Introduction
In 2014, the International Law Commission (ILC) began drafting articles for a Convention on the Prevention and Punishment of Crimes Against Humanity, alluding to “a global convention on crimes against humanity”. While the consideration for this is well-founded, one is compelled to consider the already existing international law on crimes against humanity as formulated under the Rome Statute (Article 7). One goal of the ILC in its crimes against humanity convention was to produce a balanced text that would inspire States to establish improved national laws and national jurisdiction regarding crimes against humanity (and develop inter-State collaboration on the subject), while respecting certain boundaries on what States would likely accept in a new convention. From one perspective, the ILC could have adopted a far-reaching treaty language crammed with “wish list” items to describe highly progressive legal policy, but States likely wouldn’t adopt such an instrument.
It is general consensus that crimes against humanity have attracted sufficient adherence to by States (opinio juris and State Practice) such that they have crystalised as customary international law as well as being contained in the Rome Statute. However, Sean Murphy highlights many States that will not prosecute or extradite alleged perpetrators solely based on customary international law. Rather, they will insist upon having a national statute to prosecute. To bridge this lacuna of international and national law, a crimes against humanity convention will oblige States to codify the crime within their national law, thus enabling themselves to prosecute criminals. In creating its draft articles on the convention on crimes against humanity, the ILC may have merely adopted “guidelines,” “principles,” or “conclusions” that would not bind States to legal restrictions. Instead of a legally binding treaty, the ILC aimed for practical, achievable, and valuable suggested articles.
According to Murphy, unless and until a convention on crimes against humanity is created, States will not take cognisance of their actions. Murphy argues that States must create a treaty and not just a “draft” like the Draft Articles on Responsibility of States for Internationally Wrongful Acts of 2001. This would be more conducive for States to adopt domestic legislation based on an international convention on crimes against humanity.
Immunity from Jurisdiction
As Justice Goldstone has written, in order to avoid possible conflict between the draft convention and the Rome Statute, the former adopts the definition of crimes against humanity that appears in the Rome Statute. There are no changes save in respect of modifications of language specific to the International Criminal Court. At the core of the proposed convention is prevention, punishment, and effective capacity building to facilitate such prevention and punishment. All three of those goals are consistent with the Rome Statute and the system it establishes.
The provisions of the proposed treaty would support the prosecutor’s office at the International Criminal Court in adopting a complementary approach. Whether or not they had accepted the Rome Statute, parties to the draft convention would be required by international law to include crimes against humanity in their domestic legal framework. Investigation and prosecution of those offences would be permitted by their courts and prosecuting agencies. The ICC’s doctrine of complementarity would prevent it from using its jurisdiction over those investigations and prosecutions even if they act in good faith.
International relations catapulted by globalisation has created an increasingly interconnected ‘global village’. Irrespective of the populist backlash on globalisation, the importance of international relations has not vitiated; it has only become even more relevant. However, one must note the critical nuances of the international legal regime and especially the law which governs the actors and their agents. State interaction is a double-edged sword. They seek the promotion of exports and also public relations while contemplating ways to best serve their interests and increase their power. Diplomats and other envoys have always needed privileges and immunities for the effective performance of their functions in the receiving state. The preamble to the Vienna Convention recites that ‘the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing states’.
Centralisation and De-Centralisation of International Law
Law on state immunity highlights the legal rules and principles determining the conditions under which a foreign State may claim freedom from the jurisdiction (the legislative, judicial, and administrative powers) of another State. Domestic legislation on State immunity form a part of customary international law and are incorporated in international treaties like the 1972 European Convention on State Immunity – an homage to the “centralisation of international law”. The idea of decentralisation in international law has been put forth: it can function effectively without a centralised authority. This also implies that it is largely a voluntary practise. This brings us to a crucial conclusion: National governments do not required to be involved in the creation of interntaional law. A law or practise that is adopted and acknowledged eventually enters into international law. An example of domestic legislators turning thier mind to State immunity is the British Parliament passing the State Immunity Act. Section 3 of this Act provides that foreign States do not enjoy immunity in respect of their commercial transactions.
International instruments such as the European Convention on State Immunity 1972, which states have been reluctant to ratify, or the Montreal Draft Convention on State Immunity, equally start from the principle of qualified immunity. Qualified immunity is a legal principle that protects government employees from civil lawsuits unless the plaintiff demonstrates that the official violated clearly established statutory or constitutional rights that a reasonable person would have known about. It is a form of sovereign immunity that is less stringent than absolute immunity and is designed to protect officials who make reasonable but erroneous judgments regarding unresolved legal questions. It extends to all officials except those who are manifestly incompetent or willfully violate the law. Qualified immunity only applies to government officials in civil litigation; it does not shield the government from lawsuits originating from officials’ actions.
By 1992, the consensus in the International Law Commission of the United Nations on its Draft Articles on the Jurisdictional Immunities of States and Their Property was also developing in favor of the restrictive theory of immunity. The prevailing trend nowadays, at least in the practice of many States, is to adopt a doctrine of qualified immunity—that is, they grant immunity to foreign states only in respect of their governmental acts (Acta iure imperii), not in respect of their commercial acts (acta iure gestionis). However, a universally accepted classification test to determine the distinction between governmental and commercial acts is not always precise. This, in turn, has made the law on state immunity complicated. If the area in question concerns the exercise of ‘classical’ state functions such as the use of the army in an armed conflict, the matter is clear.
