Immunity of State Officials From Foreign Criminal Jurisdiction

International Law Commission's Work on Subsequent Agreements and Subsequent Practice in Treaty Interpretation and Immunity of State Officials From Foreign Criminal Jurisdiction in 2013

United States views on international law [1] in relation to ILC's Work on Subsequent Agreements and Subsequent Practice in Treaty Interpretation and Immunity of State Officials From Foreign Criminal Jurisdiction: On October 28, 2013, U.S. Department of State Acting Legal Adviser Mary McLeod delivered a statement at a UN General Assembly Sixth Committee session on the report of the International Law Commission (“ILC”) on the work of its 63rd and 65th sessions. Ms. McLeod's remarks, excerpted below (with footnotes omitted) and available in full at (link resource) usun.state.gov/briefing/statements/215964.htm, provide U.S. comments on the topics presented by the International Law Commission's report.

Some Aspects of ILC's Work on Subsequent Agreements and Subsequent Practice in Treaty Interpretation and Immunity of State Officials From Foreign Criminal Jurisdiction

Mr. Chairman, I appreciate the opportunity to comment on the topics that are currently before the committee and will in these remarks address the issues of “Subsequent agreements and subsequent practice in relation to the interpretation of treaties” and “immunity of state officials from foreign criminal jurisdiction,” as well as provide a few comments on chapter 12 of the Commission's report regarding other decisions and conclusions.

Developments

On the subject of “Subsequent agreements and subsequent practice in relation to the interpretation of treaties,” we would like to thank the Special Rapporteur, Professor Georg Nolte, for his extensive and valuable work in producing his first report as Special Rapporteur for this topic, and to commend the Commission for its rapid consideration of draft conclusions in the drafting committee during its session earlier this year. The United States continues to believe that there is a great deal of useful work to be done on this subject, and thus welcomes the more specific focus that this topic has taken on.

Details

In reviewing the Special Rapporteur's report and the draft conclusions adopted by the Commission, the United States welcomes in particular the emphasis on preserving and highlighting established methods of treaty interpretation under Article 31 of the Vienna Convention, and situating subsequent agreements and subsequent practice in that framework.

We also welcome the increasing acknowledgment in the draft conclusions and commentary of the limits of subsequent agreement and subsequent practice as interpretive tools vis-à-vis the reasonable scope of the treaty terms being interpreted. For example, subsequent agreements and subsequent practice should not substitute for amending an agreement when appropriate.

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In draft conclusion number 3, we note some concern at the term “presumed intent.” While discerning the intent of the parties is the broad purpose in treaty interpretation, that purpose is served through the specific means of treaty interpretation set forth in Articles 31-32. In other words, intent is discerned by applying the approach set out in Articles 31-32, not through an independent inquiry into intent and certainly not into presumed intent. The text of conclusion 3 does not seem to capture this important distinction.

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Mr. Chairman, turning to the topic of “Immunity of State Officials from Foreign Criminal Jurisdiction,” we commend Concepción Escobar Hernández of Spain, the International Law Commission's Special Rapporteur, for the progress she has made on this important and difficult topic. We appreciate the efforts that Professor Escobar Hernández has made to build on the work that Roman Kolodkin, the former Special Rapporteur, had done, and her foresight in planning out the work that remains to be done. We commend also the thoughtful contributions by the members of the International Law Commission.

International Law Commission's Work on Subsequent Agreements and Subsequent Practice in Treaty Interpretation and Immunity of State Officials From Foreign Criminal Jurisdiction in 2013 (Continuation)

United States views on international law [1] in relation to ILC's Work on Subsequent Agreements and Subsequent Practice in Treaty Interpretation and Immunity of State Officials From Foreign Criminal Jurisdiction: Under the stewardship of Professor Escobar Hernández, the International Law Commission has produced three draft articles addressing the scope of the topic and immunity ratione personae, as well as commentary on those articles. Accordingly, we are pleased that there is now visible progress that has been built on the extensive effort that went into laying a foundation.

More about ILC's Work on Subsequent Agreements and Subsequent Practice in Treaty Interpretation and Immunity of State Officials From Foreign Criminal Jurisdiction

One of the challenges of this topic as it relates to immunity ratione personae has to do with the small number of criminal cases brought against foreign officials, and particularly against heads of State, heads of government, and foreign ministers. The federal government of the United States has never brought a criminal case against a sitting foreign head of state, head of government, or foreign minister. Nor are we aware of a state government within the U.S. having brought such a case.

Development

The bulk of U.S. practice on foreign official immunity centers on civil suits. For our purposes, perhaps the most critical difference between civil and criminal jurisdiction in the United States is that civil suits are generally brought by private parties, without any involvement by the executive branch; criminal cases are always brought by the executive branch. We realize that procedures differ in other countries, including those in which criminal investigations are conducted by members of the judicial branch and/or initiated by private party complaints. Of course, it is the sovereign that is concerned with reciprocity, whereas the private parties who bring civil suits are not. When the issue of immunity does arise in the criminal context, and decisions regarding prosecution are made within the executive branch, the application of immunity or of related policy concerns about bringing a prosecution of a sitting head of state may not be publicly apparent because they are considered and resolved within the executive branch as part of the initial decision whether to proceed. Thus, the deferral of prosecution of sitting heads of state may not be a matter of public record, which may make it more difficult to elicit the governing rules.

Details

The United States believes that scope of the topic and immunity ratione personae were prudent issues with which to begin, and that the draft articles and commentary may help produce momentum to deal with issues of greater controversy such as immunity ratione materiae and exceptions to immunity, as may be appropriate. With respect to scope, because the rules that govern immunity in civil cases differ from those in criminal cases, we suggest that the commentary clarify that the draft articles have no bearing on any immunity that may exist with respect to civil jurisdiction.

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The precise definition of the concept of “exercise of criminal jurisdiction” has been left to further commentary. The existing commentary, to Article 1, paragraph 5, explains that the exercise of criminal jurisdiction should be understood to mean “the set of acts linked to judicial processes whose purpose is to determine the criminal responsibility of an individual, including coercive acts that can be carried out against persons enjoying immunity in this context.” It is unclear why the exercise of criminal jurisdiction should be limited to those that are linked to judicial processes. In the US, there are limited instances in which the executive branch can apply the police powers without the prior involvement of the judicial branch, for example, arrest and limited periods of detention that can be lawfully undertaken by police authorities with respect to crimes committed in their presence or when necessitated by public safety. We view such application of the police powers as constituting the exercise of criminal jurisdiction, and believe that the commentary to Article 1 should make this clear. Any immunity that exists from the exercise of criminal jurisdiction should not depend on the branch of government that applies the coercion, or the stage of the process at which that coercion is applied. As stated by the International Court of Justice in Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), “the determining factor in assessing whether or not there has been an attack on the immunity of the Head of State lies in the subjection of the latter to a constraining act of authority.” It follows that the types of exercise of criminal jurisdiction as to which a head of state, or other member of the troika, may enjoy immunity are those that are coercive, regardless of the branch of government applying the coercion.

Resources

Notes

1. Ilc's Work on Subsequent Agreements and Subsequent Practice in Treaty Interpretation and Immunity of State Officials From Foreign Criminal Jurisdiction in the Digest of United States Practice in International Law

Resources

Notes

1. Ilc's Work on Subsequent Agreements and Subsequent Practice in Treaty Interpretation and Immunity of State Officials From Foreign Criminal Jurisdiction in the Digest of United States Practice in International Law