- Ankit Malhotra
How to Lay a Case against Immunity
It is not an exaggeration to consider jurisdiction as one of the important paradigms of legal scholarship and practical discussion. In domestic courts, the aforementioned term denotes the right of exercising legal action. In international relations, Majid Khadduri romanticizes states' interaction. R.P.Anand notes that it is incorrect to assume that international law has developed only during the last four or five hundred years and only in Europe, or that Christian civilization has enjoyed a monopoly in regard to prescription of rules to govern inter-state conduct. Anand further quotes, Majid Khadduri, “in each civilization the population tended to develop within itself a community of political entities of a ‘family of nations’ whose interrelationships were regulated by a set of customary rules and practices, rather than being a single nation governed by a single authority and a single system of law. Several families of nations existed or coexisted in areas such as the ancient Near East, Greece, and Rome, China, Islam, and Western Christendom, where at least one distinct civilization had developed in each of them. Within each civilization a body of principles and rules developed for regulating the conduct of states with one another in peace and warí.”
In other words, he compartmentalizes international relations as an interaction between families of nations whose interrelationships were regulated by a set of customary rules and practices. He underscores this by highlighting several 'families of nations' that have existed or coexisted in areas such as the ancient Near East, China, Islam, and Western Christendom. Positive state actions enabling interactions of its actors have become an increasingly common practice in the 21st Century. However, with positive enforcement, a responsibility to prosecute germinates. To do so, the discourse around jurisdiction in international law is enshrined in the Charter of the United Nations. It can also be weaponized for the sole purpose of laying a case against immunity.
Member of the Permanent Court of Arbitration and sole arbitrator, Max Huber deconstructs sovereignty in the Palmas Island case.[i]He observes and highlights the sovereignty and interdependence of nations. Sovereignty or independence of nations, according to Huber, in practicing international relations is the right to exercise therein, to the exclusion of any other State, the functions of a State. The development of the national organization 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 regarding its territory in such a way as there are many cases in which states have claimed the right to their law enforcement abroad. But non-consensual acts do gather attention. Those such as the kidnapping of the Nazi criminal Eichmann in Argentina by Israel in 1960 or the sinking of Rainbow Warrior by French agents in a New Zealand harbor remain long-lasting in memory and discourse. So, how does one lay a case against immunity? Conjure or establish jurisdiction. The following trinity of principles highlights how.
Every state claims jurisdiction over crimes committed in its territory, even by aliens. Sometimes a criminal act may begin in one state and be completed in another: for instance, the killing of person A by person B who is across the frontier. In such circumstances both states have jurisdiction. The state where the act commenced has jurisdiction under the subjective territorial principle, and the state where the act is completed has jurisdiction under the objective territorial principle. This is also known as the 'effects doctrine’.
Whether a person has the nationality of a particular state is determined by the municipal law of that state. International law only lays down certain limits for states to prescribe which criteria are relevant for nationality. However, ‘nationality of claims’ is established in customary international law. In the Panevezys-Saldutiskis Railway case[ii] (concerning a claim for compensation for the expropriation of a railway company filed by Estonia against Lithuania in 1937), the Permanent Court of International Justice held that "in taking up the case of one of its nationals...a State is, in reality, asserting its right...This right is necessarily limited to intervention on behalf of its nationals because, in the absence of a special agreement, it is the bond of nationality between the State and the individual which alone confers upon the State the right of diplomatic protection”.
Thus, as a sub-section under the nationality principle, the active nationality principle (based on the nationality of the suspect) enables states to prosecute their nationals for crimes committed anywhere in the world. Warranting jurisdiction based on the nationality of the suspect “as a mark of allegiance and an aspect of sovereignty, is also recognized as a basis for jurisdiction over extra-territorial acts” which violate the forum state’s ordinary criminal law. Jurisdiction based on the nationality of the suspect is included in many treaties providing for the repression of crimes of international concern. It is also one of the bases of extraterritorial jurisdiction in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
This practice is universally accepted. Here things get complicated as some states claim criminal jurisdiction also based on the passive nationality principle to try an alien for crimes committed abroad affecting one of their nationals. Recent developments in the United States have come to terms with the other sub-section, the passive nationality principle.
Due to its overarching nature, it can result in an individual being punished elsewhere for an act that was lawful under the law of the place where it was committed. The universality principle is less objectionable when it is applied to acts that are regarded as crimes in all countries. In other words, international law allows states to exercise universal jurisdiction over certain acts which threaten the international community. These include war crimes, piracy, hijacking, and various forms of international terrorism. One can also read into this the 1973 International Convention on the Suppression and Punishment of the Crime of ‘Apartheid' or 1984Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment.
The concept of universal jurisdiction in its broad sense of the power of a state to punish certain crimes, wherever and by whomsoever, they have been committed, without any required connection to territory, nationality, or special state interest. Reference is specially made to the 1949 Geneva Conventions and the obligations of state parties to punish persons guilty of war crimes and crimes against humanity. The aforementioned crimes are a violation of international law, directly punishable under international law itself (and thus universal crimes).
Sovereign/ state immunity is now enshrined in the annals of customary international law due to its longevity and acceptance by states. The legal concepts enshrined ensure that sovereign state cannot be sued before the courts of another sovereign state without its consent. In other words, a sovereign state is exempt from the jurisdiction of foreign national courts. Granting this understanding furthers the argument to suggest that immunity also overrides jurisdiction. Since only when the court already has jurisdiction will it become meaningful to speak of immunity or exemption from it. Historically, as this note has shown, the words “exterritoriality” and “extraterritoriality” of crimes and other acts of aggression were highlighted. The current law of state immunity has developed predominantly as a result of cases decided by national courts in legal proceedings against foreign states. As far as possible, the leading cases in the field must be introduced first, so as to provide a first-hand view of the law and to place the relevant doctrinal debate in its proper context.
[i] The Island of Palmas Case (Scott, Hague Court Reports 2d 83 (1932), (Perm. Ct. Arb. 1928), 2 U.N. Rep. Intl. Arb. Awards 829) [ii] Panevezys-Saldutiskis Railway (Est. v. Lith.), 1938 P.C.I.J. (ser. A/B) No. 76 (Feb. 28)
Ankit Malhotra is reading Law at Jindal Global University and has a Bachelor of Arts Degree in International Affairs. He is also the President and co-founder of the Jindal Society of International Law.
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