelingen van de Nederlandse Vereniging voor Internationaal Recht [Announcements of the Dutch Society of International Law] (2011) pp. 37–81.

    Google Scholar 

  35. Kolodkin, supra n. 2, para. 90.

  36. ILC, Report of the Sixty-Third Session (2011), A/66/10, paras. 117–131.

  37. Council of the European Union, Annex to 8672/1/09 REV 1 (2009), Recommendation 8, p. 42.

  38. Prosecutor v. Blaškić, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, supra n. 25, para. 38 (emphasis added).

  39. Prosecutor v. Krstić, Decision on Application for Subpoenas, supra n. 26, paras. 20–28, cf. especially paras. 24–25.

  40. Belgium, Tribunal civil de Bruxelles, Monnaie v. Caratheodorou Effendi, JT (1903) 1903, col. 764 (emphasis added). Cf. also France, Tribunal civil de la Seine, Mellerio v. Isabelle de Bourbon (1872), 1 JDI (1874) p. 32, A.-C. Kiss, Répertoire de la pratique française en matière de droit international public, Vol. 3 (Paris, Centre National de la Recherche Scientifique 1965) p. 270; France, Cour de Paris, L’Empereur d’Autriche v. Lemaitre (1872), 1 JDI (1874) p. 32, Kiss, ibid., p. 269; France, Cour de Paris, Angelo-Poulos v. Ferton (1811), Sirey (1809–1811), 2, 514; France, Cour de Paris, Bernet et autres v. Herran, Dreyfus-Scheyer et autres (1880), Kiss, ibid., p. 237; US, Court of Civil Appeals of Texas (El Paso), Bradford v. Director General of Railroads of Mexico (1925), 3 AD 182, case no. 132; Lord McNair, International Law Opinions, Vol. 1 (Cambridge, Cambridge University Press 1956) p. 192.

  41. Italy, Tribunal of Rome, Società ArethusaFilmv.Reist (1953),22 ILR p. 544 atp. 546.

  42. Federal Republic of Germany, Federal Supreme Court, Church of Scientology Case (1978), 65 ILR p. 193 at p. 198 (emphasis added).

    Google Scholar 

  43. The Netherlands, District Court of Amsterdam, Church of Scientology in the Netherlands Foundation and Others v. (1) Herold and (2) Heinrich Bauer Verlag (1980), 65 ILR p. 380 at p. 381–382 (emphasis added).

    Google Scholar 

  44. Philippines, Supreme Court, Sanders v. Veridiano (1988), 162 SCRA 88 [1988] (emphasis added), cf. also 102 ILR p. 148. Cf. also Philippines, Supreme Court, United States of America and Others v. Guinto, Valencia and Others, United States of America and Others v. Ceballos and Bautista, United States of America, Lamachia and Others v. Rodrigo and Genove (1990), 102 ILR p. 132, esp. at p. 139; and Philippines, Supreme Court, Baer v. Tizon (May 1974); Wylie v. Rarang (May 1992); United States of America v. Reyes (March 1993), available at www.lawphil.net/judjuris/judjuris.html (visited January 2012).

  45. C. Conforti, Diritto internazionale, 3rd edn. (Naples, Scientifica 1987) p. 220 (my translation): ‘L’agente non può essere citato in giudizio per rispondere penalmente o civilmente, non perché gli sia riconosciuta una immunità ma perché non si tratta di atti suoi.’ Cf. in similar terms B. Conforti, Diritto internazionale, 6th edn. (Naples, Scientifica 2002) p. 229.

    Google Scholar 

  46. D. Anzilotti, ‘Case Comment’, 9 RDI (1915) p. 219 (my translation): ‘fatti che non a lui, ma ad un altro subietto debbono essere giuridicamente riferiti’.

    Google Scholar 

  47. In Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening), supra n. 21, the ICJ emphasized, also referring to its considerations in the Arrest Warrant case relating to personal immunity, that ‘the law of immunity is essentially procedural in nature’ (para. 58). Since the Court distinguished the rule of functional immunity, it is argued that this consideration cannot be interpreted as authority against the position advanced here.

  48. US, District Court for the District of Columbia, Herbage v. Meese (1990), 98 ILR p. 101 at pp. 106–107.

  49. Cf. US, Court of Appeals (4th Cir.), Velasco v. Government of Indonesia and Mawardi (2004), 370 F.3d 392.

  50. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, 4 June 2008, ICJ Rep. (2008) p. 177, para. 196.

