Table of Content€¦ · standards, to the legality of targeted killings, along with having created the Ad Hoc Committee on International Terrorism in 1972. On a final note – GA6

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LONDON INTERNATIONAL MODEL UNITED NATIONS 2017

Table of Content

The Legal Committee London International Model United Nations 18th Session | 2017

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Table of Contents

Introduction Letters .................................................................................................... 3

Introduction to the Committee ................................................................................... 5

Topic A: The Settlement of International Disputes to which International

Organisations are Party .............................................................................................. 6

Introduction .............................................................................................................. 6

History of the Problem ............................................................................................ 6

Statement of the Problem ........................................................................................ 8

Current Situation ................................................................................................... 12

Bloc positions .......................................................................................................... 14

Questions a Resolution Should Answer ............................................................... 15

Sources .................................................................................................................... 16

Topic B: Immunity of State Officials from Foreign Criminal Jurisdiction ........ 17

Introduction ............................................................................................................ 17

History of the Problem .......................................................................................... 18

Statement of the Problem ...................................................................................... 19

Current Situation ................................................................................................... 20

Bloc positions .......................................................................................................... 22

Questions a Resolution Should Answer ............................................................... 23

Sources .................................................................................................................... 24

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Introduction Letters Dear delegates,

My name is Eugenia Caracciolo Drudis, a 4th Year Politics Philosophy and

Law student at King’s College London, and I will be your Legal Committee

Director this year, alongside my Assistant Directors, Cassy and Sheyla.

Although I can’t wait to see what you all make of this committee, there are a

few things that should be noted first. Being a beginner committee, we

recognise that this will be the first conference for many of you, however, we

believe that only with the best preparation can the best debate take place, and

therefore we expect the same level of preparation as in any other level of

committee. In this study guide you will find all the information necessary to go

out and complete your independent country-research, and we expect you all to

understand the topics on the agenda and your country policies on those topics

before arriving. Due to the nature of Legal, we hope, but under no

circumstances require that delegates will be familiar with international legal

principles and systems governing the international community. Although this

study guide will attempt to give a complete picture for the purposes of

introduction, it is not intended to replace individual research, nor offer an

exhaustive review of the issues. Therefore, we strongly encourage you to look

beyond the Study Guide and become your own experts!

For all pre-conference questions and deadlines, please email:

[email protected]

mailto:[email protected]

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Honorable Delegates of Legal Committee,

My name is Sheyla Rzaeva, I am a Masters student of International Law (LLM) in

University of Southampton, and I am going to be your Assistant Director. Despite the

perceived level of LEGAL committee as the one for the newcomers, its uniqueness is

tremendous. LEGAL committee, or 6th committee of GA and therefore it has usual

for GA Rules of Procedure. The topics that are included into the mandate of LEGAL

committee are the legal questions and controversies that are to be discussed and

assessed by us. The two topics we are going to discuss in this conference are very

contemporary and are of general debate, you are going realize it while doing your

research. For an enjoyable and worth participation in a conference, a delegate is

expected to read a study guide and consider it as a first step in his/her preparation,

and then do a fundamental research on assigned country’s legislation, case law and

general perspective on the subject matter.

We look forward to meet you and observe your high level of professionalism and

dedication!

Dear delegates,

My name is Cassy and I will be your Assistant Director this year. I am currently a

graduate student at the University of Nottingham, pursuing a Master’s in

International Relations.

I started my MUN carreer as a student from John Adams High School, where I

competed at MUN conference held in New York City. Since my freshman year of

college at St. John’s University, I staffed several conferences serving in various

positions. During my upperclassmen years at St. John’s, I worked with the

Foundation for Creative Diplomacy in numerous capacities including MUN Camp

and assisting in the creation of their MUN curricula.

I am honoured to work with my chairing team, the Secretariat and all of you to help

make this exciting conference a reality.

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Introduction to the Committee

The 6th Committee of the United Nations’ General Assembly, otherwise known

as the Legal Committee (or, Legal/GA6 to its friends) is the main organ within

the GA dedicated to the consideration of international legal issues. As legal

issues are something that affect all UN Member States, each State has a

representative in this form. With this in mind, GA6 regularly submits reports to

the GA as sat in plenary session – with all committees present at plenary, the

General Assembly will vote on the resolutions contained in these reports. And

that is how a bill becomes law (or in this case, how a GA6 Draft Resolution

becomes a General Assembly Resolution). Although these resolutions are not

binding in and of themselves, they carry great moral and political weight on

their signatories, and are generally considered to be strongly persuasive

(particularly those with a large quantity of votes in favour).

The mandate of GA6 covers all fields of international law. In previous years,

the committee has discussed everything from the reform of international prison

standards, to the legality of targeted killings, along with having created the Ad

Hoc Committee on International Terrorism in 1972. On a final note – GA6

should not be confused with the International Law Commission. Although the

ILC has its roots within the General Assembly, it is analytically and

procedurally separate to it, consisting of leading scholars rather than

diplomatic representatives. Its objectives consist of the development and

codification of Public International Law by those who are concerned with the

law, rather than the consideration of legal questions by those concerned with

the effect of the law on individual Member States.

