International law recognizes the capacity and authority of the State as an international person to exercise power and the State exercises such power by means of jurisdiction. This jurisdiction concerns ‘essentially the extent of each state’s right to regulate conduct or the consequences of events’;1 this right being limited by the equal rights and sovereignty of other States.2 Brownlie describes jurisdiction as ‘an aspect of sovereignty [which] refers to judicial, legislative and administrative competence’.3 Steinberger elaborates that:
jurisdiction means the comprehensive governmental power of a State, including, in particular its legislative, judicial and administrative powers …. In relation to State immunity its main practical importance consists in the power of the territorial State to adjudicate, to determine questions of law and of fact, to administer justice, and in such other executive and administrative powers as are normally exercised by the judicial and administrative authorities of the territorial State.4
The ambit of this governmental power of the State can be divided into jurisdiction to prescribe rules (‘legislative’ or ‘prescriptive’ jurisdiction), jurisdiction for establishing procedures for identifying breaches of the rules and the precise consequences thereof (‘adjudicative’ jurisdiction), and jurisdiction to impose consequences for breaches or, pending adjudication, alleged breaches of the rules (‘enforcement’ jurisdiction).5 These divisions are not rigid. ‘Adjudicative’ jurisdiction, which is essentially the jurisdiction in respect of which State immunity is invoked, may illustrate both ‘legislative’ and ‘enforcement’ jurisdiction, in that the courts may both prescribe rules and apply them.
The exercise of such jurisdiction by States may be analysed by reference to four bases: territory, nationality, protection of a State’s interests, and universality. An act which takes place across boundaries may attract the territorial jurisdiction of two States by reason of the place where the act was begun and the place where it takes effect. Nationality as a basis may be active or passive; the first relates to jurisdiction based on acts performed by the nationals of a State and the second to acts suffered as victims by nationals of a State; in both cases the acts may be performed abroad. The protective principle allows a State to exercise jurisdiction over foreigners outside its territory to protect its own governmental functions.6 The protective basis of jurisdiction may be used, for example, to prosecute those engaged in counterfeiting currency, submitting false statements to officials, or attacking diplomats.7 Universal jurisdiction allows every State to exercise jurisdiction irrespective of the situs of the offence and the nationalities of the alleged perpetrator and the victim.8 The classic example is jurisdiction over piracy on the high seas.9
A claim to immunity by a State or some emanation of it primarily challenges jurisdiction on the basis of personality, of which nationality is one form. But the restrictive doctrine uses the location of the act with or the connection by nationality etc of an individual with the forum State as elements in defining the scope of exceptions to immunity, as the employment exception restricted to performance of the employment within the forum or at least the making of the contract relating to it; and the personal injuries exception is restricted to acts causing such injuries within the forum. In addition, the forum State’s obligations under human rights conventions may extend its jurisdiction (see ‘extraterritorial jurisdiction’ below).
The exercise of jurisdiction over the acts of a foreign State itself, which gives rise to a claim of immunity, will most usually be based on their commission within the forum State’s territory or extraterritorial areas under its effective control, given that beyond its own territory the foreign State’s competing claim to jurisdiction—at any rate in respect of its public acts—may be equal or stronger than that of the forum State.
As the European Court of Human Rights (ECtHR) in Bankovic stated: ‘While international law does not exclude a State’s exercise of jurisdiction extra-territorially, the suggested bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are, as a general rule, defined and limited by the sovereign territorial rights of the other relevant States’.10 The utility of the territoriality principle lies in its allocation of jurisdictions and avoidance of concurrent jurisdiction. With some 193 Member States of the UN and a few others (eg the Vatican) making up the international community, it provides a principle of reciprocal exclusion whereby legal order can be maintained by means of the territorial sovereignty of the States’ authority, and enforcement powers are allocated to and exercised by the multiplicity of territorial units that make up modern States. State immunity provides a procedural plea to assist national courts to give effect to this legal order and the principle of reciprocal exclusion. As noted by Judge Huber in the Island of Palmas case:
Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein to the exclusion of any other State, the functions of a State. The development of the national organisation of States during the last few centuries and, as a corollary, the development of international law, have established this principle of the exclusive competence of the State in regard to its own territory in such a way as to make it the point of departure in settling most questions.11
Under the common law, ‘jurisdiction’ is strongly based on the exercise of this territorial jurisdiction and where extended beyond the forum State’s territory continues to be closely associated with the State’s imperium, or the extent to which its power can effectively be enforced.
Courts in civil law systems do not claim or exercise inherent jurisdiction in the same way as common law courts do. ‘Jurisdiction’ to them is a neutral term describing the extent of a State’s powers by reference to external criteria set by international law and the State’s constitution or legislation made thereunder; the term ‘competence’ indicates the court to which that jurisdiction is allocated. The difference in meaning is particularly apparent in the distinction generally made by civil law and carried over into the law of State immunity between adjudication and enforcement, the latter often being carried out by State authorities independent of the civil courts. Further, the extent of jurisdiction may vary according to the manner of its exercise; enforcement jurisdiction depends directly on the coercive power, and the ability to enforce it, of the State and has a narrower ambit than adjudicative jurisdiction, which relies more on respect for law, reputation, and a dislike of participation in transactions tainted with illegality.
Municipal courts give effect to the territorial principle in a number of ways. First, they operate rules of definition which explain the types of acts of persons and property coming within that jurisdiction. Secondly, they acknowledge rules of restraint in the exercise of territorial jurisdiction developed through private international law rules and principles of comity and reciprocity. Finally, there are rules of exclusion imposed by international law and obliging the court to refuse jurisdiction; exclusion rules may operate beyond the territorial State’s own jurisdiction in the requirement of non-intervention in the domestic affairs of another State; or even within its territorial jurisdiction by the operation of the rule requiring the exhaustion of local remedies, and the rule of immunity, which is our particular area of concern: that is, the exclusion of the exercise of territorial jurisdiction over another State, its property, and representatives, in particular members of the diplomatic mission or of a visiting armed force. Rules of restraint leading to a declaration of no competence or recognition of another State’s jurisdiction may achieve similar results to rules of exclusion which prevent the exercise of any territorial jurisdiction over a particular legal person.
In the nineteenth century, it was the presence of the personal sovereign or his diplomatic representative or of the State’s property—particularly its warships—within the territory of the forum State which both grounded the claim that they came within that State’s power to prescribe, adjudicate, and enforce its law and led the courts to avoid the consequences of such exercise by recognizing that their foreign external status entitled them to immunity. The principle of territorial jurisdiction is thus clearly the primary condition which gives rise to the law of State immunity, given that beyond its own territory, the foreign State’s competing claim, at any rate in respect of its acts of a public nature, may be equal or stronger than that of the forum State.
