Statement by Dr. Rohan Perera P.C , Member International law Commission, (ILC) at the 60th Session of ILC, Geneva – 29 July 2008 – during the debate on the item Immunity of State Officials from Foreign Criminal Jurisdiction .
I wish to join all previous speakers in complementing the special Rapporteur, Mr. Roman Kolodkin for his comprehensive, well researched preliminary report which would serve as a solid basis for our future work on immunity of state officials from foreign criminal jurisdiction, a topic of considerable contemporary relevance. I also wish to thank the secretariat for the comprehensive memorandum on the topic which provides extremely useful background material to facilitate our work.
I wish to make some brief remarks on the basic approach adopted by the Special Rapporteur in presenting the preliminary report.
In delimiting the scope of the topic, the Special Rapporteur underlines the fact that the treatment of the subject concerns only immunity of state officials from foreign criminal jurisdiction and not immunity from international criminal jurisdiction, which is governed by special regimes. This distinction needs to be borne in mind as one approaches the more complex issues that need to be dealt with in the examination of this topic.
The first part of the report is a very comprehensive treatment of the history, the sources and of the concepts of immunity and jurisdiction respectively.
This useful analysis leads to part 2 of the report which contains the core issues to be considered when defining the scope of the topic. I will confine my remarks to these issues, in particular to the issue of persons to be covered.
As the report pertinently observes in paragraph 111, heads of state, heads of governments and Ministers of Foreign Affairs constitute the “basic threesome” or the trimverate of state officials who enjoy personal immunity. Under International law, it is these three categories of officials who are accorded special status by virtue of their office and of their functions.
Their special status is evidenced by the provisions of key international conventions, in particular the Vienna Convention on the Law of Treaties, which accords these persons, by virtue of their functions, the competence to perform all acts relating to the conclusion of a treaty.
The special status of this category is also confirmed, as pointed out in the report, under the Convention on Special Missions, the Convention on the representation of states in their relations with international organisations and the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons.
Further, the judgement of the ICJ in the Arrest Warrant Case expressly pronounced in favour of the immunity ratione personae of this category of persons in the enjoyment of immunity from jurisdiction of other states, both civil and criminal./
While acknowledging that the joint separate opinions of several judges cast doubt on the proposition that the Ministers of Foreign Affairs are entitled to the same immunities as heads of states. It is nevertheless important to view this issue as the majority opinion had done from the perspective of the pre-eminent role performed by the minister of foreign affairs in contemporary international affairs, as the principle intermediary between a sovereign state and the international community of states.
The centrality of his role in the conduct of international affairs on behalf of the sovereign would demand that the minister of foreign affairs be treated on par with the head of state, with regard to the scope and extent of the jurisdictional immunities he would enjoy. The basic rationale which underlined the according of jurisdictional immunities to a head of state would apply with equal force to a foreign minister, given the representative character and the functional role of the latter.
It is also important to bear in mind in this regard that the commission was guided by the principle of functional necessity, while also bearing in mind the representative character of a head of mission, in its formulation of draft articles on diplomatic immunities, which now constitute the Vienna Convention on diplomatic relations. Functional necessity and the representative character must therefore be the guiding criteria in according absolute immunity to a foreign minister under whose authority ambassadors and other diplomatic agents carry out their duties. Taking into account these criteria, the immunity enjoyed by a foreign minister must survive the termination of office.
In moving on to categories of officials, other than the well recognised “threesome”, the Commission enters into somewhat uncertain grounds which call for a cautious approach.
Here we are presented with a situation where important international conventions, such as the convention on special missions and the convention on the representation of states in their relations with international organisations acknowledge the existence of a category of “other persons of high rank” without proceeding to elucidate such categories. The arrest warrant judgement of the ICJ while confirming the existence of such a category, does not proceed beyond this.
In this situation, the Special Rapporterus recommends in paragraph (e) of the summary, that an attempt may be made to determine which other high ranking officials, in addition to the “threesome” mentioned, enjoy immunity ratione personae and that it would be possible to single out such officials, from among all high ranking officials if the criterion or criteria justifying special status for this category could be defined.
The approach of the Commission on this issue should indeed be a criteria based approach rather than an enumerative approach. A listing of officials on the basis of their functions or representative character would essentially be determined by the constitutional and other internal arrangements of each state and would vary from state to state.
It would therefore be far more productive and useful for the Commission to embark on a process of identification and defining of applicable criteria, in according jurisdictional immunities to high ranking officials, paying due regard to the functional and representative character principles. This process by identifying specific common elements would be a useful pointer to the other categories sought to be covered.
In the identification of such criteria, the representation of the state in international relations being an indispensable part of the functions of the official should be paramount. It is useful to note in this regard the reference in paragraph 120 of this report to the submission of counsel in the Djibouti vs. France case in the ICJ, where the representation of the state in international relations being an indispensable and inherent part of the functions of the officials seeking to enjoy immunity had been stressed. Prof. Caflische, too in his intervention during the debate underlined the necessity of a very high degree of involvement in the conduct of foreign affairs by such officials, in order to avoid a liberal expansion of the scope of immunity. These should be the primary criteria that need to be identified and defined in this process.
