Introduction
This note discusses the Convention on Crimes Against Humanity and its travaux prepertoires. As a (possible) response to the Convention and its use, this note will highlight the discourse on immunity from jurisdiction. Thus, in other words, this note will attempt to highlight and imagine the practice in international criminal courts using the current status quo and general practice.
Convention on Crimes Against Humanity
Sean Murphy, member of the United Nations International Law Commission (ILC) and Special Rapporteur for Crimes Against Humanity alludes to "a global convention on crimes against humanity”. While the consideration for this is well-founded, one is compelled to consider crimes against humanity as formulated under the Rome Statute (Article 7). Since the definition is enshrined in the Statue and has gathered adherence, it is considered as a part of customary international law. Murphy however highlights many countries 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, states will have to codify the crime within their national law, thus enabling themselves to prosecute criminals. According to Murphy, unless and until the Convention is created, Sates will not take cognizance of the travaux prepertorie. Murphy believes that since the idea is to draft a treaty and not just a draft like the Draft Articles on Responsibility of States for Internationally Wrongful Acts of 2001. Expanding upon this, Murphy offers a flexible room for interpretation for nations to adopt a domestic legislation based on an international convention on crimes against humanity. A significant feature of the Convention will be to understand the text as the “floor” rather than a “ceiling”. In other words, the Convention on Crimes Against Humanity should be understood as a basis of interpretation for domestic courts and not as the gospel truth.
Murphy also indicates that non-parties to the Statues have not raised an objection to the definition. Since they don’t fall within the ambit of a persistent objector, their silence can be understood as agreement, if not blatant disagreement. However, immunity used as a convenient means to extinguish jurisdiction plays a critical role here.
Immunity from Jurisdiction
States, like its citizens and residents do not exist in silos. International relations catapulted by globalization has created an increasingly interconnected ‘global village’. Irrespective of the populist backlash on globalization, 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/ agents of nations. State interaction is a double-edged sword. They seek the promotion of exports and also public relations (less euphemistically known as propaganda) while meandering over what must be done and what cannot be done. Since time immemorial, diplomats and other envoys have 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’.
Centralization and De-Centralization 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 law and are sometimes incorporated in international treaties like the 1972 European Convention on State Immunity- a homage to the centralization of international law. In extension, the centralization of such international law gained traction in 1978The British Parliament passed the State Immunity Act and 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. 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 favour 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.
Determination of Jurisdiction
In 1989, in the Argentine Republic v. Amerada Hess Shipping Corp [i]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 defence to charges of war crimes, crimes against peace, or crimes against humanity. In the Rainbow Warrior case[ii] for example, there was no commission of crimes of this nature by the two French agents. The incident rather 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 behaviour 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 and jurisdiction 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. Leaders of such practice are listed and discussed above. 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.
In addition to the lens of interpreting the Convention, Murphy emphasized the need for the continued evolution of crime could also be recognized by including a Martens clause in the preamble. That is because, the Martens clause was the origin of the crimes against humanity charges at Nuremberg. Although the preamble to the Draft Articles already notes that the prohibition against crimes against humanity currently exists in customary international law and is a rule of jus cogens, the inclusion of a Martens clause would make it more clear. It is worth emphasizing that although many core obligations of States are codified by the Draft Articles, they were not been created by it.
Other areas for consideration 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 strong dispute resolution clause which gives the International Court of Justice the option for review. 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'. Concerning the Convention on Crimes Against Humanity, States will need to address these important questions. In particular, the commentary to the Draft Articles, replete with decisions and comments from treaty bodies, demonstrates the importance of such monitoring mechanisms. Such a body could ultimately decide the success and influence of the crimes against humanity Convention. Likewise, dispute settlement is fundamentally important to the success of a treaty and as such, an "opt-out" clause should be considered only if reservations are otherwise prohibited.
[i] Argentine Republic v. Amerada Hess Shipping Corp. No. 87-1372. [ii] Rainbow Warrior Case ... (New Zealand v. France) ( 1990 ) 82 I.L.R. 500.
Ankit Malhotra is reading Law at Jindal Global University and has a Bachelor of Arts Degree in International Affairs. He is also the President and co-founder of the Jindal Society of International Law.