  51. See for a discussion of this aspect of the ICJ judgment G. Buzzini, ‘Lights and Shadows of Immunities and Inviolability of State Officials in International Law: Some Comments on the Djibouti v. France Case’, 22 LJIL (2009) pp. 455–483 at pp. 469 et seq.

    Article  Google Scholar 

  52. See supra n. 40.

  53. Cf. in general on this case R.Y. Jennings, ‘The Caroline and McLeod Cases’, 32 AJIL (1938) p. 82.

    Article  Google Scholar 

  54. Letter Mr. Webster, 15 March 1841, 29 British & Foreign State Papers 1139, partly cited in Jennings, ibid., p. 94.

  55. Cf., e. g., G. Fenwick, ‘The Progress of International Law During the Past Forty Years’, 79 Recueil des cours (1951-II) p. 1 at pp. 62–63; G.A. Finch, ‘Jurisdiction of Local Courts to Try Enemy Persons for War Crimes’, 14 AJIL (1920) p. 218; G. Manner, ‘The Legal Nature and Punishment of Criminal Acts of Violence Contrary to the Laws of War’, 38 AJIL (1943) p. 407; A. Verdross, Völkerrecht (Berlin, Springer 1937) p. 298; H. Kelsen, Peace through Law (Chapel Hill, The University of North Carolina Press 1944) pp. 79 et seq.

    Google Scholar 

  56. Case law regarding consular officials and the personnel of military bases abroad confirms this, cf., e. g., US, Courts of Appeal (9th Cir.), Gerritsen v. De La Madrid (1987), 101 ILR p. 478; Philippines, Supreme Court, United States v. Alarcon Vergara (1990), 102 ILR p. 13; Philippines, Supreme Court, Wylie v. Rarang (May 1992) available at www.lawphil.net/judjuris/judjuris.html (visited January 2012). Van Praag already noted in 1915 that if the consul ‘sort de sa compétence, cet acte (quelle qu’en soit la qualification dans le pays qui l’a envoyé) constitue une atteinte à l’autorité de l’Etat où il réside; dans cet Etat en effet il ne lui est pas permis d’accomplir des actes officiels qui ne sont pas de sa compétence’. L. Van Praag, Juridiction et droit international public, La juridiction nationale d’après droit international public coutumier en temps de paix (The Hague, Belinfante 1915) p. 328.

  57. United Nations Secretary-General, Ruling on the Rainbow Warrior Affair between France and New Zealand (1986), 26 ILM (1987) p. 1346.

  58. Kolodkin, supra n. 2, para. 90.

  59. The Staschynskij case (1962), Entscheidungen des Bundesgerichtshof in Strafsachen 18, p. 87.

  60. Ibid., pp. 88–89.

  61. UK, High Court of Justice, Queens Bench Division, Khurts Bat v. The Investigating Judge of the German Federal Court, 29 July 2011, [2011 ] EWHC 2029 (Admin), available at www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/khurts-bat-v-federal-court-germany.pdf (visited February 2012).

  62. Ibid., paras. 83–101.

  63. Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis and Establishing the Charter of the International Military Tribunal, Annex, 82 UNTS (1951) p. 279.

  64. Nuremberg Judgment, supra n. 25, pp. 220–221.

  65. Cf. for criticism at the time, e. g., H. Kelsen, ‘Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law?’, 1 ILQ (1947) p. 153; GA. Finch, ‘The Nuremberg Trial and International Law’, 41 AJIL (1947) p. 20; F.B. Schick, ‘The Nuremberg Trial and the International Law of the Future’, 41 AJIL (1947) p. 770.

    Google Scholar 

  66. The Nuremberg principles concerned the substantive but not the procedural immunity of state officials. As the ICJ has decided in the Arrest Warrant case, the personal immunity of state officials remains unaffected by these developments.