The expansion of extraterritorial jurisdiction to protect human rights—discussed below in the context of recent ECtHR case-law—may affect the relationship between immunity and jurisdiction in two ways. First, the extension of legal obligations beyond a State’s territorial borders necessarily broadens the scope of that State’s liability and increases the potential for disputes involving questions of the immunity of that State and its organs or officials. Secondly, extraterritorial jurisdiction recalibrates the competing claims between the foreign State and the forum State because the fact that an act occurred outside of the forum State’s territory no longer deprives the State of responsibility and hence would seem to permit some degree of a right to conduct judicial proceedings over the consequences of such an act.
In its 2012 Jurisdictional Immunities judgment12 the International Court of Justice (ICJ), in discussing the procedural nature of the plea of state immunity addressed the two principles of sovereign equality and sovereign territoriality and ‘the departures’ from one principle that the other principle’s application required:
… the rule of State immunity occupies an important place in international law and international relations. It derives from the principle of sovereign equality of States, which, as Article 2, paragraph 1, of the Charter of the United Nations makes clear, is one of the fundamental principles of the international legal order. This principle has to be viewed together with the principle that each State possesses sovereignty over its own territory and that there flows from that sovereignty the jurisdiction of the State over events and persons within that territory. Exceptions to the immunity of the State represent a departure from the principle of sovereign equality. Immunity may represent a departure from the principle of territorial sovereignty and the jurisdiction which flows from it. (para 57)
In this paragraph the ICJ would seem to recognize the significance of a territorial link with the forum State’s jurisdiction and relevance to any setting aside of a foreign State’s immunity and support for a claim arising from acts of a foreign State committed in the forum State territory. The Court’s ruling in this case was confined to confirming that State immunity continued to apply to acts of the armed forces of a foreign State committed in another State’s territory in time of international armed conflict but its reference to the competing principle of territorial sovereignty, read together with Judge Gaja’s dissenting opinion, may pave the way for some future recognition and extension of the forum State’s jurisdiction, beyond claims based on contract, to delictual acts of a foreign State committed in peace time, at least where they are committed within the territory of the forum State (see further under the exercise of civil jurisdiction over a foreign State and Chapter 15).
Territorial jurisdiction, which Warbrick describes as ‘the area of activity which is not regulated by international law’,13 represents the internal expression of a State’s sovereignty, and its domestic jurisdiction over the matters ‘which by international law are solely within the domestic jurisdiction’ of a State (League of Nations Covenant, Article 15(8)) or ‘which are essentially within the domestic jurisdiction of any State’ (UN Charter, Article 2(7)). Domestic jurisdiction, however, varies over time, and in general is contracting in scope by reason of the increasing international obligations undertaken by the State. Indeed, as Warbrick points out, it is today misleading to equate ‘internal’ or ‘domestic’ jurisdiction with a spatial idea of regulation of acts performed within a State’s territory; it would seem more appropriate in this ‘unbundling of territoriality’14 to speak of ‘a bundle of competences’.15 International law acknowledges the exclusive competence of a State to recognize other States and to establish diplomatic relations, the grant of adjudicative immunities, and powers which affect activities and persons both within and outside the forum State.
Physical presence within the territory is not the only basis for the exercise of territorial jurisdiction. Immunity is extended to the artificial legal person of the State and its departments and State agencies located and making decisions outside the territory of the forum State; it covers the consequences of acts and transactions concluded and largely performed outside the forum State. The term ‘territorial connection’ or ‘territorial jurisdiction’ can be used to link acts or persons remote from the territorial State merely by reason of some effect or element identified as occurring within the State, as with offences committed outside the territory where subsequent ‘entry to or presence within’ the territory suffices as a territorial link. Regulation of a branch of an undertaking may be said to be territorial in that the branch is located within the territory of the prescribing State but the regulation is applied to the parent company located elsewhere.
This state of affairs is well summed up by Rigaux who, as Special Rapporteur to the Committee on Extraterritorial Jurisdiction of the Institut de droit international, notes that ‘compétence, territorialité, extraterritorialité sont des concepts flous’ and that conflicts in exercise of jurisdiction between States take place in a ‘zone grise’ where the classificatory concepts themselves overlap.16
As regards the protection of human rights, the extraterritorial jurisdiction of States as construed by international and national courts has become increasingly broad. Both the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR) contain a general jurisdiction clause by which the States Parties undertake to ‘secure to everyone within their jurisdiction’ (ECHR, Article 1) or ‘to respect and to ensure to all individuals within its territory and subject to its jurisdiction’ (ICCPR, Article 2) the rights set out and further defined in these conventions. The ICJ has taken the view that the provisions of the International Convention on the Elimination of all Forms of Racial Discrimination (CERD), particularly Articles 2 and 5, ‘generally appear to apply, like other provisions of instruments of that nature, to the actions of a State party when it acts beyond its territory’.17 As Milanovic demonstrates,18 the universality of application which forms the underlying purpose of human rights conventions has led to an ever-widening scope given to the obligations undertaken by States Parties. In order to provide a remedy to victims of breach of human rights, the area of and persons subject to the State Party’s jurisdiction to provide for their protection is enlarged beyond the boundaries of its territory and to persons other than employees, agents, or persons in other recognized relations.
The case-law of the ECtHR has shown a progressive development In Bankovic, in rejecting claims brought by the relatives of people who had been killed in a missile attack from a NATO aircraft on a television centre in Belgrade the Grand Chamber reasserted the basic territorial nature of a State’s jurisdiction. It acknowledged that the jurisdiction of the State for purposes of human rights protection extended beyond territorial limits but held inadmissible a claim made against Member States of NATO for violation of Articles 2, 10, and 13 (the rights to life, freedom of expression, and an effective remedy) of the Convention, declaring the exercise of extraterritorial jurisdiction by a contracting State to be exceptional.19
The Grand Chamber’s reliance in Bankovic on the presence of two further requirements—first, of the State Party’s capacity as regards the alleged breach of the Convention to apply the whole of the human rights regime, and secondly the exclusion of jurisdiction by definition of the ‘espace juridique’ concept as the area of application of the ECHR—have been progressively abandoned in subsequent decisions. Both these requirements were applied by the House of Lords in its 2007 Al-Skeini judgment in respect of the killing of certain individuals by members of the British armed forces in the course of their duties carried out in the occupation of Iraq. In that case the majority of the House of Lords (Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood)—with Lord Bingham of Cornhill in dissent, holding that the Human Rights Act had no extra-territorial application—ruled that the UK was solely under obligation to exercise jurisdiction pursuant to the Convention as regards the sixth claimant in respect of the human rights of his son, Baha Mousa, who died in a military prison in Iraq while in British custody, including the obligation as to conduct of an inquiry over the prison where Mousa was held. In respect of the five other incidents occurring during armed conflict, the House of Lords held that the UK had no such obligations under the Convention. In so ruling, Lord Brown (with whom the others agreed), emphasized that ECHR Article 1 sought to reflect an ‘essentially territorial notion of jurisdiction’ with ‘other bases of jurisdiction being exceptional’ and likened the detention in a prison to such a territorial notion of jurisdiction.20 But the Lords’ judgment followed Bankovic in applying the requirement of the State Party’s capacity to apply the whole of the human rights regime, and the definition of the ‘espace juridique’ concept to justify the exclusion of jurisdiction as regards the armed conflicts incidents.