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http://www.thestudyabroadportal.com/studyabroadblog/take-the-next-step-in-your-career-in-law/

Topic A: The Settlement of International Disputes to which International Organisations are Party

Introduction International Dispute Resolution is an ever-changing field of Public International

Law, setting the foundation for the legal relationship between International

Organisations (IOs) and States. This issue of how to deal with international disputes

to which IOs are parties has only risen relatively recently (given the glacial pace at

which IOs move, as compared to dispute resolution mechanisms). While in existence

for a long time, their independent activities and responsibilities to States have only

materialized in the last few decades. State/IO disputes come as a result of the

permanent dealings states have with IOs, primarily through membership. Given the

difficulties of engaging IOs in arbitration, and the immunities they enjoy before

national courts, International Dispute Settlement Mechanisms are the primary form of

dispute resolution between IOs and States1. All the same, as will be seen – engaging

IOs in such mechanisms is harder than it appears; an issue which has serious

consequences for the international community.

History of the Problem Definitions:

International Organisation:

Vienna Convention on the Law of Treaties: Article 2(1)(i)

o ‘intergovernmental organisation’2

Articles on the Responsibility of International Organisations: Article 2(a)

o ‘organisation established by a treaty or any other instrument governed

by international law and possessing its own international legal

1 Katselas 2011: 2 2 Vienna Convention on the Law of Treaties, 1969

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personality. These may include as members, in addition to States, other

entities.’3

+ Examples of IOs: United Nations; World Health Organisation; Red Cross; Doctors

Without Borders; Organisation for Economic Co-Operation and Development

International Dispute Resolution:

Although no official definition exists for international dispute resolution,

mechanisms can be broadly separated into two fields4:

Adjudicative processes:

o Litigation; arbitration – Where a jury/judge/arbitrator determines

the outcome of the dispute

Consensual processes

o Mediation; conciliation; negotiations – Where parties attempt to

determine the outcome between them

+ Examples of IDR5:

International Court of Justice (governed by the Statute of the ICJ)

o Uses adjudication to resolve questions of international law;

o Only open to States who consent to the Court jurisdiction

WTO Dispute Settlement System (governed by the Understanding on

Rules and Procedures Governing the Settlement of Disputes)

o Uses a combination of negotiation and adjudication to resolve

trade policy disputes;

o Only open to States or Member Governments

International Centre for the Settlement of Investment Disputes (ICSID’s)

(governed by the Convention on the Settlement of Investment Disputes

between States and Nationals of Other States)

o Offers arbitration and conciliation as alternative methods to

resolve international investment disputes;

o Only open to signatories of the ICSID’s Convention;

o Disputes are always mixed (i.e., one State; one private party)

Development of International Organisations

With their roots in the 1814-15 Congress of Vienna and the decision by just

eight European States to seek an institutional alternative to the existing state

system, the number, complexity, and scope of IOs in the last two centuries has

increased exponentially. Although a large majority of IOs as we commonly

understand them are now officially ‘specialised agencies’ of the UN itself

(with their own subdivisions within the agency), the distinct categories of IOs

which exist globally mean that not all have been brushed under the UN

umbrella.

3 Draft Articles on the Responsibility of International Organisations, 2011 4 s1, pg. 2 5 International Dispute Resolution (Overview), ICANN, 2007, p17

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The Union of International Association separates IOs into its three

‘conventional categories’.

1) Inter-governmental Organisations (IGOs)

a. These are bodies based on a formal instrument of agreement

between the governments of at least three nation states, possessing

a permanent secretariat performing ongoing tasks.6

b. However, emerging consensus exists that bilateral agreements

may be considered for classification as IGOs as well7

2) International Non-Governmental Organisations (NGOs)

a. No clear and unambiguous theoretically acceptable definition of

international NGOs has been reached yet, but we do have:

b. Ambiguous ECOSOC definition = any IO not established by inter-

governmental agreement8

3) Multinational Corporations

a. Usually defined on the basis of the several hundred most

economically powerful corporations9

Not only have IOs grown in number, but they have become much more

powerful and have built the capacity to wield great influence over the

international community. However, with great power comes great

responsibility – or so one would think… Unfortunately, the IDR world has not

quite caught up with the new threat posed by international organisations.

Although the Draft Articles on the Responsibility of International

Organisations was introduced in 2011, it only governs the instances in which

an IO will be found responsible for actions attributable to it10. The Articles,

however, fail to address the question of how international organizations can be

held liable for their internationally unlawful actions in an international legal

forum, or how such finding of illegality can be enforced.

Statement of the Problem This issue of resolving disputes between IOs and States (as these are typically

the entities against which IOs incur responsibility) is well demonstrated

through the kinds of disputes between corporations and States regarding

international investment matters

Comparison between States and IOs

A key issue to keep in mind when considering how to address the issue of

settling international disputes to which IOs are party, is that IOs and States are

6 Judge 1977: 54 7 Singer and Wallace 1970: 247 8 UN/ECOSOC Resolution 1296 (XLIV), June 1968 9 Reinalda, B. “From the Congress of Vienna to Present-Day International Organisations” 2014 p. 7 10 s3

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fundamentally different from each other11. In an IDR system designed

explicitly for States, this difference between them will pose serious issues

throughout.

First of all, IOs cannot be expected to adhere to the same standards and

customs as states when it comes to consenting to jurisdiction in cases12. This

makes it a great deal more difficult to be sure that an IDR mechanism inclusive

of IOs will actually be effective, given that IOs may simply reject

court/tribunal jurisdiction. Another crucial difference is in the immense

variation in type and structure of IOs, as opposed to the largely uniform

conception of States the international community (excluding rogue states and

the like). With such variation in types of IOs, it will be difficult to establish a

single IDR mechanism that is able to address all the kinds of disputes these IOs

will find themselves in, and how to cater to the structures and mechanisms

governing each kind.