  67. Israel, Supreme Court, Attorney-General of Israel v. Adolf Eichmann (1962), 36 ILR p. 277.

  68. Ibid., pp. 309–310.

  69. Cf. for support for this position the intervention of Redress fund, Amnesty International and Justice in Jones v. United Kingdom and Mitchell and Others v. United Kingdom (pending before the ECtHR, Appl. Nos. 34356/06 and 40528/06), paras. 10–15, www.interights.org/jones (visited January 2012); T. Rensmann, ‘Impact on the Immunity of States and their Officials’, in M.T. Kamminga and M. Scheinin, eds., The Impact of Human Rights Law on General International Law (Oxford, Oxford University Press 2009) pp. 151–170 at p. 169. Implicit support may be seen to derive from Arts. III. 1 and IV of the Resolution on the Immunity from Jurisdiction of the State and of Persons Who Act on Behalf of the State in case of International Crimes, 73 ALDI (2009) p. 226 at p. 227, since the Institut recognized ‘international crimes’ as a limit on functional immunity (Art. III. 1), but at the same time emphasized that this was ‘without prejudice to the issue whether and when a State enjoys immunity from jurisdiction before the national courts of another State in civil proceedings relating to an international crime committed by an agent of the former State’ (Art. IV). In a different vein, it is sometimes argued that the controlling notion in functional immunity decisions for serious human rights violations is human rights law. Cf., e. g., B. Stephens, ‘The Modern Common Law of Foreign Official Immunity’, 79 Fordham L Rev. (2011) pp. 2669–2719 at pp. 2704–2710, who argues that ‘violations of clearly defined, widely accepted international human rights norms … are not within the lawful authority of a government official’.

  70. Cf. for this latter question D.F. Donovan and A. Roberts, ‘The Emerging Recognition of Universal Civil Jurisdiction’, 100 AJIL (2006) pp. 142–163. As the ICJ states in the Arrest Warrant case, supra n. 19, p. 24, para. 59, ‘absence of immunity does not imply jurisdiction’.

    Article  Google Scholar 

  71. Arrest Warrant case, supra n. 19, p. 24, para. 58.

  72. A. Cassese, ‘When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case’, 13 EJIL (2002) p. 853 at p. 865. Cf. in similar sense J. Salmon, ‘Libres propos sur l’arrêt de la C.I.J. du 14 Février 2002 dans l’affaire relative au mandat d’arrêt du 11 Avril 2000 (R.D.C. c. Belgique)’, 35 RBDI (2002) pp. 514–515.

    Article  Google Scholar 

  73. Arrest Warrant case, supra n. 19, dissenting opinion Judge Van den Wyngaert, p. 153, para. 27.

  74. Ibid., pp. 155–157, para. 28, quote at p. 141, para. 5.

  75. Arrest Warrant case, supra n. 19, p. 25, para. 60.

  76. See for support for the position that the principles apply to international and national courts alike ICTY, Prosecutor v. Blaškić, IT-95-14, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, supra n. 25, para. 41.

  77. Nuremberg Judgment, supra n. 25, p. 216.

  78. Arrest Warrant case, supra n. 19, p. 25, para. 61.

  79. Ibid., separate opinion of Judges Higgins, Kooijmans and Buergenthal, p. 88, para. 85. Cf. also Gerechtshof Amsterdam, supra n. 9, paras. 4.1–4.2. The court held that ‘the commission of very grave punishable offences such as those in question cannot be regarded as the official duties of a head of state’. The terse reasoning of the court does not however reveal the argumentation underlying this conclusion.

  80. Cassese, supra n. 72, p. 868.

  81. Jones case, supra n. 5, para. 19. Cf. also para. 79 (per Lord Hoffmann).

  82. Pinochet case, supra n. 1, p. 179 (per Lord Millett).

  83. Cf. D. Akande, ‘International Law Immunities and the International Criminal Court’, 98 AJIL (2004) p. 407 at p. 414, fn. 46; O. Dörr, ‘Statliche Immunität auf dem Rückzug?’, 41 Archiv des Völkerrechts (2003) p. 201 at p. 214; S. Wirth, ‘Immunity for Core Crimes? The Id’s Judgment in the Congo v Belgium Case’, 13 EJIL (2002) p. 877 at pp. 890–891; R. Bank, ‘Der Fall Pinochet: Aufbruch zu neuen Ufern bei der Verfolgung von Menschenrechtsverletzungen?’, 59 ZaöRV (1999) p. 677 at p. 693; J.C. Barker, ‘The Future of Former Head of State Immunity After Ex Parte Pinochet’, 48 ICLQ (1999) p. 937 at p. 943; J. Bröhmer, ‘Diplomatic Immunity, Head of State Immunity, State Immunity: Misconceptions of a Notorious Human Rights Violator’, 12 LJIL (1991) p. 361 at p. 370; I. Buffard and U. Kriebaum, ‘Der Fall Pinochet: Für und wider die Immunität (I. Buffard, Argumente für die Immunität)’, in W. Karl and U. Brandi, eds., Völker- und Europarecht (Vienna, Verlag Österreich 2000) pp. 39–41. Cf. also E. Denza, ‘Ex Parte Pinochet: Lacuna or Leap?’, 48 ICLQ (1999) p. 949 for a discussion of this issue.