In 1989, in the Argentine Republic v. Amerada Hess Shipping Corp case, the US Supreme Court found no difficulty in granting immunity to Argentina against a claim filed by the owner of a tanker that had been attacked and damaged on the high seas by the Argentinian air force in the Falklands war. The Court also rejected the contention raised by the claimant against sovereign immunity and that the Argentinian act had been a violation of international law.
Where no universally accepted classification test to determine the distinction between governmental and commercial acts remains, some States base the distinction between acts de jure imperii and acta de jure gestionis, on the ‘nature’ of the act (objective test). Others base it on the purpose of the act (subjective test); for instance, the purchase of military equipment for the army would be regarded as a commercial activity under the first test and as a governmental act under the second test. It may seem that such borderline cases are exceptional and that they are easier to settle under the current trend of looking at the ‘nature’ of the activity (objective test).
However, there are various exceptions to the immunity conferred by the act of state doctrine; for instance, it cannot be pleaded as a defense to charges of war crimes, crimes against peace, or crimes against humanity. In the Rainbow Warrior case, for example, there was no commission of crimes of this nature by the two French agents. The incident falls within the category of cases in which immunity from local jurisdiction (in this case that of New Zealand) over official agents entering another country illegally with the official purpose of committing unlawful acts cannot be established. Thus, the French government made no formal immunity claim for the two French agents in the New Zealand proceedings even after the French state responsibility for the attack was admitted.
Diplomatic Immunity
The rules of diplomatic immunity are ‘essential for the maintenance of relations between states and are accepted throughout the world by nations of all creeds, cultures and political complexions’. Major breaches of these rules such as Iran’s actions towards the United States diplomats who were held as hostages in 1979–81, while extremely rare, receive disproportionate publicity because of that rarity.
Article 29 of the Vienna Convention provides that diplomats shall not be liable to any form of arrest or detention, and that appropriate steps must be taken to protect them from attack. Terrorists often attack diplomats, but receiving states almost always do their best to protect diplomats in such circumstances. The approval is given by Iran to the ‘militants’ who seized United States diplomats in Iran in November 1979 were rightly described by the International Court of Justice as ‘unique‘ and was condemned unanimously by the Court and the Security Council. Iran attempted to excuse its actions claiming that the United States and its diplomats had acted unlawfully towards Iran (for example, by intervening in Iran’s internal affairs, starting from the CIA-supported overthrow of the government of Mossadegh in 1951 to protect American and British oil interests), but the Court held that these charges, even if they had been proved, would not have justified Iran’s violation of diplomatic immunity; the obligation to respect the rules of diplomatic immunity is an absolute obligation which must be obeyed in all circumstances.
Conclusion
The question of immunity leaves a gaping hole in the practice of international relations and allows circumvention from jurisdiction. Immunity is used as a veil or a shield to hide perpetrators and criminals from state jurisdiction. However, Courts and Tribunals have established crafty mechanisms to penalize and establish a system of accountability. International conventions and treaties have tried to establish a regime of international law and practice. However, the requirement of immunity must not be undermined as it allows diplomats and heads of missions to function autonomously.
Murphy emphasised the need to allow the continued evolution of what constitutes a “crime against humanity”, which would be done by including a Martens Clause in the preamble. The Martens clause, as set out in 1977 Additional Protocol II to the Geneva Conventions, provides that “in cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates of the public conscience”. Although the preamble to the Draft Articles on Prevention and Punishment of Crimes Against Humanity already notes that the prohibition against crimes against humanity currently exists in customary international law and is a rule of jus cogens (a fundamental principle of international law that is accepted by the international community of states as a norm from which no derogation is permitted), the inclusion of a Martens clause would make it more clear.
Other areas for consideration for the Convention on Crimes against Humanity are more structural, such as whether the Convention should establish a treaty monitoring mechanism, if it should include a no reservations clause, and whether there should be an ‘opt-out’ clause to accompany a ‘compromissory clause’, referring disputes under the Convention to the International Court of Justice. To this, one should observe the achievement of the United Nations Convention on the Law of the Sea which was successful in its pronouncement as a ‘package deal’. This means, according to Judge Treves, voting for the Convention’s creation sould be admitted only if all efforts at consensus were recognised as being exhausted. Concerning the Convention on Crimes Against Humanity, States will need to address these important questions.
It remains to be seen if the ILC struck the proper balance. The first step is for States to determine whether to initiate a negotiation process to change the draft articles as needed and transform them into a convention; the fact that the ILC has developed draft articles that are broadly acceptable to States is helpful in this regard. Even if this step is done and a convention is approved, the question of whether the proper balance was struck will still be examined. The ultimate objective is not merely to have a convention, nor even to have popular adherence to it, but to have a convention that increases the prevention and punishment of atrocities in a meaningful and effective manner.
Ankit Malhotra is reading his Masters of Laws at SOAS University of London as the Felix Scholar.