This having been said, we cannot ignore that the two have much in common.

Most strikingly in that IOs exercise similar functions to States, necessitating

some degree of freedom from judicial interference. In large part, States have

transferred their functions over to IOs, and even created IOs with the specific

aim of taking advantage of their centralization and independence in order to

take on State functions and perform them in a more effective fashion (i.e., the

specialist functions shared between UNOOSA and national space agencies)13.

With this in mind, it will be important to see to what extent this will mean that

IOs can enjoy the same degree and quality of immunity as States in

international legal proceedings. Another similarity is in the place of IOs in

international relations – much like States, IOs want to establish international

credibility and legitimacy in order to maintain relations with States, other IOs

and the international community.

Development of International Dispute Resolution (IDR)

Given the aforementioned issues in categorising and understanding IOs,

creating an institutional regime for IDR that makes space for them is a

challenge. The current institutional regime in place is a good example of how

the categorisation problem affects IOs in IDR.

In the past decades, international law has seen an overwhelming rise in the

proportion of States, IOs and entities with international legal personality

turning to IDR to settle their disputes14. This can be seen across traditional

dispute resolution methods, such as adjudication and even the steep rise in

11 s1, pg 7 12 ibid 13 ibid 14 s1, pg. 2

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popularity of what are typically known as ‘alternative dispute

resolution’ methods such as conciliation, negotiation and mixed DR methods15.

The most important IDR mechanism in international law is adjudication

through the International Court of Justice. Cases decided by the ICJ will be

binding on the parties to the proceedings, and will not be open to appeal. In

order to bring a claim before the ICJ, both parties must consent to the

jurisdiction of the Court – but, more importantly, both parties to the

proceedings must be States. This is a perfect illustration of the issue facing the

adjudication of IO/State disputes in traditional forums. The only available

avenue for IOs to be heard in the ICJ is to seek what is known as an ‘Advisory

Opinion’. However, Advisory Opinions merely carry recommendatory force.

Different from the adjudicatory function of the ICJ, Advisory Opinions are

given on any legal question and, as Nuclear Weapons 16 and The Wall 17

evidence they are just the ICJ’s reflections on legal questions posed to them by

agencies regarding the activities/legality of those agencies.

Investor-State Dispute Settlement (ISDS) Case Study

Fortunately, with the changing perception of the international community as no

longer exclusively based on the traditional nation-state structure, IDR too has

made progress towards recognizing non-state entities in the international legal

process 18 . These steps can be seen in the alternative methods of dispute

resolution which have been gaining in popularity in recent decades. Continuing

the example of corporation/State disputes in questions of international

investment, ICSID and the rise of Investor-State Dispute Settlement (ISDS)

mechanisms, international investment arbitration has risen to the challenge of

incorporating non-state entities in IDR.

ISDS mechanisms are primarily based on the alternative DR methods of

arbitration and conciliation (however, in reality most disputes are resolved

through arbitration). Established through Bilateral Investment Treaties (BITs)

and certain multilateral investment and trade treaties (i.e., NAFTA; WTO

Agreements)19, housed in a series of arbitration houses around the world (i.e.,

ICSID; International Chamber of Commerce; London Court of International

Arbitration; Permanent Court of Arbitration; etc…)20, these disputes are only

open to States and foreign investors 21 . With a tribunal made up of three

arbitrators (two selected by the parties, and the president of the Chamber then

15 Wellhausen, Rachel L., Recent Trends in Investor-State Dispute Settlement (2016), pg. 4 16 Legality of the Threat or Use of Nuclear Weapons 1996 17 Concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory 2004 18 s5, p3 19 s15, pg. 2 20 ibid 21 ibid

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selected between them), the awards made by these tribunals will be

binding on the parties to the proceedings22.

Including IOs in International Dispute Resolution Mechanisms

Put simply, one of the most important problems in the inclusion of IOs in IDR

mechanisms is the fact that the international legal system is not designed for

entities that do not fit the traditional State model23. As we have seen, ISDS

makes important steps in addressing this problem through arbitration between

States and non-State entities (private parties). However, these arbitration

tribunals only have jurisdiction over a fairly niche set of disputes – those

directly pertaining to international investment questions, as between States and

foreign investors. Although this is a crucial class of disputes for international

law to address, it leaves out the rest of the potential troubles IOs are liable to

run into in international law.

Apart from the option to obtain an Advisory Opinion from the ICJ regarding

questions of international law, IOs also have recourse to the lesser-known

Optional Rules for Arbitrations Involving International Organisations and

States under the Permanent Court of Arbitration (PCA)24. Under these rules,

IOs have the opportunity to enter into arbitration proceedings under the

facilitation of the PCA25. The strength of Optional Rules lies in their scope.

Although international commercial arbitration (the arbitration umbrella for

State/private commercial party disputes under which international investment

arbitration falls) has proven to be successful, its success excludes those

disputes which do not contain commercial or private elements. For example, a

dispute between a NGO and a State regarding potential criminal or tortious

activities carried out by the NGO in its work within that State (i.e., negligence

claims brought against Doctors Without Borders by a State in which the NGO

failed to take the proper duty of care in attending to patients).

Linked to the option IOs have to obtain Advisory Opinions from the ICJ, is the

option to submit amicus curiae briefs to those inter-state disputes which IOs do

not have the standing to officially join26. Amicus curiae briefs are essentially

documents submitted by an individual or group that is not a party to

proceedings, but has a strong interest in the matter at hand27. These briefs

contain relevant information as presented from the point of view of the group

or individual, allowing them to air their concerns and opinions on the case.