    Article  Google Scholar 

  84. M. Bothe, ‘Die strafrechtliche Immunität fremder Staatsorgane’, 31 ZaöRV (1971) p. 246 at p. 255 and p. 262.

    Google Scholar 

  85. Barker, supra n. 83, p. 943. Cf. also Wirth, supra n. 83, p. 891; M. Spinedi, ‘State Responsibility v. Individual Responsibility for International Crimes: Tertium Non Daturl’, 13 EJIL (2002) p. 895 at pp. 898–899; D.S. Koller, ‘Immunities of Foreign Ministers: Paragraph 61 of the Yerodia Judgment as it Pertains to the Security Council and the International Criminal Court’, 20 Am. Univ. ILR (2004) pp. 7–42 at p. 29.

  86. See Art. 1 Torture Convention; see Arts. 4 and 7, ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts 2001, UN Doc. A/CN.4/L.602.

  87. Cf. Arts. 5, 8 and 11 ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts 2001, supra n. 86.

  88. In Chuidian v. Philippine National Bank it was explained in this regard that ‘a suit against an individual acting in his official capacity [is] the practical equivalent of a suit against the sovereign directly’. Chuidian v. Philippine National Bank, 912 F.2d 1095, 1101–1102 (9th Cir. 1990).

  89. 28 USC section 1350 (1982), originally the Judiciary Act of 1789, ch. 20 section 9(b), 1 Stat. 73, 77.

  90. Filártiga v. Peña-Irala, 630 F.2d 876 (2nd Cir. 1980).

  91. 28 USC section 1350.

  92. Hilao v. Marcos (In re Estate of Ferdinand Marcos Human Rights Litigation), 25 F.3d 1467 (9th Cir. 1994). Cf also, e. g., Cabiri v. Assasie-Gyimah, 921 F. Supp. 1189 (SDNY 1996).

  93. Hilao v. Marcos, supra n. 92, pp. 1470–1471, quotation at p. 1470.

  94. Ibid., p. 1472

  95. Ibid.

  96. With the exclusion of claims directed against so-called state sponsors of terrorism, cf. section 1605(7) FSIA. Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104–132, 110 Stat. 1214(1996).

  97. Xuncax and Others v. Gramajo and Ortiz v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995), 104 ILR p. 165.

  98. Doe v. Liu Qi, 349 F. Supp. 2d 1258 (ND Cal. 2004).

  99. Belhas v. Ya’alon, 515 F.3d 1279 (DC Cir. 2008).

  100. Matar v. Dichter, 563 F.3d 9 (2nd Cir. 2009).

  101. Yusuf v. Samantar, 552 F.3d 371 (4th Cir. 2009). As will be discussed infra section 4.1 the Supreme Court overturned this case.

  102. It is interesting to note that the applicability of the FSIA to TVPA and ATCA cases was thought to be highly unlikely since it would require a foreign state to implicate itself in tortuous activity. Senator Specter mused during the debates on the TVPA, ‘[i]n order to take advantage of the FSIA, a [TVPA] defendant would have to prove an agency relationship with the foreign state, which would have to admit some knowledge or authorization of relevant acts’. The FSIA would therefore, he argued, ‘not normally provide a defense to an action under this act’. 138 Cong. Rec. S2668 (daily edn., 3 March 1992). Cf. also the House Report, H.R. Rep. No. 367, 102d Cong., 2d Sess. 5 (1992), reprinted in 1992 USCCAN 84, 88; Senate Report on the TVPA, S. Rep. 102–249, 102d Cong., 1st Sess. at 8 (1991).

