Immunity as a Circumstance Excluding the Operation of the Obligation to Extradite or Prosecute – Part II: Immunities and the Existence of a Conflict of Norms

Filip Andrei LARIU*

University of Bucharest

Abstract: This article is the second in a trilogy[1] that examines the interaction between the immunities of state officials and the obligation to extradite or prosecute. It focuses on personal and functional immunities, summarily comparing them and then analysing the instance where their observance would come into conflict with the obligation to extradite or prosecute. The doctrinal and comparative legal research employed highlights the contents of each obligation, emphasising the manner in which the conflict of norms occurs. Finally, it concludes that there really is a conflict between the two international obligations, and that in the absence of a hierarchical difference between the two, other rules for solving the conflict are required.

Key-words: Obligation to extradite or prosecute; Personal Immunity, Functional Immunity; International Crimes

1.      Introduction

Immunities have been defined as the ‘doctrines developed in domestic courts over time to avoid infringements on sovereignty’.[2] They essentially seek to protect the State and the agents who execute acts on its behalf from the jurisdiction of other States. It is thus the State who is the primary beneficiary of immunities, by virtue of the principle of sovereign equality. Yet, because the State is an abstract entity that requires physical persons to act on its behalf, the immunities must also be extended to such persons. These individuals may be officials or diplomatic representatives, but the legal regime of the different types of applicable immunities may vary, depending on several factors.

It is generally accepted that there are two types of immunities for officials: immunities ratione personae, also called personal immunities, and immunities ratione materiae, or functional immunities.[3] Although their origin, i.e. the immunity of the State itself, is the same for both of them, their raison d’être, effects, and circumstances when they may be invoked, can differ. The difference in their effects is particularly relevant to observe, so that one can understand the various manners in which the two types of immunities interact with the elements and components of the obligation to extradite or prosecute.[4]

We will first address the personal immunity, identifying the main characteristics through the lenses of relevant domestic and international case‑law. We will then move on to the functional immunity, drawing a comparison between the two. Finally, we will turn to an analysis on whether there really exists a conflict of norms between the obligation to extradite or prosecute (‘OEP’) and the obligation to observe immunities. It is important to note that the present article does not wish to be an in-depth study of immunities. Rather, it only summarily addresses them with the purpose of familiarising the reader with the elements that play a role in the interaction with the OEP.

2.      Personal Immunity

Immunity ratione personae is a procedural bar that precludes the exercise of one State’s jurisdiction over certain high-ranking officials of another State. It protects such officials from criminal prosecution for acts performed either in an official or private capacity. Furthermore, the moments when such acts were committed is irrelevant, since the immunity extends to acts performed before and after the individual has begun the term in office.[5] A similar form of immunity exists in international customary law for diplomats and members of special missions.[6] In this case, however, their immunity is limited to criminal proceedings in the States where they are accredited or on mission.[7] Diplomats enjoy immunity from criminal, and with some exceptions, civil and administrative jurisdiction. Furthermore, they are not obliged to give evidence as witnesses and, in respect of criminal jurisdiction, no measures of execution may be taken against them.

Regarding the end of immunity ratione personae, there are two instances when such immunity ceases to exist. First, it may occur when the individual protected by it, no longer holds the office associated with personal immunity. In such a case, the individual continues to enjoy functional immunity regarding the acts performed in an official capacity during their term. The second instance when immunity ceases to exist occurs when a state waives the immunity of its official. This latter situation will be discussed in the third article of the trilogy.