This practice is useful to some extent in terms of allowing IOs to be included

22 Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (‘The New York Convention) 23 s1, pg. 3 24 ibid 25 Optional Rules of the Permanent Court of Arbitration (containing the Optional Rules for Arbitration between

International Organisations and States 1996) 2012 26 Fach Gómez, K. “Rethinking the Role of Amicus Curiae in International Investment Arbitration: how to draw the line

favourably for the public interest” 2012, pg. 4 27 ibid

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in proceedings, but is severely limited by the ‘bystander’ role IOs are

relegated to. Decisions reached in these cases will still not be binding on, or

have any impact over the IO, and therefore no legal responsibility is incurred28.

If the aim of an IDR mechanism that services IOs is to punish them for actions

for which they should be liable, it is unclear whether amicus curiae briefs will

be sufficient.

Current Situation What does a model IDR Mechanism for State/IO disputes look like?

In order to understand how to structure proposals for change in IDR as

concerns the settlement of disputes between IOs and States, the committee

needs to ask itself what it expects from a model IDR mechanism, and what this

mechanism should be doing for IO/State disputes. To do so, it may be useful to

take a look at the pros and cons of the current dispute resolution systems in

place, with a particular focus on adjudication, arbitration and

negotiation/mediation systems.

Adjudication (i.e., reform of international courts)

Arguments in favour include, but are not limited to:

o Strict substantive and procedural frameworks already in place for

institutions such as the ICJ mean that a decision over an IO/State

dispute would be legally binding and enforceable, were IOs to be

granted standing before international courts29.

Arguments against include, but are not limited to:

o Very difficult to be certain that IOs will be willing to submit to the

jurisdiction of an international court30. This is particularly the case

with politicized IOs, or IOs carrying out constroversial, but

ultimately necessary work.

o Proceedings before international courts are intensely time-

consuming (taking somewhere between 3-5 years usually for an

important case) and resource-heavy31. Where IOs simply do not

have the resources or time available to them to take on these

proceedings, adjudication can be elitist and exclusionary.

Arbitration (i.e., extension of current practice)


o Flexibility inherent in arbitration systems; with ‘ad hoc’ status,

these tribunals are designed to deal with issues as they turn up32.

This is a strong point in favour of arbitration, given the swiftly-

28 ibid 29 s1, pg. 8 30 ibid 31 s1, pg 10 32 s1, pg 13

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moving nature of the international political system, and the place

of IOs within it.

o Freedom to appoint one arbitrator chosen by the party33. With this,

it is more likely that IOs and States will be willing to engage in

arbitration proceedings, given the small measure of control they

have over the case.

o Ability to maintain confidentiality over the proceedings34. Given

the sensitive nature of many of these disputes, arbitration provides

the opportunity to carry out proceedings without having to

publicly divulge confidential information.

Arguments against include, but are not limited to:

o With confidentiality comes the question of transparency.

Although State/IO parties may value the possibility for privacy in

the proceedings, the world has a right to know what happens in

judicial processes.

o Giving parties the ability to choose their own arbitrators

introducing an element of judicial bias into proceedings.

However, the literature around this problem demonstrates that

judicial bias exists in international courts as much as in

arbitration35.

Mediation/Negotiation/Conciliation (i.e., developing and encouraging use)


o Without a formal procedural and substantive framework in place

to guide these alternative DR mechanisms, they enjoy

considerably more flexibility than any of the other options. With

this, they are able to account for the unique needs of IOs in

dispute proceedings.

o Negotiations establish an atmosphere of collaboration between

parties to the dispute – the informal nature of these mechanisms

allow for a tailor-made solution reached by the individuals who

know the situation best – the parties themselves36.

Arguments against include, but are not limited too:

o Mediation/negotiation/conciliation will only work where parties

are willing and able to work together peacefully and

collaboratively to reach a solution. However, given the nature of

disputes, this is usually not the case – where relations turn sour,

their scope for success becomes far more limited37.

o There are few, if any mechanisms in place for the enforcement of

solutions reached by the parties in these IDR systems. Given their

33 ibid 34 ibid 35 ibid 36 ibid 37 ibid

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foundation rests on mutual trust between parties, third-party

enforcement is difficult to introduce38.

With all of the context and history of the issue in mind, GA6 has the task of

taking on the shortcomings of the existing system and asking the international

legal community whether there is a way to wholly include IOs in the IDR

process. As we have seen, there appear to be three options on the table:

1) Reform of existing adjudicative bodies to include flexible measures to

ensure the inclusion of a large category of IOs

2) Development of international arbitration systems to accommodate for a

larger tranche of the IO population

3) Encourage the use of mediation, conciliation and negotiation for disputes

between IOs and States

Each of these options comes with its own caveat, but none is unattainable. This

committee must find a balance between the positives and negatives of each

suggestion and bring new ideas for IDR to the table in order to ensure IOs will

no longer be able to escape judicial accountability for their actions.

Bloc positions Europe

As the economically and socially developed ‘home’ of a large number of the

international legal community’s courts and arbitration centres, the European

Community is in a unique position to lead efforts for reform of existing

institutions. Having long benefitted from the strategic location of these IDR

institutions, the EU is unlikely to give up their central position in the cause of

international justice. Additionally, as the home of a large number of IOs, the

EU has an interest in protecting those organisations where possible. Note that

the EU is an IGO, potentially resulting in conflicting interests for EU States39.

USA

Largely in the same position as Europe regarding its ties to both the

international legal community, as well as international organisations, the USA

has two key issues which set it apart.