In 2010, however, the Grand Chamber of the ECtHR reversed the House of Lords’ decision in Al-Skeini so far as its finding on the five armed conflict incidents and held jurisdiction within the meaning of Article 1 of the Convention to be established as regards the violation of the procedural obligation under Article 2 to carry out an adequate and effective investigation into the deaths occurring in those incidents during security operations carried out by British military forces.21 In doing so, it abandoned the restraints on the finding of jurisdiction that had applied in Bankovic. So far as the all-or-nothing approach to the ability of the State Party to apply the human rights regime, the Grand Chamber in Al-Skeini stated:22
… the Court’s case-law demonstrates that, in certain circumstances, the use of force by a State’s agents operating outside its territory may bring the individual thereby brought under the control of the State’s authorities into the State’s Article 1 jurisdiction. This principle has been applied where an individual is taken into the custody of State agents abroad. The Court does not consider that jurisdiction in the above cases arose solely from the control exercised by the Contracting State over the buildings, aircraft or ship in which the individuals were held. What is decisive in such cases is the exercise of physical power and control over the person in question.
Citing the facts in the cases of Öcalan, Issa, Saadoon, and in Medvedyev23 the Grand Chamber continued:
It is clear that, whenever the State through its agents exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Convention rights can be ‘divided and tailored’ (compare Banković, § 75).
Further, as regards the Convention legal space (‘espace juridique’) objection to an extension of the jurisdiction provided in the ECHR, the Strasbourg Court noted first that:24
The Convention is a constitutional instrument of European public order (see Loizidou v Turkey (preliminary objections), cited above, § 75). It does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States (see Soering, cited above, § 86).
The Court continued by qualifying its limitation in Bankovic to the area covered by the territory of the States parties as follows:25
The Court has emphasised that, where the territory of one Convention State is occupied by the armed forces of another, the occupying State should in principle be held accountable under the Convention for breaches of human rights within the occupied territory, because to hold otherwise would be to deprive the population of that territory of the rights and freedoms hitherto enjoyed and would result in a ‘vacuum’ of protection within the ‘Convention legal space’ …. However, the importance of establishing the occupying State’s jurisdiction in such cases does not imply, a contrario, that jurisdiction under Article 1 of the Convention can never exist outside the territory covered by the Council of Europe Member States. The Court has not in its case-law applied any such restriction…
Both a spatial criterion—the area of effective control regardless of territorial limits—and a personal criterion—the extent of control over the conduct of individuals, particularly by the State’s own organs or agents—are present in this formulation of effective control as the definition of jurisdiction for the purposes of human rights conventions.26
Accordingly, the Grand Chamber’s conclusion as regards the jurisdiction exercisable by the UK under the ECHR in Al-Skeini was:27
… following the removal from power of the Ba’ath regime and until the accession of the Interim Government, the United Kingdom (together with the United States) assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government. In particular, the United Kingdom assumed authority and responsibility for the maintenance of security in South East Iraq. In these exceptional circumstances, the Court considers that the United Kingdom, through its soldiers engaged in security operations in Basrah during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of Article 1 of the Convention.28
Although the rulings in Al-Skeini and Bankovic are confined to the extraterritorial reach in the application of the regional ECHR, those decisions and subsequent case-law applying the ECHR may well in the long run change the classic territorial model of jurisdiction found in general international law. Whilst it may be increasingly difficult to treat jurisdiction exercised extraterritorially as exceptional, subject to further developments, its relevance currently should be confined to the application of human rights conventions based on universality. Without such obligations and the entitlement which they grant to the beneficiaries of human rights obligations, the accepted position in general international law remains that the territory of the State is the basis of jurisdiction. An exception to this principle is to be found in the extraterritorial jurisdiction exercised by US courts pursuant to ATS (now modified by Kiobel) and the Anti-Terrorism and Effective Death Penalty Act 1996, which removes the jurisdictional nexus requirement allowing proceedings wherever committed for specified offences causing death or personal injuries by acts of terrorism to designated foreign States (see Ch 8 ‘US FSIA’ and Ch 15 ‘Territorial Tort Exception’ and amendments to the Canadian SIA 2012 follow the US model of designating ‘State sponsors of terrorism’).
Despite this specific North American legislative providing for extraterritorial jurisdiction and consequent court practice granting reparation for acts of terrorism, the territory of the State would seem to continue as the strongest basis of jurisdiction in any challenge of a claim to entitlement of immunity by another State. This has recently been confirmed in the 2013 Kiobel decision, in which the Supreme Court has held that claims will generally not be allowed under the ATS if they concern conduct occurring in the territory of a foreign sovereign; and stated further that even ‘where the claims touch and concern the territory of the US, they must do so with sufficient force to displace the presumption against extraterritorial application’.29 The Supreme Court unanimously dismissed the lawsuit alleging human rights violations by a Dutch company (Shell) committed by Nigerian soldiers against Nigerian citizens in Nigeria.30 The majority cited ‘the danger of unwarranted judicial interference in the context of foreign policy’.31
Under international law the independent sovereign status of the foreign State and its own jurisdiction based on that sovereignty validates its presence and acts; non-justiciability not disregard of immunity of the foreign State would seem the more appropriate plea where confronted with the foreign State’s rival claim to such jurisdiction. Spatial and personal criteria employed by the ECtHR for ensuring the protection of human rights by the territorial State as a party to human rights conventions would seem to have little application in determining the scope of State immunity and the exceptions thereto in relation to another sovereign State to justify the extension of a State’s jurisdiction.32 Any act of a foreign State committed beyond UK territory but to which the UK extraterritorial jurisdiction extends by reason of loss caused to an individual entitled to the protection of English law, particularly remedies such as habeas corpus or discovery of evidence, would seem to be defeated by the exercise of a competing jurisdiction of such a foreign State.