  103. Doe v. Liu Qi, 349 F. Supp. 2d 1258 (ND Cal. 2004) at p. 1287.

  104. Yusuf v. Samantar, 552 F.3d 371 (4th Cir. 2009).

  105. Ibid.

  106. Samantar v. Yousuf, 130 S. Ct. 2278 (2010). The Supreme Court left some room for the state immunity defence in cases against state officials, cf. text accompanying n. 126 infra.

  107. Cf., e. g., S. Knuchel, ‘Samantar v Yousuf. Narrowing the Prospects for Human Rights Litigation against Foreign Officials?’, 11 Human Rights L Rev. (2011) pp. 152–169; I. Wuerth, ‘Foreign Official Immunity Determinations in U.S. Courts: the Case against the State Department’, 51 Virginia JIL (2011) pp. 915–976; Stephens, supra n. 69, pp. 2669–2719.

    Article  Google Scholar 

  108. The State Department determined that Samantar was not entitled to ‘official immunity’, but attached decisive importance to the fact that ‘the Executive Branch does not currently recognize any government of Somalia’ and that hence no ‘entity is capable of waiving or asserting a claim on behalf of a former Somali official or of taking a position on whether Defendant’s alleged acts were taken in an official capacity’, cf. Statement of Interest of the United States of America, issued 14 February 2011, para. 12–13, www.cja.org/downloads/Samantar_Stmt_of_Interest.pdf (visited February 2012). The US District Court for the Eastern District of Virginia ruled in an Order issued the following day that ‘[f]he government has determined that the defendant does not have foreign official immunity. Accordingly, defendant’s common law sovereign immunity defense is no longer before the court…’, cf. www.cja.org/downloads/Samantar_Order_Denying_Common_Law_Immunity.pdf (visited February 2012). Interestingly, in its Amicus Curiae Brief in Samantar v. Yousuf et al., 560 US (2010) (No. 08–1555) the State Department stated repeatedly that its suggestions were ‘informed by customary international law’: www.abanet.org/publiced/preview/briefs/pdfs/09-10/08-1555_AffirmanceAmCuUSA.pdf (visited February 2012).

  109. Cf. the text accompanying n. 126 infra for the (very little) guidance provided by the Supreme Court on this matter.

  110. See, e. g., Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), itsupran. 50, para. 188. See n. 152 infra.

  111. Section 20.1, 1978 State Immunity Act provides that ‘subject to the provisions of this section and to any necessary modifications, the Diplomatic Privileges Act 1964 shall apply to (a) a sovereign or other Head of State; (b) members of his family forming part of his household; and (c) his private servants, as it applies to the head of a diplomatic mission, to members of his family forming part of his household and to his private servants.’ The Diplomatic Privileges Act 1964 gives effect to the 1961 Vienna Convention on Diplomatic Relations. Art. 39(2) of that Convention provides: ‘When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist [emphasis added].’

  112. Pinochet case, supra n. 1, para. 111.

  113. Ibid., para.146, indeed referring to the well-known state immunity decision of the House of Lords in I Congreso del Partido, [1981] 2 All ER 1064, p. 1070.

  114. Ibid., para. 171.

  115. Jones case, supra n. 5, para. 10 (per Lord Bingham), para. 66 and further (per Lord Hoffmann).

  116. Pinochet case, supra n. 1; UK, House of Lords, Holland v. Lampen-Wolfe (2000), [2000] 1 WLR 1571. Cf. also UK, Court of Appeal, Twycross v. Dreyfuss (1877), 5 Ch. D. 605; UK, Court of Appeal, Zoernsch v. Waldock and Another (1964), 41 ILR p. 438; UK, Court of Appeal, Propend Finance Pty. v. Sing (1997), 111 ILR p. 611; Canada, Ontario Court of Appeal, Jaffe v. Miller (1993), 95 ILR p. 446.

  117. Jones case, supra n. 5, para. 12.

  118. Ibid., para. 74. Cf. also para. 66.

  119. ILC, Report on the Work of Its Fifty-Third Session (2001), A/56/10, Responsibility of States for Internationally Wrongful Acts, Text of the draft articles with commentaries thereto, Art. 4, p. 91, para. 13.