1) The USA has long been a staunch supporter of State sovereignty and

freedom from judicial interference within the field of IDR40. This is seen

most clearly with the US policy towards the International Criminal Court

38 ibid 39 Wirth, David A., “Review of International Organisations and International Dispute Settlement” 2003, pg. 1007 40 s4, pg. XXX

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and the controversy stirred by US reluctance to accept the ICC’s

jurisdiction41.

a. With this in mind, the USA may be hesitant about establishing

new judicial institutions and empowering them to issue decisions

impacting both the State, and IOs.

2) Given the amount of US State and IO activity within the international

community, along with its isolationist and protectionist policy, it will be

difficult to compromise on issues of enforcement and legal status of the

decisions awarded by a judicial body.

African and Latin American States

These States are the leaders of the ‘other side’ of the debate over the role of

IDR in IO/State dispute settlement. As the States who benefit (or at least feel

the effects most strongly) from IO activity within their borders, they are also

the States most vulnerable to exploitation by IOs. With this in mind, they are

also the States most likely to benefit from increased jurisdiction issued to

dispute resolution institutions in order to adjudicate/arbitrate/facilitate

negotiations in disputes between States and IOs.

Questions a Resolution Should Answer

- Should there be different kinds of IDR mechanisms in place for different

kinds of IOs?

- Where is the balance to be drawn between the different options on the

table for the situation going forward?

- To what extent are IOs and States similar/different and how will this

shape the kind of solutions the committee should be addressing?

- Can any of the existing constituent instruments, establishing various IDR

mechanisms (i.e., Statute of the ICJ; ICSID Convention; Permanent

Court of Arbitration) be amended to (further) include IOs?

- Can an entirely new IDR system be put in place for IO/State disputes?

41 ibid

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Sources

Fach Gómez, K. “Rethinking the Role of Amicus Curiae in International Investment

Arbitration: how to draw the line favourably for the public interest”. Fordham International

Law Journal 35, 2, 2012, p. 513-524

Judge, A. "International institutions: diversity, borderline cases, functional substitutes and possible

alternatives". in International Organizations; a conceptual approach ed.s Paul Taylor and A J M

Groom (London, Frances Pinter, 1977; New York, Nichols Publishing Company, 1978)

Katselas, Anna T., “International Arbitration vs International Adjudication for the

Settlement of Disputes Between States and International Organisations” International Legal

Studies Vienna 2011, p. 1-22

Wallace, Michael and Singer, David J. "Inter-governmental organization in the global system,

1815-1964; a quantitative description". International Organization, 24, 2, Spring 1970, p.239-287.

Wellhausen, Rachel L., “Recent Trends in Investor-State Dispute Settlement”. Journal of

International Dispute Settlement, 2016, p.1-19.

Wirth, David A., “Review of International Organisations and International Dispute Settlement ed. by

Laurence Boisson de Chazourned, Cesare Romano and Ruth Mackenzie” American Journal of

International Law 97, 2003, p. 1002-1006

International Dispute Resolution (Overview), 2007 ICANN

http://gnso.icann.org/en/drafts/intl-dispute-resolution-overview-june-2007.pdf

Reinalda, B. “From the Congress of Vienna to Present- Day International Organisations”

UN Chronicle 52, 3, 2014, p. 5-19

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226,

International Court of Justice (ICJ), 8 July 1996

Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in the Occupied

Palestinian Territory, International Court of Justice (ICJ), 9 July 2004

http://gnso.icann.org/en/drafts/intl-dispute-resolution-overview-june-2007.pdf

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http://www.altriconfini.it/2013/05/no-il-film-sullarcobaleno-che-mise-fine-alla-dittatura-di-pinochet

Topic B: Immunity of State Officials from Foreign Criminal Jurisdiction

Introduction Under international law there are certain laws that are seen as norms or customary

law; one of which deals with the immunity of state officials from foreign criminal

jurisdiction. This study guide would lay out how the international community

developed this law and the particular issues that have arisen with the immunity of

state officials in the international arena. More specifically, the legality and relevancy

of this “norm” in today’s globalized world would be highly debated and scrutinized

under international law by several member states of the United Nations.

Immunity from prosecution is a creed in international law that allows the accused to

evade prosecution for criminal offenses. There are two types of immunity conditions

recognized by the international arena, the functional immunity also known as ratione

materiae; and personal immunity also known as ratione personae. As a state official,

generally speaking, they are immune from the jurisdiction of other states in relation

to acts performed in their official capacities. This is the rationality behind functional

immunity. The second form of immunity manifests itself through the idea of certain

state officials being granted immunities as well because of their status in the state or

their office. Personal immunity usually tends to apply to the Head of State’s close

confidents such as their cabinet officials and other senior officials.

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The primary methods of judicial enforcement envisaged by international law

are the domestic courts of the state where the human rights violation or international

crime occurred and the courts of the state responsible for that violation. To that end,

international law forces states to prosecute those who have committed international

crimes within their territory. However, these methods of enforcement often fail.

Domestic law may not incorporate the relevant international human rights norm.

Additionally, more and more international crimes are committed by state agents as a

part of their state policy, thus governments do not prosecute their own officials

engaged in such actions.

As this has progressed through the years, the international community is constantly at

war trying to figure out just how far functional immunity and personal immunity

remains applicable when the official in question is accused of committing

international crimes as well as how relevant these norms remain applicable in

international criminal proceedings. In the sections below, an analytical discussion on

the topic will occur, so as to provide for a better understanding on the conflicting

views, in relation to this issue.