Whilst a State’s jurisdiction may no longer be limited solely over acts performed within its territory, it nonetheless remains correct that proceedings based solely on the nature of the prohibited act wherever and by whom committed require some identification of a spatial, personal or other element to bring it within the ‘jurisdiction’ of a State and to link it to its exercise of public powers. Universal jurisdiction is not the same as the principle aut dedere aut judicare,33 whereby parties agree to extradite or prosecute an alleged offender found on their territory; the obligation to extradite or prosecute is not restricted to situations where the underlying jurisdiction is universal.34
The restraints on the scope of universal jurisdiction by the competing jurisdiction of other States is still a matter to be worked out. Although the national legislation of many States provides for the exercise of universal jurisdiction over certain crimes, very few States have actually invoked universal jurisdiction since the Second World War.35 Decisions in national courts show an unwillingness to exercise universal jurisdiction based solely on the gravity of the international crime committed unless there is some further connecting link, such as nationality, residence, or presence.36 The absence of State practice on this matter is supported by the recent distinction made by the ICJ in the Belgium v Senegal case in accepting jurisdiction at the instance of a State Party to the 1984 UN Torture Convention to adjudicate the extent of the Convention’s obligation to prosecute but rejecting any such jurisdiction based on customary international law.37 Useful guidance for a court debating whether to exercise universal jurisdiction may be found in the Princeton Principles of Universal Jurisdiction 2001 which provide in principle 8:
Where more than one state has or may assert jurisdiction over a person and where the state that has custody of the person has no basis for jurisdiction other than the principle of universality, that state or its judicial organs shall, in deciding whether to prosecute or extradite, base their decision on an aggregate balance of the following criteria:
(a) multilateral or bilateral treaty obligations;
(b) the place of commission of the crime;
(c) the nationality connection of the alleged perpetrator to the requesting state;
(d) the nationality connection of the victim to the requesting state;
(e) any other connection between the requesting state and the alleged perpetrator, the crime, or the victim;
(f) the likelihood, good faith, and effectiveness of the prosecution in the requesting state;
(g) the fairness and impartiality of the proceedings in the requesting state;
(h) convenience to the parties and witnesses, as well as the availability of evidence in the requesting state; and
(i) the interests of justice.
These principles are relevant both in determining the proper scope of a State’s jurisdiction over acts committed outside its territory and of the range of acts of a foreign State which a plea of immunity may properly exclude from adjudication by the national courts of another State.38
A perennial issue in the doctrine of State immunity is the irreconcilable conflict of jurisdiction between two States: the forum and the foreign State. Immunity comports freedom or exemption from territorial jurisdiction. It bars the bringing of proceedings in the courts of the territorial State (the forum State) against another State. It says nothing about the underlying liability which the claimant alleges. Immunity does not confer impunity; the underlying accountability or substantive responsibility for the matters alleged in a claim remain; immunity merely bars the adjudication of that claim in a particular court. Whilst the relationship between immunity and impunity is therefore reasonably clear, that between immunity and jurisdiction is more difficult to state with accuracy. Two formulations are possible: first, immunity may be treated as an element in the definition of a specific jurisdiction omitting the person or act enjoying immunity from its ambit; or secondly, it may be treated as an exception to a predefined jurisdiction to adjudicate.
As a matter of logic the determination of jurisdiction precedes the consideration of immunity.39 As Judge Rezek in the Arrest Warrant case notes, immunity does not exist in abstract but is conditioned by the court before which it is invoked; thus an immunity pleadable before an internal domestic court may not be pleadable before the domestic court of another State or before an international tribunal.40 But whether it is merely an exception to jurisdiction or a principle of law in its own right, so forming part of, rather than an exception to, jurisdiction, remains uncertain. This basic difference of approach surfaces in the treatment of State immunity.
Thus, Brownlie formulated the plea of State immunity as an exception to national jurisdiction; he wrote in terms of a ‘licence’ by which ‘the agents of one State may enter the territory of another and there act in their official capacity’; the licence is terminable in respect of ‘activities which are in excess of the licence conferred or are otherwise in breach of international law’.41 This approach is also adopted by Dominicé. Introducing an account of the Swiss law of immunity, he writes ‘En vertu de l’immunité de juridiction, I’État étranger est exempté de la assujétissement au pouvoir des tribunaux et autres organes juridictionnels étatiques’. This notion of non-subjection of one State to the jurisdiction of another as the basis of State immunity is also to be found in the 8th edition of Oppenheim.42
State immunity described as a grant of a licence by the forum State is in line with national courts treating the conferment or declining of competence as a matter of the municipal law of the forum State, but it disguises the fact that the constraints on national courts derive from international law’s shared values and requirement of reciprocity.
The second view of immunity as a principle which is independent and which defines jurisdiction takes account of this requirement to comply with international law. It perceives the rule of immunity of a State as a rule of international law which is directly derived from the independence and equality of States. Thus its scope is only partially dependent on the consent of the territorial State. This approach is illustrated by the judgment of the French Cour de Cassation in Spanish Government v Casaux (Lambege and Pujot), where the court states that ‘the right of jurisdiction … arising out of its own orders is inherent in its sovereign authority and cannot be arrogated by another Government …’.43
Debate on this difference of viewpoint also arose in the formulation of a general principle of immunity by the ILC when preparing its articles on State immunity44 and is also reflected in the civil law’s distinction between incompétence d’attribution and immunité de juridiction. The municipal court first considers whether it has jurisdiction, and may treat the international personality of the State or the public nature of its activities as rendering it incompetent (incompétence d’attribution ratione personae or ratione materiae); alternatively, and the distinction is not always clearly drawn, a court may declare itself competent but then acknowledge an exception as regards a foreign State (immunité de juridiction).
This uncertainty as to the relationship between a plea of immunity by one State as opposed to the jurisdiction of the national court of another State is reflected in the inconsistent treatment of the jurisdictional links to the forum territory required for proceedings allowing exceptions to immunity provided in the UNCSI. See below under ‘Additional jurisdictional link in civil proceedings against a State’, and Chapter 9.
The ICJ has also addressed the relationship between immunity and jurisdiction in international law in three cases, in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Rwanda) Judgment of 2005, the Arrest Warrant of 11 April 2000, Judgment of 2002, and the Jurisdictional Immunities of States (Germany v Italy, Greece intervening) Judgment of 2012. In all three cases, however, the Court’s approach to that relationship has been predetermined by the dependency of its jurisdiction on the consent of the parties to the proceedings. In the Armed Activities judgment the Court accepted Rwanda’s exclusion of the compulsory dispute settlement clause in the Genocide Convention, declaring that ‘the fact that a rule has the status of jus cogens does not confer upon the Court a jurisdiction which it would not otherwise possess’.45 A strong Joint Separate Opinion of Judges Higgins, Kooijmans, Elaraby, Owada, and Simma stated:
It is a matter for serious concern that at the beginning of the twenty-first century it is still for States to choose whether they consent to the Court adjudicating claims that they have committed genocide. It must be regarded as a very grave matter that a State should be in a position to shield from international judicial scrutiny any claim that might be made against it concerning genocide (para 25).46
In the Arrest Warrant judgment the Court did not decide on the first issue of universal jurisdiction over foreign nationals for acts committed abroad: it was withdrawn by both parties, set aside by the majority of ten judges, either for reasons of policy, as applauded by Judge Oda in his dissent, or on account of the law on the issue being unripe or still open. Judges Higgins, Kooijmans, and Buergenthal in their Joint Separate Opinion were more positive: ‘We regret the suggestion that the battle against impunity is “made over” to international treaties and tribunals with national courts having no competence’ (para 51). They agreed that the notion of ‘immunity’ depends conceptually upon a pre-existing jurisdiction, and that a distinct corpus of law applied to each, but they disagreed with the Court in its giving the impression ‘that immunity is a free-standing topic of international law’. It is not. ‘Immunity’ and ‘jurisdiction’ are inextricably linked. Whether there is immunity in any given instance will depend not only upon the status of Mr Yerodia but also upon what type of jurisdiction, and on what basis, the Belgian authorities were seeking to assert it’.47
The Court’s judgment confined itself to the second issue of immunity declaring: ‘It should be noted that the rules governing the jurisdiction of national courts must be carefully distinguished from those governing jurisdictional immunities: jurisdiction does not imply absence of immunity, while absence of immunity does not imply jurisdiction’.
