I have been given the honour to speak on behalf of the five Nordic countries, Denmark, Finland, Iceland, Sweden and Norway, on the issue of immunity of State officials from foreign criminal jurisdiction.
First of all, let me congratulate the International Law Commission on this year’s work and in particular the Special Rapporteur, Mr. Roman Kolodkin, with the comprehensive and thorough preliminary report on this issue, submitted at the ILC’s 60th session. In a remarkable short period of time the Special Rapporteur has produced a paper of excellent analytic quality that gives an important contribution to our understanding of the issues at hand.
We are in full support of the ILC’s decision to include this topic in its work plan with a view to take stock of current practice and, in due course, elaborate draft articles on the subject.
Keeping this aim in mind, we would like to point out two areas where, in our opinion, the future reports would benefit from further examination of important sources of law in order to fully capture the most recent legal development and cover all aspects of the issue. They both have a bearing on the scope of immunity, or more specifically, on who would be covered by immunity and what types of jurisdiction they would enjoy immunity from.
Firstly, when it comes to taking stock of current practice and analysing the prevailing legal situation, the findings of the International Court of Justice in the case “Certain Questions of Mutual Assistance in Criminal Matters – Djibouti vs. France” should be taken into account. The judgment in the case was delivered 4th June 2008, just after the Special Rapporteur had submitted his report. It contains important clarifications regarding immunity of State officials, clarifications that need to be reflected in ILC’s future work on this issue in order to give an accurate picture of the current legal position in this field.
In fact, H.E. Rosalyn Higgins, President of the ICJ anticipated the delivery of this judgement for what it might have to offer on this topic in her address at the sixtieth anniversary of the ILC in May this year. Judge Higgins said on the occasion that “the judgement in the Djibouti vs. France case is being watched for what it might have to say on the topic of ‘immunity of State officials from foreign criminal jurisdiction’ and of ‘Head of State immunity’”. In retrospect we know that the judgement indeed contains important clarifications.
In his discussion on the nature of immunity, the Special Rapporteur seems to take the position that immunity represents a limitation of jurisdiction, which in turn seems to imply that foreign courts are under a duty to observe it ex officio. We are rather of the opinion, that immunity is a limitation of the exercise of jurisdiction.
In an obiter dictum in the case “Certain Questions of Mutual Assistance in Criminal Matters” the ICJ seems to presume that immunity for State officials other than Heads of State or Heads of Government or Ministers of Foreign Affairs has to be claimed actively by the official’s home State, and that the State by doing so assumes responsibility for any international wrongful act committed by one of its officials. This is also an aspect of the decision which seems to justify further study.
Having read the report of the Special Rapporteur carefully, it is our general opinion that it may be casting the net too widely with respect to the number and classes of State officials who can be covered by State immunity and under what conditions immunity can be invoked. We don’t want to get further entangled in details, but limit ourselves to noting that the ICJ’s judgement in the case “Certain Questions of Mutual Assistance in Criminal Matters” needs to be studied carefully as it seems to narrow down the number of persons entitled to immunity compared to the assumptions in the Special Rapporteur’s report. We therefore fully share the view of the Special Rapporteur, as expressed in paragraph 307 of the Commission’s report, on the importance of further consideration of questions pertaining to personal immunity in the light of the said judgement.
Secondly, in the report the Special Rapporteur interprets his mandate so as to exclude immunity from international criminal jurisdiction. This may be a valid point of departure but we think the interface between the different types of criminal jurisdiction is such that we need to also take rules of immunity under international criminal jurisdiction into account in order to get a complete analysis of what is at the core of our task: immunity from foreign national jurisdiction. More specifically, the question may be whether international crimes within the framework of international criminal justice may also have a bearing on the general state of the law of immunities.
Practical situations that may arise require a coherent approach to the immunity issue, for example if a case is referred from an international tribunal, which acts under international criminal jurisdiction, to a national court. Such referral has recently been discussed for example with regard to some of the cases pending before the International Criminal Tribunal for Rwanda. If such a referral is to take place, a consistent and predictable solution must be found to the immunity issue, taking into account the law of immunity in international jurisdiction as well as the relevant law of immunity applicable in the jurisdiction of the forum State.
In this connection we would further like to draw your attention to the Statute of the International Criminal Court article 98, which addresses the relation between the obligation of States parties to the Rome Statue to, on the one hand, co-operate with the court and, on the other, to comply with other obligations under international law, in particular with regard to immunity.
In short, the article states that the Court may not proceed with a request that would require a State to act inconsistently with its other obligations under international law.
Especially between States parties to the Rome Statute this clause, although belonging to the sphere of international criminal law, could be of relevance when determining the limits of immunity per se.
These examples indicate that immunity from national and international criminal jurisdiction are linked, and we call for the next report of the Special Rapporteur to take immunity from international criminal jurisdiction into account to a larger extent. In this regard we are also pleased to note the Special Rapporteur’s intention to consider the issue of international criminal jurisdiction when he takes up the questions of possible exceptions to immunity.
I believe the key to identify consistent rules stemming from these various sources may be to revisit and examine more closely the purpose of immunity. Maintaining and respecting certain immunity norms are essential in order to keep channels of communication open between States and ensure that States are able to perform their functions as such. This suggests that the State and its primary functions should have a central place in the analysis, balanced with, in particular, the need for accountability and the fight against impunity.
In concluding Mr. Chairman, let me express my support for the ILC’s continued work in this field. We look forward to the follow-up on the preliminary report and promise to remain constructively engaged.
I thank you, Mr. Chairman