History of the Problem The history of the emergence of immunity for state officials from criminal

jurisdiction is ambiguous as it dates back to 3300-4000 years ago when there was a

common practice of “respect and limited inviolability” to messengers. Throughout

the whole history of mankind, there were always certain practices that were aimed at

demonstrating respect towards other states and their respective officials. Even though

the reasons for such practice of nowadays immunity varied dramatically; in medieval

times, immunity for foreign officials was a matter of respect, in Soviet times it was a

demonstration of friendly relations and just a mere convenience, while nowadays,

after practicing it for so many years, and when the principle of immunity is widely

recognized as a custom, it is usually explained as means of sovereign state equality

and state dignity.

Despite the numerous wars the states have fought between each other, the ones with

stable relations have attempted to stick to the norms of immunity and to demonstrate

their utmost recognition. For example, historically it was even illegal to sue a foreign

sovereign-owned trading ship.

From another side, such a practice was creating “nonsensical injustice for aggrieved

private parties” 42 by not suing the foreigners. Nevertheless, jurists say it was

impermissible due to the impossibility of interfering with the sovereignty of another

state. The principle of sovereignty is a fundamental principle of international law

42 Walker, L. (no date) History of Foreign State Immunity. Working Draft of Thesis in Partial Fulfilment Requirements

for the degree of PhD at the University of Sydney

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nowadays as well, but it was modified to such an extent that it is permissible

to sue another state, but yet, not permissible to sue their state officials.

As no legitimate evidence remained regarding any codification of immunity of state

officials’ principles, there were a number of principles that have pushed forward the

principle of immunity of state officials, and have a huge impact on today’s world

order and international law. Consider the Doctrine of Peace of Westphalia43 signed in

1648 that has put an end to Thirty Years war between Spain, France, Holy Roman

Empire, Dutch Republic and Sweden; the main ideas of the doctrine were the

principle of non-intervention of one state into internal affairs of another, the principle

of sovereignty of states and the right of self-determination, and the legal equality

between states.

All of the above principles are fundamental nowadays as well, and even though the

doctrine was signed in 1648, it was very effective in 19th century. The jurists were

referencing Westphalian principles of legal equality while justifying and advocating

the principle of immunity of state officials.

Statement of the Problem Criminal actions of one state against another, or against its own people, are normally

very hostile and violate the non-derogable jus cogens principles44 which abide states

to provide protection from torture, genocide, wars against humanity and the failure of

a state to guarantee this protection cannot be compromised in any way. Non-

derogable rights and jus cogens principles are widely expressed in International

Covenant on Civil and Political rights, European Convention on Human Rights and

other internationally recognized human rights instruments. Those actions are ordered

by state officials as only they have competence to execute such actions. Having

immunity on prosecuting them tights the hands of international justice to punish the

ones responsible for acts. Therefore, as state officials remain not liable upon their

actions, and are confident that they are immune against prosecutions, the hostile

actions remain unpunished.

The effects of this criminal immunity can be separated into four separate categories45:

1) Functional immunity means that a state official cannot be prosecuted when he

is holding office, and therefore, all accusations and prosecutions can be

executed only after his term ends. During the end of his term, the highly

43 Culter, A.C. (2001). Critical Reflections on the Westphalian Assumptions of International Law and Organization: A

Crisis in Legitimacy. Review of International Studies, Vol. 27, pages 133-150; Hawtin, J. Political Theory & The

Treaty of Westphalia. Available Online: http://jaclynhawtin.com/wp-content/uploads/2012/04/Political-Theory-the-

Treaty-of-Westphalia.pdf 44 International Covenant on Civil and Political Rights 1976; European Convention on Human Rights 1950 45 Dapo Akande and Sangeeta Shah, 'Immunities of state officials, international crimes, and foreign domestic courts'

(2010) 21(4) European Journal of International Law <http://ejil.oxfordjournals.org/content/21/4/815.full> accessed 2

December 2016 815–852

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required evidences and witnesses’ testimonies cannot be collected, and can be

intentionally or unintentionally damaged or deleted, which makes the

investigation harder.

2) Immunity provides unaccountability for the acts of office holder, and therefore

can encourage and tolerate abuse of power. Even if the crimes are related to

office, and therefore are protected under immunity, the mere implementation of

those crimes tells a lot about the way an official is governing. Therefore,

immunity prevents the visibility of public office.

3) State officials are people representing the country outside of it, and governing

it internally. Voters have the right to know information about their candidates,

including any possible criminal records, as this may affect their decision. This

specifically applies in cases of state officials running for second term.

Immunity helps them not to be prosecuted and charged for any criminal

offences they may have done, and therefore, all those crimes remain unknown.

4) As experience in Arab Spring shows, state officials have crimes executed that

may and will become publicized and make them be prosecuted after the office.

Realizing that, state officials are trying to hold the office as long as possible in

order not to lose their immunity and be prosecuted for the crimes they’ve done.

While trying to hold the office, rebellions and other unrests may take place as

it has been in the case of Muammar Gaddafi of Libya. Such resistance of state

officials to leave the office because of their crime records normally leads to

lots of unnecessary suffering and killing of local population by means of

suppression.

Despite the drawbacks immunity to state officials’ causes, it has a customary nature,

and this continuous practice executed for so many years should not be

underestimated. Besides the reasons of respect and friendship between the states and

equal sovereignty of the states, there are some practical reasons for such conduct, and

those include the dignity of the office and the public respect that may be damaged in

case of wrongdoing. Nevertheless, as the main principle of equality states, “everyone

is equal before the law”, and the questions if state officials should fall into category

of “everyone”, and if immunity should prevail human rights are always open to

debate.