  120. Cf. Art. 7 ILC Articles on the Responsibility of States for Internationally Wrongful Acts 2001, supra n. 86.

  121. Lozano v. Italy, supra n. 10, para. 5.

  122. Ibid. Confirmed in Criminal Proceedings against Josef Max Milde, supra n. 10. This is notable, since in Italian doctrine, traditionally, a different conception of the rule of functional immunity has been most emphatically advanced, cf. supra section 3.1.

  123. Samantar v. Yousuf, 130 S. Ct. 2278 (2010).

  124. Foreign Sovereign Immunities Act of 1976, Pub. L. No. 94–583, 90 Stat. 2891, 15 ILM (1976) 1383.

  125. Verlinden BV v. Central Bank of Nigeria, 461 US 480, 486 (1983). Cf. on this point J. Finke, ‘Sovereign Immunity: Rule, Comity, or Something Else?’, 21 EJIL (2010) p. 853; H. Fox, The Law of State Immunity, 2nd edn. (Oxford, Oxford University Press 2008) p. 14.

  126. Samantar v. Yousuf, 130 S. Ct. 2278 (2010). Referring to Republic of Philippines v. Pimentel, 553 US 851, 867 (2008) (‘[W]here sovereign immunity is asserted, and the claims of the sovereign are not frivolous, dismissal of the action must be ordered where there is a potential for injury to the interests of the absent sovereign’).

  127. Cf. n. 108 supra for the suggestion of immunity issued by the State Department in the Samantar case on remand to the lower courts.

  128. United Nations Convention on Jurisdictional Immunities of States and Their Property 2004, UN Doc. A/RES/59/38.

  129. ILC Draft Articles on Jurisdictional Immunities of States and their Property, with commentaries, ILC Yearbook (1991) Vol. II, Part Two, pp. 13 et seq. (1991 ILC Commentary), adopted on second reading A/CN.4/L.457, ILC Yearbook (1991) Vol. I, p. 71, Commentary to Art. 2, para. 18.

  130. Ibid., Commentary to Art. 6, para. 11.

  131. R.A. Kolodkin, Special Rapporteur, Preliminary Report on Immunity of State Officials from Foreign Criminal Jurisdiction, A/CN.4/601 (2008), para. 89; idem, supra n. 2, para. 24. Cf. also the commentators mentioned in nn. 84 and 85 supra.

  132. D. Akande and S. Shah, ‘Immunity of State Officials, International Crimes, and Foreign Domestic Courts’, 21 EJIL (2010) pp. 815–852.

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  133. Ibid., pp. 826–827.

  134. E. g., A. Orakhelashvili, ‘State Immunity and Hierarchy of Norms: Why the House of Lords Got It Wrong’, 18 EJIL (2007) pp. 955–970; CK. Hall, ‘The Duty of States Parties to the Convention against Torture to Provide Procedures Permitting Victims to Recover Reparations for Torture Committed Abroad’, 18 EJIL (2007) pp. 921–937; L. McGregor, ‘Torture and State Immunity: Deflecting Impunity, Distorting Sovereignty’, 18 EJIL (2007) pp. 903–919; E Steinerte and R.M.M. Wallace, ‘Jones v. Ministry of the Interior of the Kingdom of Saudi Arabia’, 100 AJIL (2006) pp. 901–908.

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  135. Cf. Italy, Court of Cassation, Ferrini v. Germany, ILDC 19 (IT 2004).

  136. Cf. Van Alebeek, supra n. 3, pp. 316–320 and pp. 366–408. For a critical discussion of the jus cogens argument cf. Akande and Shah, supra n. 132, pp. 832–838.

  137. Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening), itsupra n. 21.

  138. Pinochet case, supra n. 1; Jones case, supra n. 5.

  139. The argumentation of two Lords seemed to transcend the particulars of the Torture Convention. Lord Millett’s decision did rely on the definition of torture, but without regarding the terms of the Torture Convention to be relevant. ‘International law’, he wrote, ‘cannot be supposed to have established a crime having the character of jus cogens and at the same time to have provided an immunity which is co-extensive with the obligation it seeks to impose’. Pinochet case, supra n. 1, para. 179. However, it is unclear whether the status of the perpetrator is inherent in the definition of torture, or whether it is a limitation which is specific to the Torture Convention. More importantly, not all crimes against international law can only be committed in an official capacity, and the scope of the denial of immunity by Lord Millett can therefore be questioned. Only Lord Hutton’s reasoning clearly extended to all international crimes.