It was not until 2012 in the Jurisdictional Immunities judgment that the Court openly declared the totality of the exclusionary effect of immunity in respect of jurisdiction over substantive responsibility regardless of an admission by the defendant State of responsibility for a breach of international law, of the jus cogens nature of the impugned act, and of the absence of any alternative legal remedy. As the Court held in the earlier Order on Counter Claims, Germany had not consented to the Court’s jurisdiction with regard to this aspect of the Italian claim.48
In view of the limitation of the ICJ’s jurisdiction by the requirement of consent of all parties to the proceedings, the States themselves assume the role of monitors of each other’s compliance with international law.49 It would seem open for State practice, independently of the International Court, to develop its own accommodation of immunity to jurisdiction and to do so by taking into account the mutual obligations undertaken by the two States arising from treaty or international custom. Such an independent development would seem to find support in the dissent and uneasiness expressed by individual judges in all the three cases referred to above.
Taking the broader view, the Joint Separate Opinion in the Arrest Warrant case looks beyond the manner in which procedures of municipal law apply immunities required by international law to restrain a national court from assuming jurisdiction; it looks to the substantive rules of international law which formulate the limits of both jurisdiction and immunity. Even the ICJ in the Jurisdictional Immunities judgment declared that ‘the competing principle of territoriality of the forum state’ has also to be viewed alongside the principle of sovereign equality from which State immunity is derived and that ‘departures’ from the application of each of such principles might be required.
With regard to the exercise of jurisdiction over another State, a distinction has to be made in respect of civil and criminal jurisdiction. The principles of international law which have been discussed with regard to the four bases of jurisdiction are usually stated in relation to the exercise of criminal jurisdiction, that is the direct prosecution by the State authorities of a claim against an individual. Different principles relating to jurisdiction over the public acts of another entity are generally invoked where one State seeks to entertain proceedings against another State. In some respects any jurisdiction exercised in respect of another State imports the exercise of criminal jurisdiction, particularly with regard to enforcement of judgments; such elements of coercion bring into play principles of international law relating to the exercise of criminal law. Civil jurisdiction can thus in the last resort, and even with the special rules relating to satisfaction of judgments against State property introduced by the restrictive doctrine of immunity, be regarded as based on criminal jurisdiction.50 This aspect of jurisdiction is further examined below under the exercise of criminal jurisdiction.
In other respects, proceedings relating to the State’s activities in its own territory concern its reserved domain of domestic jurisdiction, one where it performs public acts as legislator and administrator for which international law requires respect and restraint. If the proceedings are thus treated as ultimately concerning a conflict of the jurisdiction to prescribe between the forum and the foreign State, the problem may be equated as the exercise of civil jurisdiction, governed by principles of conflict of laws, and treated as one of choice of forum and law and the application of the act of state doctrine and non-justiciability (see Chapter 3).51
Yet again, according to the restrictive doctrine of immunity, the State is made subject to municipal law by reason of its conducting a transaction in the same form and manner as a private individual. This would suggest that the principles of jurisdiction relating to civil proceedings are the relevant ones for application. The last approach seems to be the one generally adopted by courts in declaring immunity to be no bar to their jurisdiction.
There is, however, a surprising lack of certainty about the limitations which international law imposes on the exercise of jurisdiction by municipal courts in relation to civil proceedings; an uncertainty which exists with regard to the limits of civil jurisdiction over private parties, as well as over States.52 There is no general agreement as to the requirements of public international law with regard to the bases for the exercise of civil jurisdiction over private parties by States, although it seems likely that a court may not exercise jurisdiction where there is no significant connection with the forum;53 a presumption against extraterritoriality (pursuant to which domestic laws are assumed not to apply to conduct abroad) was endorsed by the US Supreme Court in the 2013 Kiobel decision.54
In most cases the allocation of civil jurisdiction is left largely to the parties by choice of forum clauses, the forum court law, and by reference to private international law rules. These vary from legal system to system, and although considerable efforts have been made to coordinate them by means of the 1968 Brussels and 1988 Lugano Conventions on Jurisdiction and Judgments,55 they are not universal and have proved difficult to apply in some respects. The failure of negotiations under the auspices of the Hague Conference on Private International Law for a universal draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters acceptable to both the US and the European States demonstrates the difficulties in reaching an agreement.
To bridge the gap between the negotiating parties tentative agreement was reached to adopt the US approach identifying approved bases of jurisdiction in the Convention as the ‘white’ list, prohibited bases as the ‘black’ list, and bases of jurisdiction that fall outside the Convention as the ‘grey’ list.56
But the rigid set of jurisdictional rules which the European States sought posed difficulties for US business interests requiring a more extensive reach for their national courts over transactions carried on abroad. As Mr Kovar, Assistant Legal Adviser to the State Department, explained in testimony to Congress in July 2000:
Because the due process clause puts limits on the extension of jurisdiction over defendants without substantial link to the forum, the United States is unable to accept certain grounds of jurisdiction as they are applied in Europe under the Brussels and Lugano Conventions. For example, we cannot consistent with the Constitution accept tort jurisdiction based on the place of injury or contract jurisdiction based solely on the place of performance stated in the contract. At the same time civil law attorneys and their clients are profoundly uncomfortable with jurisdiction based on doing business or minimum contacts, which they find vague and unpredictable.57
In 2001, it was decided to postpone work on the draft Convention.58 Work continued on specific issues, resulting in the 2005 Hague Choice of Court Agreements Convention, which applies in business-to-business cases. This Convention—even with its much more modest scope—has attracted only one ratification.59
The unsuccessful outcome of negotiations on the Hague Judgments Convention is not directly relevant to questions of exercise of jurisdiction by the national court of one State over another State as the draft Convention was expressly confined to civil and commercial matters between private parties, but its failure does indicate the difficulties in finding some universal common ground. There was, however, some tentative recognition that some assertions of jurisdiction are unacceptable.60
It is by no means certain that a national court’s exercise of civil jurisdiction in respect of proceedings where a foreign State is a party is governed by the same principles as those which operate between private litigants. Had a Hague Judgments Convention been adopted and specified certain jurisdictional links identified as acceptable criteria for allocation of jurisdiction in private party disputes, would it have worked for disputes between a State and a private party or been acceptable to States? Even if it be accepted that international law requires a jurisdictional link before a court may exercise jurisdiction in respect of a civil proceeding involving a private party, would it follow that similar jurisdictional links are required for civil proceedings against a foreign State? Or should they be stricter?61
State practice under the ECSI, the US and UK legislation, and the case law of civil law countries discloses no international consensus as to what jurisdictional connections additional to those applicable to proceedings between private parties are required to render lawful under international law the exercise of jurisdiction by the forum State over claims brought against a foreign State. Thus, the provisions relating to a requirement for a jurisdictional connection in respect of the national court of the State determining whether to accord immunity to a foreign State are variously treated in ECSI (see Chapter 5), as a nexus requirement in the US FSIA (see Chapter 8), and in most of the exceptions to immunity in the UK SIA but not in the exceptions relating to commercial transactions, arbitration agreements and seagoing ships used for commercial purposes (see Chapter 7).