Current Situation Although there are numerous international treaties discussing the aspect of immunity

for agents of the State; there is no binding international treaty regulating the all issues

or related issues to the immunity of current and former State officials from foreign

criminal jurisdiction. Even the international treaties on immunity serve as

supplements of existing international law, merely confirming the existence of

customary international law. This fact has been reiterated in several instances at the

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domestic court level as in the 2001 ruling of the Qaddafi Case46; the French

Court of Cassation upholding the fact that customary international law does not allow

for the prosecution of Heads of State of a foreign nation. The French Advocate

General stated “the principle of the immunity of Heads of State is traditionally

regarded as a rule of international custom necessary for the preservation of friendly

relations between States.” 47

Questions regarding the immunities of foreign leaders and other high officials

frequently came up due to the development of universal jurisdiction for international

crimes. In this, domestic courts have really stepped up in trying to prosecute

individuals. In February 2011, George W. Bush cancelled a trip to Switzerland

following human activists submitting a complaint about him to Swiss prosecutors48.

In March, former president of the Soviet Union Mikhail Gorbachev visited London;

an ex parte application for his arrest on the grounds of alleged torture was made by

an individual claimant. The court dismissed the application on the notion that

Gorbachev was entitled to immunity as a member of a special mission. These are a

just few instances where the immunity of a Head of State was put into question. The

International Court of Justice (ICJ) addressed functional immunity in the case of

Certain Questions of Mutual Judicial Assistance in Criminal Matters (Djibouti v.

France)49. The ICJ suggested that, it is the responsibility of the official’s home state

to notify the state seeking to exercise jurisdiction and that the latter is not obliged to

raise or consider the matter of its own accord.

For personal immunity to be applied, the prerequisite for the forum state to accept the

individual in question as the head of a recognized state, the head of government of

that state, foreign minister or the holder of some other high office. There is no

prescribed procedure for satisfying the requirements of a domestic court on this

matter. This can cause extreme problems in cases of uncertainty of the existence of a

state where a leader has seized power and removed from office the previous head of

state who may still lay claim to that title as well. The international community must

also further consider the issue of the position of presidents and prime ministers elect.

These are persons who are designated successors to the incumbent head of state or

head of government but have not formally assumed office. The question of how these

individuals should be treated under international law is significant as the transition

period may take several months, where they might make several trips to other states.

46 Dapo Akande, 'The ICC prosecutor requests an arrest warrant for Gaddafi: Immunity issues and questions about the start of the Libyan armed conflict' (EJIL Analysis, 23 May 2011) <http://www.ejiltalk.org/the-icc-prosecutor-requests-an-arrest-warrant-for-gaddafi-immunity-issues-and-questions-about-the-start-of-the-libyan-armed-conflict/> accessed 2 December 2016 47 BBC, 'France will not prosecute Gaddafi' BBC Europe (13 March 2001) <http://news.bbc.co.uk/1/hi/world/europe/1218245.stm> accessed 2 December 2016 48 Ewen MacAskill and Afua Hirsch, 'George Bush calls off trip to Switzerland' The Guardian (6 February

2011) <https://www.theguardian.com/law/2011/feb/06/george-bush-trip-to-switzerland> accessed 2 December 2016 49 Certain Questions of Mutual Judicial Assistance in Criminal Matters (Djibouti v. France), Judgement, ICJ

Reports 2008, p. 177 para. 194-197

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Another issue concerning immunity of heads of state is the immunity of these

officials once they are no longer in office. Currently, Spain is leading the way with

the issue of arrest warrants in respect of several former heads of state, including two

former presidents of Guatemala, Rios Montt and Oscar Mejia Victores; on the

grounds of genocide, torture and other related crimes. Some arrests of junior officials

have been made but then the issue of functional immunity was called into question

once again. In numerous cases, proceedings have been abandoned or put on hold

because of the concern of evidence, deal or absence of the accused. In some cases,

the home state seem to waive immunity or simply ignore the issue altogether. There

have also been cases suggesting a strong reluctance to bring officials to justice when

the foreign state itself objects to any foreign prosecutions. The United States is

notorious for evading international court procedures as they have not ratified the ICJ

or ICC mandates, as well as their extradition agreements with various states.

Immunity of the heads of state from foreign criminal jurisdiction is a matter the

international community must handle but one that they must recognize should be

handled gently. Immunity for such officials is layered and has extensive implications

on diplomatic relations between states. However, like every other aspect of

international relations, it may seem impossible but it is a matter that can be resolved.

State officials at times break international law and seem to easily get away with it due

to the immunity clause granted to them by customary international law.

Bloc positions Europe

Although, immunity is a topic that is constantly discussed at the EU level; numerous

European states believe in the idea of having heads of states answer for their

international crimes once the official is out of office. They believe in ensuring the

individuals who suffered at the hand of the accused would be brought to justice. They

tend to do this at the domestic level.

Africa

African states tend to be highly against this policy, usually because of their corrupt

officials and yet majority of the Heads of State whose immunity becomes an issue for

most of the international community, tends to be African heads of state and their

high-ranking officials. The African Union fully supports the immunity of the heads of

state; this caused a lot of controversy domestically for most of states.

South America

Just like Africa, numerous South American heads of state have been indicted on the

grounds of numerous international law offences and like most heads of state have

been granted full immunity. Riots have broken out throughout the South American

continents due to the violence perpetrated against the peoples of nations. The South

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American states depend heavily on international proceedings to prosecute

violators of international law.