There is a consensus that personal immunity extends beyond criminal jurisdiction, to encompass also civil proceedings,[8] with some possible limitations.[9] However, because the obligation to extradite or prosecute concerns criminal matters, we will not further discuss the extent of immunities for civil proceedings, since it is not directly relevant for the object of this study.[10]

Officials protected by personal immunities

Immunity ratione personae is reserved for ‘holders of high-ranking office’[11] because by virtue of their office they embody the State.[12] Immunities ‘are not granted for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective States.’[13] In Arrest Warrant, the ICJ identified three persons who would benefit from such immunities: heads of State, heads of government, and ministers of foreign affairs.[14] However, going from the wording of the paragraph, some authors argued that the list is not exhaustive,[15] and that personal immunities might be extended to other high‑ranking officials. For example, domestic courts have ruled that defence and commerce ministers also fall into this category.[16] On the other hand, officials such as the education minister and the general prosecutor do not enjoy immunities ratione personae.[17] Similarly, the UK High Court rejected the proposition that the Mongolian Head of the Office of National Security benefits from personal immunity.[18] It can therefore be concluded that this category of immunities is granted to a very restricted number of people, and general consensus on who may benefit from them exists so far only in regard to the troika of heads of State, heads of government and ministers of foreign affairs.

3.      Functional Immunity

Functional immunity, or immunity ratione materiae, protects official acts that are carried out by individuals on behalf of a State and are thus ‘cloaked by sovereign authority’.[19] Its primary purpose is to ensure the respect for the principle of the international equality of States.[20] Unlike personal immunity, the aim for which it has been created was not to benefit the official, but to ‘shield an official act that is attributable to the State from foreign scrutiny’.[21] Therefore, the status of the person performing the act is not particularly relevant, since it includes all individuals acting as State organs within the meaning of Article 4 of the ILC Articles on State Responsibility.[22] The ILC further defined the beneficiaries as ‘all the natural persons who are authorised to represent the State in all its manifestation’.[23] Hence, the category of individuals that may benefit from functional immunity is very wide. As such, the decisive element that determines the operation of immunity ratione materiae is the nature of the performed act. For it to be an official act, it must first be ‘exercised in pursuance of a certain state policy, in contrast to acts performed purely of the individual’s benefit’.[24] Secondly, the act must be carried out ‘using the apparatus of the State’.[25]

Because functional immunity concerns the act itself, and not the status of the person performing it, its effect lingers even after the person no longer holds an office. Likewise, high-ranking officials or diplomats who enjoyed personal immunity continue to benefit from functional immunity in respect to the official acts performed while in office.[26] The reason for this particularity is that the official act is not attributable to the person, but rather to the State on whose behalf the person acted, as expressed by the ICTY in the Prosecutor v. Blaškic case:

Such officials are mere instruments of a State and their official action can only be attributed to the State. They cannot be the subject of sanctions or penalties for conduct that is not private but undertaken on behalf of a State. In other words, State officials cannot suffer the consequences of wrongful acts which are not attributable to them personally but to the State on whose behalf they act: they enjoy so-called “functional immunity”.[27]

Nevertheless, immunity ratione materiae does not perfectly overlap with State immunity. The latter is limited to acta iure imperii, or acts performed exclusively in the exercise of sovereign powers,[28] while the former also extends to acta iure gestionis, or acts that theoretically could also be executed by a private person, but are nevertheless performed in an official capacity.

4.      Conflict between Immunities and the OEP

The concept of ‘conflict of norms’ has been defined as the situation which arises when a State cannot simultaneously comply with two different obligations.[29] Another more comprehensive definition contends that ‘there is a conflict between norms, one of which may be permissive, if in obeying or applying one norm, the other norm is necessarily or potentially violated’.[30] This article will thus analyse to what extent the observance of immunities entails the automatic breach of the OEP and vice-versa, while also discussing theories and principles that could solve such a conflict.

This discussion is particularly relevant in the field of State responsibility, especially when considering the nature of the two obligations. While the duty to extradite or prosecute is erga omnes partes,[31] the obligation to observe immunities is bilateral. This means that responsibility for a breach of the OEP can be invoked by any State party to the treaty that contains it.[32] On the contrary, when it comes to immunities, only the State that has been injured, i.e. the State from whose sovereignty the individual’s immunity was derived, can invoke the responsibility of the state committing the alleged breach.[33] The outcome of this discrepancy is that a situation may occur where the responsibility of State A is being invoked by State B for not prosecuting an official (benefitting from immunity) of State C. In this intricate triangle, State A needs to justify its position and solve the legal issue by employing one of the theories discussed below.