The report cites the changes that have taken place in the modern world as the objective reasons for the gradual expansion of the categories of officials enjoying immunity from jurisdiction. It is from this perspective that one must view the role and function of the holders of office such as that of a Trade Minister or Defence Minister. The representative character and functions of a Trade Minister in the context of Global trade negotiations in the WTO era, or that of a Defence Minister, particularly in situations of stationing of troops on foreign soil or other activities relating to military alliances, would appear to justify the holders of such office being regarded as “other high-ranking officials”, using the criteria referred to above for the purposes of according immunity. In this connection it needs also to be recognised that the defence and foreign policies of state are inextricably interlinked in the present day and their line of demarcation could be somewhat tenuous. As Prof. McRae stated during this debate, these developments reflect the reality of how international relations are conducted in the modern world and should be taken cognizance of.
However, having said this, the clear necessity to strike a correct and delicate balance between the need to expand albeit cautiously, categories of officials to be accorded jurisdictional immunities ratione personae taking into account the realities of the modern world on the one hand and the need to avoid a liberal expansion of such categories on the other, has to be underscored. Hence the need for the careful identification and definition of applicable criteria.
Dr. Rohan Perera P.C , Member International law Commission, (ILC) and
Former Legal Advisor of Ministry of Foreign Affairs - Sri Lanka
In this connection, the question posed by the Special Rapporteur in paragraph 121 of the Report whether the importance of the functions performed by high-ranking officials for ensuring the state’s sovereignty is an additional criterion – in addition to ensuring the state’s participation in international relations, for including the concerned official among those enjoying immunity ratione personae becomes extremely relevant.
The effective conduct of a state’s foreign relations is inherent in the preserving of its sovereignty. They constitute an integral whole in providing the rationale for the according of jurisdictional immunities to state officials. Therefore in the elaboration and defining of criteria this integral element needs to be emphasised rather than their treatment as distinct criteria.
I now wish to turn briefly to the question of possible exceptions to jurisdictional immunity on the basis of international crimes, a difficult and complex issue on which legal literature appears to be sharply divided. Although the issue is not dealt with in the present report and the Special Rapporteur has stated that it would be dealt with in his second report, it nevertheless had an unseen presence and hovered over our debate more like “banquo’s ghost” rather than the Prince of Denmark. The views expressed during the debate have brought to surface some of the difficult issues that the Commission would be confronted with in our future consideration of this topic.
Mr. Ian Brownlie’s statement last week raised extremely pertinent issues as to the scope and extent of such an exception and cautioned that an extremely liberal approach in extending the boundaries of such an exception, could lead to the total disappearance of the whole notion of jurisdictional immunities. We need to give very close attention to this aspect.
A range of complex issues would arise in considering an international crimes exception which would require our very careful consideration, for instance;
- What is the precise scope of crimes which would constitute such an exception ?
- Should they consist only of what have come to be generally regarded as “core crimes “ under international law, viz, genocide, crimes against humanity and war crimes, or should also cover what are referred to as “other crimes of international concern”, the precise parameters of which are unclear.
- The problems of identification of possible jus cogens norms establishing such crimes
- Would the exception also apply to current holders of office or only upon termination of office
- The question of impact of current developments in the field of international jurisdiction although forming a distinct category separate from the scope of the current topic
The secretariat memorandum particularly paragraph 193 to 212 provides extremely useful material for our future consideration of these issues.
While there certainly is a tension between contending principles in dealing with an international crimes exception to immunity from criminal jurisdiction, I would hesitate to approach the matter from the somewhat restrictive prism of for or against immunity or for or against impunity. However difficult the task may be, the approach of the Commission must be towards striking a delicate balance between the possible recognition of carefully defined exceptions on the one hand and preserving the essence of jurisdictional immunities essential for the conduct of international relations on the other.
We will await with interest the Special Rapporteur’s treatment of this aspect in his second report. I might also add that for my part, I would not mind if the “Prince of Denmark” were to appear in the second act if that were to enhance the dramatic content and the sense of anticipation.
Lastly, on the exclusions from the scope of the topic, I would agree with the doubts cast by the Special Rapporteur and the number of previous speakers on the advisability of including within the framework of this topic the question of recognition and the question of immunity of members of the family of high-ranking officials.
From an international law perspective, the immunity of a state official from criminal jurisdiction is based on the principle of sovereign equality of states. If the “maxim par in parem non habet imperium” connotes one sovereign or his representative entering the territory of another on an implicit understanding that he will not be subject to the jurisdiction of the latter, it could hardly be said to extend to apply in respect of an unrecognised entity.
On the question of family members, I would agree with the view that the basis of the grant of immunity in such cases is essentially international comity rather than international law and in that there is no settled practice in this regard.
For these reasons, I would favour the exclusion of these issues from the scope of the topic.
In conclusion I wish to assure the Special Rapportuer of our continuing constructive contribution as he proceeds with the further development of different aspects and draft articles on this topic and that we look forward to his second report.
Dr. Rohan Perera, P. C. is former Legal Advisor of the Ministry of Foreign Affairs. He joined the Ministry as an Assistant Legal Advisor in 1976. He is presently a member of the United Nations International Law Commission and is also the Chairman of the United Nations Ad-hoc Committee on the Elimination of International Terrorism, since 2000.
He is a Visiting Lecturer in law at the Faculty of law at the University of Colombo, Bandaranaike International Diplomatic Training Institute and the Kotelawala Defence University. He has several publications which include International Terorism (Vikas, New Delhi) and Changing Frontiers of International Law (Sarvodaya Publications, Colombo) and has contributed number of articles on current international legal topics to several national and foreign law journals.