North America

Both Canada and Mexico are party to numerous treaties and alliances that allow for

extradition of criminals to be prosecuted in foreign states. The United States of

America steadfastly holds to ensuring their criminal proceedings are upheld for

domestic and international crimes alike. There are instances where members of the

international community view American heads of state as a war criminal and like

countless other times, they have been granted the immunity and the court proceedings

never quite came into fruition.

Asia

The Asian continent generally believes in the immunity of the head of state and

attempts to handle issues of state official transgressions on the domestic court levels.

There is a deep mistrust in the international criminal proceedings, which they believe

tends to have a very Western slant towards states.

Questions a Resolution Should Answer Despite the fact that immunity of state officials is a customary law that is highly

recognized, and Arrest Warrant case (Democratic Republic of Congo v Belgium)

could be the finest example of ICJ’s obedience to it, it creates many policy problems

and social injustices, letting high-ranked officials violate jus cogens norms and other

fundamental human rights without being liable for that. In the above-mentioned case,

ICJ held that the Minister of Foreign Affairs, as well as Head of State and Head of

Government do enjoy the ratione personae immunity, as they have “plenary

competence in international relations”. There are some states, like United Kingdom,

that grant immunity to officials outside of troika, like ambassadors and Defence

ministers, and this practice is condemned by International Law Commission.

In regard to functional immunity, namely, when state official cannot be prosecuted

for crimes attached to his state, the developments were demonstrated in this regard in

the case law. One of the most prominent ones is Pinochet case, where the former

president of Chile was prosecuted and therefore, both functional and personal

immunities were overruled. The reasoning behind this decision of UK’s House of

Lords was that Pinochet has breached the jus cogens norms, namely the United

Nations Convention against Torture and the responsibility for such acts “cannot be

derogated under any circumstances including immunity”. The principle of immunity

of state officials was also overridden by ad hoc International Criminal Tribunal for

the Former Yugoslavia in Milosevic, Furundzija and Karadzic cases, as well as by

ICJ in Arrest Warrant case of 2000 (Democratic Republic of Congo v Belgium).

Depriving immunity from state officials in violations of jus cogens norms and grave

violations of human rights has starting becoming a trend. The reasoning behind such

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depravation is that international crimes cannot be attributed to state’s actions,

but shall be attributed to individuals, namely, state officials. Despite the fact that

there is a slowly growing number of cases promoting this approach, and the urgent

need of changing international law in regard to state officials’ immunity, there is no

precise guide that would list the conditions under which the immunity of state official

can be deprived, and the reasons of doing so; where and under which law those state

officials shall be prosecuted; if state officials outside of “troika” should be granted

with immunity and the procedure on identification if the acts of state officials are

attributable to state. Those issues of modification of the customary law of immunity

of state officials can be consulted with Legal committee, and reflected in its

resolutions.

In order to write a resolutions answering all above questions, the following issues

should be considered:

- Is immunity of state officials consistent with the need to uphold justice?

- Does immunity provide high-ranked officials with an opportunity to fearlessly

and dauntlessly break the law?

- Is immunity to officials is consistent with the requirement of social justice?

Sources Alebeek, R. (2010). Immunity and Human Rights?: A Bifurcated Approach.

Proceedings of the Annual Meeting American Society of International Law, 104 (22) ,

pg. 67-72.

Bradley, Curtis. (2011). International Law and the US Common Law of Foreign

Official Immunity. The Supreme Court Review, 2010 (1), pg. 213-273.

Certain Questions of Mutual Judicial Assistance in Criminal Matters (Djibouti v.

France), Judgement, ICJ Reports 2008, p. 177 para. 194-197.

Sixty-Sixth General Assembly. (2011). Immunity of State Officials Remains at Issue

as Legal Committee Ends Review of International Law Commission Report. UN

Press available at: http://www.un.org/press/en/2011/gal3428.doc.htm

Tunks, M. (2002). Diplomats or Defendants? Defining the Future of Head of State

Immunity. Duke Law Journal, 52 (3), pg. 651-682.

http://www.un.org/press/en/2011/gal3428.doc.htm

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Wuerth, I. (2012). Pinochet’s Legacy Reassessed The American Journal of

International Law, 106(4), pg. 731-768.

Kolodkin, R. (2008) Preliminary report on immunity of State officials from foreign

criminal jurisdiction, by Roman Anatolevich Kolodkin, Special Rapporteur. Available

at: http://legal.un.org/ilc/documentation/english/a_cn4_601.pdf (Accessed: 7

November 2016).

Walker, L. (no date) History of Foreign State Immunity. Working Draft of Thesis in

Partial Fulfilment Requirements for the degree of PhD at the University of Sydney

Yang, X. (2012) Immunity in International Law. Cambridge University Press.

Akande, D. (2013) ‘Should the International Law Commission Overrule the ICJ in its

Articles on Immunity of State Officials from Foreign Criminal Jurisdiction?’, Blog of

European Journal of International Law (August)

D’Argent, P. (2013) ‘Immunity of state officials and obligation to

prosecute’, Universite Catholique du Louvain(March),

Democratic Republic of Congo VS Belgium [2000]

Pinochet case [2001]

Bianchi, A. (1999) ‘Pinochet case [2001]

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Conference Information

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Documents

Table of Content€¦ · standards, to the legality of targeted killings, along with having created the Ad Hoc Committee on International Terrorism in 1972. On a final note – GA6