The first matter that needs to be clarified is whether there really is a conflict between the object of the OEP and that of immunities. If there is no such conflict, that means a State would be able to observe both obligations simultaneously without being in breach of either one.

The content of the obligation to observe immunities entails a duty on the State not to commit any ‘act of authority […] which would hinder [the person benefitting from immunity] in the performance of his or her duties’.[34] In other words, States have an international obligation not to exercise their jurisdiction over persons benefitting from immunity.[35] On the other hand, it is generally accepted that the OEP entails quite the opposite: an obligation on the State not only to extend, but also to exercise its jurisdiction for the purpose of prosecuting or extraditing the person targeted by the OEP.[36] Consequently, the conflict between the content of the two norms is quite evident, and the observance of one obligation would seem to entail the automatic breach of the other.

Nevertheless, some authors have tried to mend this apparent conflict by applying a restrictive interpretation of the obligation to extradite or prosecute.[37] In their view, the OEP is purely procedural and entails only the duty to refer the situation to the competent authorities for the purpose of prosecution or extradition. It is at the moment when such a referral is performed that the OEP is to be considered fulfilled. What happens afterwards does not influence in any way the execution of the obligation aut dedere aut judicare. The competent authorities that have been seized with the matter are free to simply dismiss the case invoking the immunities that the targeted person benefits from. If they do so, the obligation to observe immunities would also be fulfilled. In short, it would seem that reducing the OEP to a purely procedural obligation of referring the situation to the competent authorities has the effect of avoiding a conflict of norms.

However, this approach is problematic in several ways. First, it focuses exclusively on the wording used in only some of the conventions that contain the OEP. The formula ‘to submit to the competent authorities’, although preferred,[38] is not used in relation to all crimes. The Genocide Convention, for example, includes a substantive obligation, requiring States to ‘punish’ the perpetrators of genocide.[39] Moreover, the general consensus is that even the new formula entails the substantive obligation on states to actually prosecute or extradite the perpetrators.[40] The reason why the new clause uses the language that it does, is in order to comply with international human rights standards such as the presumption of innocence. In the words of Scharf, ‘to be consistent with these rights, the Torture Convention had to be worded in such a way as to avoid the suggestion of a predetermined outcome of the judicial proceedings, and to recognize that there are legitimate reasons for the termination of an investigation or the dismissal of a case prior to trial’. Beyond that, the content of the obligation aut dedere aut judicare remains unchanged regardless of the wording that is being used.

Moreover, to further prove the inadequacy of the proposed interpretation, one could turn to the Vienna Convention on the Law of Treaties, which requires the interpretation of the treaty to be ‘in light of its object and purpose’. A restrictive and formalistic interpretation achieves quite the opposite, since it erodes the institution of the OEP. It reduces it to an irrelevant procedural step that States can use to argue that they have fulfilled their international obligation, without actually contributing at all to the fight against impunity. The example is further aggravated when considering that the ‘competent authorities’ are not required to be independent or impartial. A government could simply submit the case to some organ it controls which in turn dismisses the case. The OEP would become an obligation devoid of any relevant content.

It would therefore appear that the OEP is not just a procedural obligation, entailing, apart from a simple referral to the competent authorities, the actual exercise of jurisdiction. Consequently, there seems to be indeed a conflict between the content of the OEP and that of the obligation to observe immunities.

In municipal law, the first way to solve a conflict between different norms is to consider their place in the hierarchy of norms. A constitutional provision would prevail over a governmental decree, and so on. In international law, there is no hierarchical difference between customary and treaty rules.[41] Regardless of their source, the obligations have the same value.An exception from this rule are the jus cogens norms, which would render void any conflicting provision.[42] However, when it comes to immunities and the OEP, neither have achieved the status of peremptory norms. Immunities, while undoubtedly part of customary law, allow for derogations and exceptions, a feature incompatible with jus cogens.[43] As regards the OEP, there is not even a general consensus on its customary status,[44] not to mention jus cogens. Although the prohibition of certain international crimes is well settled in customary law, or has even achieved jus cogens status,[45] it should be distinguished from the OEP itself.

