Statement by Counsellor Huth on "Immunity of State Officials from Foreign Criminal Jurisdiction" and "Treaties over Time" in the Sixth Committee (International Law Committee)
This year the ILC discussed the second and third reports by the Special Rapporteur on “Immunity of State officials from foreign criminal jurisdiction”. We would like to congratulate the Special Rapporteur for two very extensive and well-structured reports, which provide valuable guidance for the further discussion of the subject. In particular, we are impressed by the comprehensive compilation of relevant state practice which makes the reports an essential source of reference.
Germany has followed with great interest the debate within the ILC following the presentation of the two reports. In view of the many contested issues which came up in the ILC discussion and the various questions addressed to States, I would like to concentrate my statement on some aspects which seem to be of particular importance.
First, the debate within the ILC has turned around the question as to whether the ILC should confine itself to the lex lata or attempt to draft provisions de lege ferrenda. We appreciate the careful and well-balanced approach of the Special Rapporteur, who focused on lex lata and placed the main emphasis on the relevant practices of states, international organizations and international courts. We fully agree with this approach. Looking at the ILC’s mandate, this topic is clearly an item for “codification” and not for “progressive development”.
There are several good reasons for that. One of them is that the special sensitivity of the subject prohibits laying down rules which could be in contradiction to what States consider to be necessary for the conduct of international relations.
Another reason is the fact that state practice in this area is often formulated by decisions by courts and not by governments. Typically, courts are independent and have the responsibility to apply the law – including international law – as it stands.
In the German domestic legal system, for instance, the question of immunity of foreign state officials is addressed by section 20 of the Courts Constitution Act (Gerichtsverfassungsgesetz). This provision explicitly refers to general rules of international law, i.e. customary law and requires the German courts to determine whether immunity exists in a given case or not. As they focus on lex lata when applying international law , courts need a predictable and undisputed framework of rules.
Secondly: In his second report the Special Rapporteur analyses in depth the question of whether there are exceptions to the principle of immunity. We fully share the Special Rapporteur’s general assumption that such exceptions must be clearly founded in customary international law. An extensive analysis of relevant state practice seems to be essential when discussing possible exceptions to the principle of immunity. Going into more detail as regards the question of exceptions, we agree with the observation of the Special Rapporteur that a violation of a jus cogens norm does not necessarily remove immunity. We share the view expressed in the discussion within the ILC“ that to conclude that jus cogens norms were superior to rules governing immunity would be to confuse substance with rules of procedure”.
We do not support the view that immunity inevitably leads to impunity. Indeed, we reject such a view. For Germany there is no doubt that the fight against impunity is of paramount importance. First of all, however, it has to be stressed that criminal acts by foreign state officials are not covered by immunity per se. State officials who have committed unlawful acts are fully responsible, also under criminal law, according to the laws of their own states. And the latter are responsible for exercising their jurisdiction. It is worth recalling this traditional and undisputed rule in this context. Furthermore, there is always the possibility of a waiver. These two instruments, exercise of jurisdiction by the official’s State or waiver of immunity, are important tools in our common fight against impunity. They should not be dismissed in our debate. On the contrary, States should be encouraged to make use of them.
As regards those – rather extreme - cases concerning grave crimes under international law and where – for whatever reason - the traditional mechanisms mentioned above do not function, we need a particularly careful approach. We share those views expressed in the discussion within the ILC that rightly underline the delicate balance which has to be found between the need to ensure stability in international relations, on the one hand, and the need to avoid impunity for grave crimes under international law on the other. The best way to deal with this seems to be through international jurisdictions, for example through the International Criminal Court.
Third: The question of immunity ratione personae of holders of high state office, i. e. who can invoke immunity? is of central importance. Therefore, we support the ILC’s approach of collecting relevant state practices in that regard. We very much hope that this collection can elucidate this difficult, yet essential question.
I would like to stress that we should avoid framing the current debate on immunity of state officials as a debate between future and modern-orientated positions, on the one hand, and traditional or backward-minded positions, on the other hand. We look forward to the further discussion and work of the ILC regarding this important but highly sensitive subject. We are ready any time to provide further information in writing to the ILC on relevant German State practice.
Regarding “Treaties over time”, Germany is convinced that this topic will become one of the most important subjects for the future work of the ILC. Elucidating the role of subsequent agreement and subsequent practice as a means of interpretation is of particular importance as major treaties age and their context changes. Many international treaties, both bilateral and multilateral, cannot be amended easily, yet they must fulfil their purpose. Subsequent agreements and subsequent practice are means of interpretation that are particularly characteristic of international law. Although their importance for the application of international law cannot be denied, the way in which they are used has not been sufficiently explored so far. In particular,an exhaustive analysis of state practice and practice of international organizations has not yet been carried out.
Germany reiterates its position that it regards the work done by the ILC in this regard as a fundamental step towards establishing manageable and predictable criteria for these means of interpretation.
At this year’s session, the ILC further advanced its work on this subject. We consider the nine preliminary conclusions presented by the Chairman of the Study Group as a valuable basis for further elaboration of this topic. They are worded in an open and flexible manner, thus leaving enough room to integrate further reports and results of state practice as well as that of international organizations in the future. They are well-balanced as they show the importance of subsequent agreement and subsequent practice without ignoring their relation to other means of interpretation. The extensive analysis of approaches to interpretation by different international adjudicatory bodies is helpful for structuring future analysis of the subject.
Considering the importance of this issue, Germany suggests that a Special Rapporteur be appointed. Besides, Germany would like to encourage States and international organizations to provide to the Commission relevant state practice as it regards this particular analysis of practice as crucial for better understanding the subject.