  140. Art. 1(1) of the Torture Convention provides that torture ‘is 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’.

  141. Pinochet case, supra n. 1, para. 152, paras. 188–189.

  142. 150 states are currently party to the CAT, treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&lang=en (visited February 2012).

  143. Jones case, supra n. 5.

  144. Akande and Shah, supra n. 132. Cf. text accompanying n. 133 supra.

  145. Ibid., p. 840.

  146. Ibid.

  147. Ibid., p. 843. A comparable exercise was undertaken by the Rapporteur of the Netherlands Society of International Law, Brus, in his Report, supra n. 34, pp. 37–81. According to the Rapporteur the rationale of the functional immunity rule — ‘the protection of the sovereignty of a state against the exercise of jurisdiction by another state against a person who has acted on behalf of that state. Par in parem non habet Imperium’ — does not come into play when international criminal jurisdiction is exercised through national courts ‘because the prosecuting state acts on behalf of the international community and not as an equal sovereign and does not by doing so act as a judge over the behaviour of another state’ (pp. 64–65). Interestingly, the Rapporteur seems to want to limit the consequences of his argument by also emphasizing that it is the individual, and not the state that stands trial when an official is sued for international crimes. This attempt to safeguard the immunity of the state itself is however not convincing. If the par in parem rationale does not come into play, it does not matter whether it is the official or the state that appears before the court.

  148. Sosa v. Alvarez-Machain, 542 US 692 (2004), concurring opinion Justice Breyer.

  149. Akande and Shah, supra n. 132, p. 852.

  150. Cf. for a classic example the text accompanying n. 40 supra. See also Kolodkin, supra n. 2, para. 28: ‘An official performing an act of a commercial nature, if this act is attributed to the State, enjoys immunity from foreign jurisdiction, but the State itself, in respect of such an act, does not’; Buzzini, supra n. 51, pp. 463–464.

  151. When an act qualifies as ‘official’ under the functional immunity rule, a court can come to two distinct conclusions. Either it concludes that the state official is necessarily sued in his official capacity and that hence the foreign state appears before the court and the rule of state immunity applies; or, when it is clear that the state official is in fact sued in his personal capacity, it concludes that it has the wrong defendant before it and declares the claim inadmissible. It is important to note, though, that under the first construction, any exception to the rule of state immunity only applies to the official in his or her official capacity, and hence applies in fact to the state only. The difference in approach is illustrated by two cases which had very similar facts: Federal Republic of Germany, Federal Supreme Court, Church of Scientology Case (1978), 65 ILR p. 193; The Netherlands, District Court of Amsterdam, Church of Scientology in the Netherlands Foundation and Others v. (I) Herold and (2) Heinrich Bauer Verlag (1980), 65 ILR p. 380, NJ 1981, No. 501.

  152. The position advanced in this article is not incompatible with Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), itsupra n. 50, para. 188. According to the ICJ, the argument of Djibouti that its Procureur de la République and the Head of National Security enjoyed functional immunity from French jurisdiction since acts committed by an organ of a foreign state in their official capacity are to be attributed to the state, and not to the individual boiled down to ‘a claim of immunity for the Djiboutian State, from which [the state officials] would be said to benefit’. While admittedly the Court did not recognize the distinction between the rule of functional immunity and the rule of state immunity, it neither stated that the rule of state immunity is applicable whenever an individual is sued for an act that can be attributed to a foreign state and is therewith still reconcilable with the position advanced here.

  153. Van Anraat case, LJN: AX6406, District Court of The Hague, 23 December 2005, no. 09/751003-04, para. 4.2, English translation available at http://zoeken.rechtspraak.nl/resultpage.aspx?snelzoeken=true&searchtype=kenmerken&vrije_tekst=AX6406 (visited January 2012). Mr. van Anraat sold chemicals to the government of Saddam Hussein during the Iraq-Iran war, which were used to produce poison gas and he was convicted of complicity in violations of the laws and customs of war.