The express inclusion of jurisdictional connections in both the ECSI and the FSIA may in part have been explained by reasons extraneous to the concept of immunity.Thus, the ECSI incorporates connecting links, for all the States Parties to the European Community and the 1962 Brussels Convention on Jurisdiction and Judgments, designed ‘to prevent proceedings being instituted against a State in the courts of another State where the dispute is not sufficiently closely related to the territory of the forum State to justify the exercise of jurisdiction by a court in that State’.62 In the ECSI these links were necessary to the Convention because it was designed as a component in a general scheme for the enforcement within the European Community of civil and commercial judgments against both private parties and sovereign States; proceedings coming within the exceptions required the satisfaction of the specified jurisdictional links in order to ensure that the jurisdiction of the forum court was properly established in giving the judgment with which the foreign State had undertaken to comply. Similarly, in legislating for the introduction of a restrictive doctrine of immunity in the US, the FSIA introduced jurisdictional requirements into the enacted exceptions to State immunity which were more rigorous than those required to confer jurisdiction on US courts in proceedings brought against foreign private parties. These nexus requirements have been the source of much litigation, particularly the three-limb requirements of the commercial transaction exception under section 1605(a)(2) (discussed in Chapter 8) and the plaintiff’s inability to comply with them frequently results in dismissal of his suit. With regard to the US law, as with the ECSI, there was a reason specific to US law. As Trooboff explains in an analysis of US case-law, given the breadth of jurisdiction permitted in respect of private party litigation applying the due process clause and ‘doing business’, a nexus test was needed to avoid having cases against foreign States brought in the US which would create significant controversy in view of foreign States’ attenuated relationship with the US.63
As will be discussed in Chapter 9, UNCSI is drafted broadly on the assumption that general matters relating to the exercise of jurisdiction in respect of a foreign State will be determined in accordance with the rules applicable to private parties, but then, as a result of discussions in the ILC, it largely followed the UK approach of providing additional jurisdictional requirements for the exceptions to State immunity, save for exceptions relating to commercial transactions, arbitration agreements, and seagoing ships used for commercial purposes.
This absence of international consensus as to what, if any, additional connection with the forum State court is required before it may disregard immunity of a foreign State suggests that, as with the exercise of civil jurisdiction over private parties, the minimum position prevails: a court may not exercise jurisdiction where there is no significant connection in respect of the subject matter of the proceedings or the defendant state within the forum.
Clearly, it is a task of the first importance for both public and private international lawyers to establish agreed bases for the exercise of jurisdiction and criteria as to which basis has primacy. Should a consensus finally emerge, the agreed bases of jurisdiction might of themselves serve as the filter and sorting device to ensure the proper adjudication of disputes brought against States. However, while such a competition of jurisdictions continues between States, State immunity, whether with or without its own special jurisdictional requirements, remains an indispensable legal technique to reduce and avoid conflict between States.
The exercise of criminal jurisdiction directly over another State infringes international law’s requirements of equality and non-intervention. To apply public law with penalties to another State contravenes international law in two ways. First, it seeks to make another State subject to penal codes based on moral guilt; and, secondly, it seeks to apply its criminal law to regulate the public governmental activity of the foreign State.
International law sets limits on the legislative jurisdiction of States. One of those limits seems to prevent the application of the penal code of one State to another State. If one defines criminal conduct as the contravention of the public law of the State, one immediately sees that the imposition of criminal liability would purport to extend the legislative jurisdiction of the territorial State on public law matters to the foreign State.64
Developments in the last 50 years or so in relation to civil proceedings from an absolute to a restrictive doctrine of State immunity left untouched the position in criminal proceedings.65 The increasing recognition of the international responsibility of States for the commission of international crimes by acts which are attributable to them has not so far led to any change in this position. However, in the same way as unwillingness to afford impunity for commission of international crimes by individuals is leading to the attenuation of their immunities in respect of acts performed by them on the State’s behalf, so it is possible to envisage that the recognition of a State’s responsibility at the international level may weaken the immunity which it currently enjoys in respect of such conduct in criminal proceedings in municipal courts.
UNCSI contains no express exclusion in respect of criminal proceedings (for an explanation of this position see Chapter 9). State immunity until the 1990s was universally considered as a procedural bar relevant to civil proceedings where, much more than in a criminal prosecution, there was equality of arms between applicant and respondent and hence, without international law’s requirement of immunity, a foreign State could be exposed to all the hazards of a local forum and litigious claimants. In common law countries, the rule which prohibits the bringing of criminal proceedings against a foreign State continues to be based on common law, not statute. Without exception, the legislation in common law countries introducing the restrictive approach of immunity in civil proceedings excludes its application to criminal proceedings. The UK SIA is expressly stated ‘not to apply to criminal proceedings’ (section 16(4)), an exclusion which is followed in the legislation of Singapore, Pakistan, South Africa, and Canada.66 The US FSIA expressly limits jurisdiction to ‘any non jury civil actions’.67
This absence of legislation in common law countries relating to criminal, as opposed to civil, proceedings does not, however, apply to diplomatic law where the international rule of immunity from criminal proceedings of the diplomat has been enacted into national legislation in both common and civil law countries.
The discussion of the exercise of criminal jurisdiction against a State must be preceded by the larger questions of whether States have the capacity in law to commit crimes and are answerable for criminal conduct. Further questions arise as to the attributability to the State of the acts of their officials or agents performed on behalf and/or on the orders of the State and the consequent answerability of State officials before municipal courts for such conduct. The general nature of imputability to the State of the acts of the official or agent is briefly mentioned here, while the extent of the consequent application of State immunity to the representatives of the State is examined in Part IV.