5.      Conclusions

The types of immunities benefitting individuals are either personal or functional. The former benefits high-ranking officials and extends over both official and private acts, while the latter is limited to official acts performed while in office. The international obligation to observe immunities appears to come into conflict with the OEP. However, in trying to solve this conflict, one cannot appeal to the hierarchy of norms because neither the OEP nor immunities are jus cogens norms. There are, nevertheless, other principles, such as lex specialis, that could be used, which will be discussed in the next article of the trilogy.

* Ph.D. candidate and Teaching Assistant at the University of Bucharest, Romania. Filip is a graduate of Leiden University (LL.M in Public International Law) and of Babeș-Bolyai University (Bachelor of Laws). He is also a Diplomat at the Romanian Ministry of Foreign Affairs. Currently, he is writing his PhD thesis in the field of International Humanitarian Law, analysing the legality of using the effects of climate change as a method of war.  Email address: opinions expressed in this paper are solely the author’s and do not engage the institution he/she belongs to.

[1] We recommend to first read the initial article of the trilogy, where the principle of aut dedere aut judicare (i.e. the obligation to extradite or prosecute is being studied). See Filip Andrei Lariu, “Immunity as a Circumstance Excluding the Operation of the Obligation to Extradite or Prosecute. Part I: The Principle of aut Dedere aut Judicare”, Romanian Journal of International Law, No. 27/2022, p. 39.

[2] Gleider Hernandez, International Law, OUP, Oxford, 2019, p. 217.

[3] Roman Kolodkin, “Preliminary Report on Immunity of State Officials from Foreign Criminal Jurisdiction”, UN Doc. A/CN.4/601 (2008), paras. 78–83.

[4] Discussed in the first article of the trilogy. See Filip Andrei Lariu, “Immunity as a Circumstance Excluding the Operation of the Obligation to Extradite or Prosecute. Part I: The Principle of aut Dedere aut Judicare”, Romanian Journal of International Law, No. 27/2022, p. 39.

[5] Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Merits, Judgment of 14 February 2002, [2002] ICJ Rep. 3, paras. 54-5; Institut de Droit International, “Immunities from Jurisdiction and Execution of Heads of State and of Government in International Law”, Resolution of Vancouver Session (2001) (prepared by J Verhoeven).

[6] Michael Wood, “The Immunity of Official Visitors”, Max Planck Yearbook of United Nations Law, Vol. 16, 2012, pp. 58-72.

[7] 1961 Vienna Convention on Diplomatic Relations, 500 UNTS 95, Art. 31(1); 1969 Convention on Special Missions, 1400 UNTS 231, Art. 31(1).

[8] Case Concerning the Arrest Warrant of 11 April 2000, cit. supra, para. 51.

[9] Hernandez (2019), cit. supra, p. 234.

[10] For a more detailed analysis, see Chimène Keitner, “Immunities of Foreign Officials from Civil Jurisdiction”, in Tom Ruys et al (eds.), The Cambridge Handbook of Immunities and International Law, Cambridge University Press, Cambridge, 2019, p. 525.

[11] Case Concerning the Arrest Warrant of 11 April 2000, cit. supra, para. 51.

[12] Wood (2012), cit. supra, p. 44.

[13] Kriangsak Kittichaisaree, The Obligation to Extradite or Prosecute, OUP, Oxford, 2018, p. 243.

[14] Case Concerning the Arrest Warrant of 11 April 2000, cit. supra, para. 51.

[15] Pierre d’Argent, “Immunity of State Officials and the Obligation to Prosecute”, in Anne Peters et al (eds.), Immunities in the Age of Global Constitutionalism, Brill Nijhoff, Leiden, 2014, p. 246.

[16] Ramona Pedretti, Immunity of Heads of State and State Officials for International Crimes, Brill Nijhoff, Leiden, 2015, p. 43.

[17] Case Concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Merits, Judgment of 4 June 2008, [2008] ICJ Rep. 177, paras. 185–6.