  154. Jones case, supra n. 5, para. 68.

  155. This distinction was first noted by De Sena: P. De Sena, Diritto internazionale e immunità funzionale degli organi statali (Milan, Giuffrè 1996) p. 139. Also in P. De Sena, ‘Immunity of State Organs and Defence of Superior Orders as an Obstacle to the Domestic Enforcement of International Human Rights’, in B. Conforti and F. Francioni, eds., Enforcing Human Rights in Domestic Courts (The Hague, Nijhoff 1997) p. 367; P. De Sena, ‘Immunité di ex-capi di Stato e violazioni individuali del divieto di tortura: sulla sentenza del 24 Marzo 1999 della Camera dei Lords nel case Pinochet’, 82 RDI (1999) p. 933.

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  156. F.A. Mann, ‘International Delinquencies before Municipal Courts’, 70 LQR (1954) p. 181 at p. 196. See in the same sense P. Weil, ‘Le contrôle par les tribunaux nationaux de la licéité internationale des actes des États étrangers’, 23 AFDI (1977) p. 9 at p. 47.

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  157. Israel, Supreme Court, Attorney-General of Israel v. Adolf Eichmann (1962), 36 ILR p. 277.

  158. Féderation National des Déportées et Internés Résistants et Patriotes and Others v. Barbie, 78 ILR p. 125, (1985) 78 ILR p. 124, (1988) 100 ILR p. 330 (France, Court of Cassation (Criminal Chamber) 1983 and 1984).

  159. US, Court of Appeals (6th Cir.), Demjanjuk v. Petrovky (1985), 79 ILR p. 538.

  160. Canada, High Court of Justice, Regina v. Pinta (1989), 93 ILR p. 424.

  161. Kadić v. Karadžić, 70 F.3d 232 (2nd Cir. 1995).

  162. De Sena 1996, supra n 155, p. 139.

  163. Pinochet case, supra n. 1, p. 101. The events that took place in Chile during the military regime have been the subject of thorough investigation, both in Chile (e. g., Report of the Chilean National Commission on Truth and Reconciliation (The Rettig Report) (transi. P.E. Berryman, Notre Dame, Ind., University of Notre Dame Press 1993) as well as on the international level (e. g., Amnesty International, United Nations). See for more information: International Commission of Jurists, Crimes against Humanity: Pinochet Faces Justice (Châtelaine, ICJ 1999); R.J. Wilson, ‘Prosecuting Pinochet: International Crimes in Spanish Domestic Law’, 21 Human Rights Quarterly (1999) p. 927.

  164. Buttes Gas v. Hammer, [1982] AC 888.

  165. Kuwait Airways Corporation v. Iraqi Airways Company and Others, [2002] 2 AC 883, 125 ILR p. 602 at p. 677.

  166. Ibid., p. 682, para. 20.

  167. Ibid., p. 685, para. 29.

  168. Cf. also Petrotimor Companhia de Petroleos S.A.R.L. v. Commonwealth of Australia, [2003] FCAFC 3, para. 63, where the court held that ‘the facts in the present case are much closer to those in Buttes than to those in the Kuwait case’ because in Kuwait ‘the breach of international law had been determined by the Security Council acting under the United Nations Charter’.

  169. See for the establishment of the ICTY, SC Res. 827 (1993); and for the establishment of the ICTR, SC Res. 955(1994).

  170. Cf., e. g., CS. Nino, Radical Evil on Trial (New Haven, CT, Yale University Press 1996).

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  171. Cf., e. g., P. Klein, ‘Responsibility for Serious Breaches of Obligations deriving from Peremptory Norms of International Law and United Nations Law’, 13 EJIL (2002) p. 1241 at p. 1247.

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  172. R. v. Bow Street Metropolitan Stipendiary Magistrate and others, ex p Pinochet Ugarte, [1998] All ER (D) 509, para. 63 (UK, The Divisional Court of the Queen’s Bench Division, 1998). A similar question was posed by Kolodkin, supra n. 2, para. 61: ‘If the illegal official acts of an official are as a general rule attributed to the State and continue to be considered as its, i. e. official, acts, then why do the most grave of these cease to be attributed to the State and lose their official character?’

  173. Prosecutor v. Blaškić, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, supra n. 25.

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    Rosanne van Alebeek (Assistant Professor of Public International Law)

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van Alebeek, R. National Courts, International Crimes and the Functional Immunity of State Officials. Neth Int Law Rev 59, 5–41 (2012). https://doi.org/10.1017/S0165070X12000022

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