The position of the State with regard to the exercise of criminal jurisdiction goes well beyond immunity and involves wide-ranging issues relating to responsibility and attribution. Do wider considerations of international law and the nature of a sovereign State prohibit the application of criminal liability under municipal law? Whilst the rules of immunity are designed to prevent the application of municipal civil jurisdiction over the governmental acts of a foreign State,68 more fundamental objections based on the structure of the international community and the core purposes of international law may operate to exclude any move to a restrictive doctrine of immunity from criminal proceedings based on an analogy with civil proceedings. It would be wrong to assume that the rules relating to immunity are necessarily relevant to or decisive of these larger issues, a point stressed by the European Court of Justice in stating that the determination of the non-contractual liability of the Community for damage caused by its servants in the performance of its duties was not necessarily dependent on the characterization of an act as official for the purposes of immunity under the European Communities Protocol on Privileges and Immunities.69
International jurists have long discussed whether the State has capacity in international law to commit a crime and the nature of the sanctions for such conduct,70 (would they amount to anything more than a decision and adoption of measures by the UN Security Council under Chapter VII of the Charter?). In its 1998 Report on State Responsibility, the ILC noted that there was no consensus.71
The Special Rapporteur concluded that there was general agreement that ‘the law of international responsibility is neither civil nor criminal, and that it is purely and simply international’ and accordingly excised Article 19 establishing international crimes of a State from the 2000 Draft Articles on State responsibility, leaving only an Article spelling out the consequences of ‘serious breaches of obligations under peremptory norms of general international law’.72
In the Bosnia Genocide judgment, relying on the UN General Assembly Resolutions declaring that ‘genocide is an international crime entailing national and international responsibility on the part of individuals and States’ and its interpretation of the object and purpose of the Genocide Convention, the ICJ ruled that Article I of the Convention provided not only an obligation on Contracting States to prevent genocide but also a prohibition placed directly on them not to commit genocide.73 In the Court’s view:
It would be paradoxical if States were thus under an obligation to prevent, so far as within their power, commission of genocide by persons over whom they have a certain influence, but were not forbidden to commit such acts through their own organs, or persons over whom they have such firm control that their conduct is attributable to the State concerned under international law. In short, the obligation to prevent genocide necessarily implies the prohibition of the commission of genocide.74
The Court held that Article IX of the Convention, by referring to the responsibility of the Contracting States for genocide, confirmed the duality of this direct responsibility.75 It stated that ‘the responsibilities of States that would arise from breach of such obligations, are obligations and responsibilities under international law. They are not of a criminal nature’.76
This distinctive character of the international system of State responsibility is borne out by the reasoning of the ICTY Appeals Chamber in declaring that it had no authority to address a subpoena, in the sense of an order with the threat of a penalty for non-compliance, to a State or to a State official in his official capacity.77
International law has moved forward and now recognizes a capacity on the part of States to commit crimes attributable to them by the acts of their organs; it formulates this responsibility as a system of responsibility in international law, not as criminal liability, with that responsibility derived from obligations undertaken by States under international conventions or less certainly from customary international law. To what extent this system is exclusively one of restitution and reparation remains uncertain; certainly a punitive element can be seen to exist in the sanctions which under the UN Charter the Security Council may impose under Chapter VII upon a State without its consent. Unresolved is the question whether the recognition of international responsibility for the commission of certain crimes can in any way result in criminal liability being imposed upon one State in the municipal law and in the national courts of another State. Given the highly political consequences of any unilateral forcible action taken against another State, such a scenario seems highly unlikely. The commission of State crimes usually involves the defence, security, or police forces of a country, all of which fall within the exercise of sovereign authority and remain immune even under the restrictive doctrine. So the position remains that one State has no jurisdiction under international law to refer the question of the responsibility of another State for conduct of a criminal character to the decision of its courts. But it may be asked whether the adoption of a restrictive doctrine of immunity in any way changes that position.
The adoption of a restrictive doctrine has not been treated as having any relevance in relation to the Absolute Immunity of the foreign State from criminal proceedings: as discussed later in Chapters 7 and 8 both US and UK law have treated immunity of the State from criminal proceedings as more a matter of substantive incapacity and the inapplicability of the penal code of one State in respect of the acts of another State, rather than attributable to a procedural defect.78 A French court has held that a State agency exercising administrative duties is equally immune from criminal jurisdiction.79 Yet the essence of the restrictive doctrine is to treat a State which engages in commercial or private law matters as on the same footing as any other artificial person or corporation. This leads one to ask whether the nature of the criminal process is wholly determinative if and when its purpose is essentially to achieve the same goals as civil laws? Is the broad definition of criminal conduct as relating exclusively to matters de jure imperii workable today when much of criminal law is employed to ensure the observance of standards of health, safety, and other social concerns, matters in which the private litigant has as much to lose as the enforcing State? Further, if the source of the prohibition of the conduct is international law, and if the conduct qualifies by its nature as commercial or private law character, is there any obstacle to the exercise of local jurisdiction by way of criminal proceedings rather than civil process?
Although the widespread adoption of a restrictive doctrine of immunity in civil proceedings has not directly affected the position relating to criminal proceedings, it is to be noted that the subjection of foreign States to local courts’ jurisdiction in respect of transactions of a private law or commercial nature has been based on a general assumption of the applicability, subject to some modification, of municipal law to foreign States. To allow civil proceedings to be brought within the now acknowledged exceptions to immunity required acceptance by forum State courts that there was no juridical obstacle to holding liable the artificial person of a foreign State for activities de jure gestionis. In such proceedings the courts accepted that the foreign State was a legal person capable of liability under municipal law, that forum State provisions of private law were applicable to a foreign State, and consequently that a foreign State could be found to be in breach of civil law duties and awards of compensation made. In making such assumptions, certain restrictions based on respect for the equal and independent status of the foreign State were still observed. The remedies available in respect of such civil proceedings were restricted; thus the remedies of injunction prohibiting conduct or specific performance ordering conduct, which are usually available in civil proceedings, were excluded, as well as the imposition of any penalty. In effect, in adopting a restrictive approach municipal law imitated the international law of State responsibility by making the remedy one of reparation, not punishment.
These developments in civil jurisdiction might indirectly point the way, should occasion so require, to the fashioning of an exception to immunity from criminal proceedings. If the alleged act took place within the forum State’s territory,80 if the proceedings are based on infringements of a commercial or private law nature, and the infringements constitute municipal crimes but are capable of generating civil duties of reparation and the remedy is restricted to such reparation, is there any objection to introducing an exception to the immunity for the consequences of such crimes on the same lines as for civil proceedings? Of course, it might be said that, so limited, the proceedings would in essence be of a civil nature. Practically, civil proceedings may be equally, if not more, effective in providing a remedy. A judgment for damages by way of civil proceedings can broadly achieve reparation to the victim of a criminal act and there is a greater likelihood of a foreign State’s voluntary compliance with a civil judgment which has none of the moral obloquy of a criminal conviction and the imposition of a fine. One crucial area of distinction may relate to the possibility in criminal proceedings of confiscation or forfeiture of the proceeds of crime deposited by a foreign State in the forum State.81
The problems of application of municipal law distinctions to proceedings to which States are a party arises in other contexts and is discussed in this book in Chapter 3 under Non-justiciability and Chapter 13 as to whether administrative law issues can be brought within the commerciality or private law criterion of the restrictive doctrine. The distinctions which municipal law makes between different branches of law—criminal, civil and commercial, public and administrative constitutional—are not always readily applied to proceedings in which States are a party.