[18] UK High Court, Khurts Bat v. The Investigating Judge of the German Federal Court, Judgment of 29 July 2011, per Lord Justice Moses, para. 61.

[19] Pedretti (2015), cit. supra, p. 14.

[20] Antonio Cassese et al, Cassese’s International Criminal Law, Third edition, OUP, Oxford, 2013, p. 246; Antonio Cassese, International Law, Second edition, OUP, Oxford, 2005, p. 112; Rosanne van Alebeek, The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law, OUP, Oxford,2008, p. 113.

[21] Robert Cryer et al, An Introduction to International Criminal Law and Procedure, Second edition, Cambridge University Press, Cambridge, 2010, p. 534; Dapo Akande, Sangeeta Shah, “Immunities of State Officials, International Crimes, and Foreign Domestic Courts”, EJIL, Vol. 21, 2010, p. 825; Ilias Bantekas, International Criminal Law, Routledge‑Cavendish, New York, 2010, pp. 127–8. See also Institut de Droit International, “Immunity from Jurisdiction of the State and of Persons Who Act on Behalf of the State in Case of International Crimes”, Resolution of Napoli Session (2009) (prepared by Lady Fox), at Art. 2(1): aim of immunity is ‘to respect the sovereign equality of States and to permit the effective performance of the functions of persons who act on behalf of States’.

[22] d’Argent (2014), cit. supra, p. 248; ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, 2001 YILC, Vol. II (Part Two), Art. 4.

[23] ILC Report on the work on its forty-third session, 1991 YILC, Vol. II (Part Two), at 18, para. 17.

[24] Pedretti (2015), cit. supra, p. 14.

[25] Ibid.; see also Roman Kolodkin, “Second report on immunity of State officials from foreign criminal jurisdiction”, UN Doc. A/CN.4/631 (2010), pp. 23, 27: “in order for the acts of an official to be deemed to have been performed in this capacity, i.e. official acts, they must clearly have been performed in this capacity or “under the colour of authority”.

[26] Vienna Convention on Diplomatic Relations, cit. supra, Art. 39(2).

[27] Prosecutor v. Blaskic, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Case No. IT-95-14-AR 108 bis, Ap. Ch, 29 October 1997, Para. 38.

[28] Malcolm Shaw, International Law, Eighth Edition, Cambridge University Press, Cambridge, 2017, p. 532.

[29] Wilfred Jenks, “The Conflict of Law-Making Treaties”, BYIL, Vol. 30, 1953, p. 426.

[30] Erich Vranes, “The Definition of ‘Norm Conflict’ in International Law and Legal Theory”, EJIL, Vol. 17, 2006, p. 418.

[31] Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Merits, Judgment of 20 July 2012, [2012] ICJ Rep. 422, p. 450, para. 69.

[32] Ibid., p. 449, para. 68; ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, cit. supra, Art. 48.

[33] ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, cit. supra, Art. 42.

[34] Case Concerning the Arrest Warrant of 11 April 2000, cit. supra, p. 25, para 58.

[35] A full analysis on how exactly the components of the OEP, including the duty to exercise jurisdiction, interact with immunities, will appear in the third article of the trilogy.

[36] See Lariu (2022), cit, supra.

[37] Pedretti (2015), cit. supra, p. 359.

[38] See Lariu (2022), cit supra.

[39] 1948 Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277, Art. 4.

[40] Michael Scharf, “The Letter of the Law: The Scope of the International Legal Obligation to Prosecute Human Rights Crimes”, Law and Contemporary Problems, Vol. 59, No. 4/1996, p. 46.

[41] Article 38 of the Statute of the International Court of Justice does not establish any hierarchy between the three primary sources of international law; see also Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, [1986] ICJ Rep. 14, at 94, Para. 175.

[42] 1969 Vienna Convention on the Law of Treaties, cit. supra, Art. 53.

[43] Ibid.

[44] See Lariu (2022), cit. supra.

[45] See e.g., Questions relating to the Obligation to Prosecute or Extradite, cit. supra, p. 449, para. 99.

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