So far as the exercise of criminal jurisdiction against a State is concerned, our conclusion in this section is that, while it is highly improbable that municipal courts will directly prosecute foreign States for conduct which constitutes a crime under municipal law, it is to be expected that the application of the restrictive doctrine will permit claims for compensation where a foreign State has committed in the forum State or authorized the commission there of acts of a criminal nature.
As discussed above, no State may exercise the criminal jurisdiction of its courts over another State. State responsibility is the traditional method by which one State may seek reparation for the commission of acts of a criminal nature by another State. A consequence of this rule has been the non-answerability of the individual official who performed the act for which reparation is sought. This classic rule is under pressure from efforts to remove immunity in cases of grave violations of human rights, which are discussed briefly below and examined in Chapter 18. The ICJ carefully inserted a caveat in its Jurisdictional Immunities judgment that it was only addressing the immunity of the State and not the immunity from criminal proceedings of State officials.82
The classic rule was acknowledged in diplomatic exchanges between the UK and the US in Macleod’s case, which arose out of the seizure in 1837 of the American ship, the Caroline, which had been giving aid to Canadian rebels and attacking British ships, by a British force which sent the US ship over the Niagara Falls causing loss of life. The Law Officers stated their opinion that:
The principle of international law that an individual doing a hostile act authorized and ratified by the government of which he is a member cannot be held individually answerable as a private trespasser or malefactor but that the act becomes one for which the State to which he belongs is in such a case alone responsible is a principle too well established to be now controverted …
Mr Webster, the US representative, had confirmed in identical terms the above principle also adding:
[W]hether the process be criminal or civil, the fact of having acted under public authority and in obedience to the orders of lawful superiors, must be regarded as a valid defence, otherwise individuals would be held responsible for injuries resulting from the acts of government, and even from the operations of public war.83
This classic rule was applied largely unquestioned for the next 150 years or so and received confirmation in the Blaskic case ICTY Appeals Chamber, in its ruling that a subpoena could not be served on a State official:
The Appeals Chamber dismisses the possibility of the International Tribunal addressing subpoenas to State officials acting in their official capacity. ‘Such officials cannot suffer the consequence 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.” This is a well established rule of customary international law going back to the eighteenth and nineteenth centuries, restated many times since.’84
Although criminal prosecution was barred by immunity in the foreign State, the effect of this rule on the State official by no means left his acts without consequence. As acts of a governmental nature they fall within his home State’s jurisdiction. As such, they are not necessarily innocent: the home State may exercise disciplinary powers or prosecute him under home laws; or it may characterize the act as non-official or, acknowledging its official nature, waive any immunity and allow criminal proceedings to be brought against the official in the forum State’s courts. Finally, in the event of not adopting any of these courses, the home State may acknowledge that responsibility at international law, as a matter of State responsibility between the two States.
It was in respect of the extent of this responsibility and its consequence for the individual State wrongdoer’s criminal liability that change came about in the latter part of the twentieth century. Such change was brought sharply to the general public’s attention by the House of Lords’ decision in Pinochet in 1999. For further discussion on this case and its limited impact on the development of a human rights exception to immunity, see Chapter 18.
Although the condemnation of jus cogens violations is widespread, the jurisdiction to prosecute them in national courts is uncertain and dependent on other factors such as the jurisdictional connection of the act, or the individual offender or the victim with the prosecuting State and that State’s obligations to exercise extraterritorial jurisdiction where the alleged crime has been committed outside its territory.85
There is, however, a line of cases where State practice allows the territorial jurisdiction of the forum State to preempt the State immunity of the foreign State and allows prosecution despite the commission of the offending acts in the course of official functions where they are committed within the forum State’s territory without its consent. It has generally been accepted that in time of peace acts of espionage, sabotage, kidnapping committed by a State official in the territory of another State, without that State’s consent to the act or presence of the official, constitute a violation of international law and that the victim State is entitled in international law to prosecute the individual spies. The ILC’s Special Rapporteur, Kolodkin, in his Second Report acknowledges such an exception stating that ‘the question whether immunity ratione materiae is absent where a crime [by a foreign State official] is perpetrated in the territory of the State which exercises jurisdiction stands apart’; he refers to instances of espionage, acts of sabotage, kidnapping, and notes that ‘in judicial proceedings concerning cases of this kind, immunity has either been asserted but not accepted, nor even asserted’.86
The ILC Secretariat’s memorandum had suggested that in determining the loss of immunity in such cases ‘the crucial consideration would be whether or not the territorial State has consented to the discharge in its territory of official functions by a foreign State organ’.87 Whilst in respect of an official, even where the consent given is limited to the presence of such official in the territory of the forum State, Kolodkin would retain immunity ratione materiae as committed ‘in connexion with his official activity’ (hence supporting the UK’s action in expelling but not asserting criminal jurisdiction over a Libyan official in the shooting of PC Fletcher in 1984 from diplomatic premises). But in the situation where the accused official without the consent of the forum State is both present in that State’s territory and commits a serious criminal offence, Kolodkin would allow an exception, and further noted that any such exception might extend to one not necessarily amounting to a grave international crime.88 He was thus prepared, so far as the facts in the Greek and Italian cases of Distomo and Ferrini respectively concerned illegal activity within the territory of those countries, to treat them as coming within the exception and to deprive the German military officials of any immunity ratione materiae for such activity.89 Some support for such a territorial exception is found in the decision of an English court that the immunity ratione materiae of a senior security officer, Khurts Bat, of the Mongolian government provided no bar to the execution of a European arrest warrant requested by the federal German court in respect of the abduction and serious bodily injury of another Mongolian national committed by Mr Bat in France and Germany.90
The continuing tension in the law of State immunity is well described in the Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal who, after discerning a gradual movement towards bases of jurisdiction other than territoriality, continue:91
This slow but steady shifting to a more extensive application of extraterritorial jurisdiction by States reflects the emergence of values which enjoy an ever-increasing recognition in international society. One such value is the importance of the punishment of the perpetrators of international crimes …
Now it is generally recognized that in the case of such crimes, which are committed by high officials who make use of power invested in the State, immunity is never substantive and thus cannot exculpate the offender from personal responsibility. It has also given rise to a tendency, in the case of international crimes, to grant procedural immunity from jurisdiction only so long as the suspected State official is in office.