Immunity and international crimes of state officials: the decision of Sassi and Benchellali of the ECHR and the ongoing debate

[Zoe Govoni has an MA in International Cooperation for Human Rights’ Protection (University of Bologna)]

introduction

With a decision of October 2024, the European Court of Human Rights added another relevant piece to the ongoing debate about the immunity of state officials. Special, Sassi and Benchellali against France dealt with the immunity of former American civil servants in criminal proceedings for allegations of torture in the Guantanamo Bay prison. The case enriches the case law of the EGMHR in relation Jus Cogens Standards.

The discussion about such exceptions must be analyzed in this matter against the background of the efforts of the International Law Commission (ILC). The ILC continues to work on a series of articles on the immunity of state civil servants from foreign criminal jurisdiction, including Article 7, which has special importance because it does not apply to international crimes – including torture – for functional immunity from abroad.

By analyzing the EGRRHR decision and other relevant case law and an assessment of the ILC efforts, the present work will try to determine Ratione material In the event of allegations of serious crimes under international law can exist.

Sassi and Benchellali against France and Egmr's position on immunity

Sassi and Benchellali are two French citizens who asked the investigation and persecution of US civil servant-different rankings. The case was initially rejected for reasons of immunity of the officials Ratione materialWith the decision of the French court that the state's actions in question to implement the US terrorism control policy, acted and thus protected by sovereign immunity (paragraph 25). The applicants brought the case to the ECHR and claimed that the immunity granted by the French authorities had violated their right to access to the judiciary in accordance with Article 6 (1) of the ECHR.

The decision made by the European Court reflects the ICJ's approach Germany v. Italy (2012) and remains in accordance with the case law of ECRHR in cases where there is a concern Jus Cogens Violations. Based on the ICJ, the ECHR confirmed that the immunity could not be used without the absence of a contract or a crystallized usual rule that such an exception was based. Under previous ECHR cases with similar problems, Al-Adsani against the United Kingdom (2001) and Jones and others against the United Kingdom (2014). Both cases dealt with accusations of the torture and the highlighting of the nuclear importance of the Jus Cogens The prohibition of this crime found that there was no exception to functional immunity. However, Al-Adsani And Jones With immunity against legal disputes against foreign civil servants -namely in connection with lawsuits who are looking for allowance, the other way around Sassi and Benchellali the question of immunity in criminal proceedings.

A recent and relevant development in the area of ​​criminal law responsibility is Mm v. Francealbeit with restrictions. MM, an Egyptian citizen, submitted a criminal complaint against President Al-Sisi in France after being seriously injured during a protest against that of an Egyptian army officer Putsch d'état from 2013 in Cairo. The French judge rejected it to open an investigation of the alleged actions and acts of barbarism -by using the international legal principle of the immunity of the heads of state. The ECHR, the decision of April 2024, confirmed its inadmissibility when the alleged actions outside the France acted territorial courisdiction. The ECHR also repeated absolute immunity (Ratione personae) Grant the meeting heads.

Although Mm v. France Primarily affected personal immunity-a comprehensive sign for the so-called Troika (Head of state, government director and foreign minister) -The functional immunity in paragraphs 86 and 87 was also addressed. The court decided that despite the severity of torture break, no international legal instrument signaled an exception to immunity Ratione material. In Sassi and BenchellaliThe ECHR described its decision as a development – although it probably only as confirmation – of its attitude in Mm v. France.

The ILC design Article 7: still far from the common law

As explained above, the ILC articles on the immunity of state civil servants from foreign criminal jurisdiction and the work of the ILC are generally of crucial importance in order to identify changes in usual international law. Remarkably, the design Article 7 already mentioned recognizes an exception to the functional immunity of state officials in international crimes. However, the underlying rational and the way in which it was assumed has increased doubts and opened an ongoing discussion.

Some scientists argue that the supposed “recognizable trend” of conditions that restrict the applicability of immunity Ratione material In cases in which international crimes are involved, which represent a new rule to justify the assumption of the Design Article 7 and more of a top-down attempt by the ILC. Instead of reflecting a real displacement of the habit law, this approach would be based on stretched analogies that overlook the variations in state practice, which makes the draft of Article 7 more of a case Lex Ferenda – Progressive development of international law. Other, including former ILC members, have questioned the existence of state practice and Opinio juris This could be a trend that determines such exceptions from functional immunity.

The ECHR has reproduced the previous view Sassi and Benchellali against FranceAnd explains that the design Article 7 does not reflect an existing rule of international law (para. 61) and thus doubts the existence of the “recognizable trend” identified by the ILC and recognizes that the article is at best. Lex Ferenda. However, the court left the possibility that such an exception could occur in the future (paragraph 53).

Another skepticism results from the way the design of Article 7 was designed. The ILC was clearly influenced by the long and different comments of the states in relation to the matter. The twenty-ear and twenty result vote for eight against and a distance-sketches the divisions within the ILC itself on this topic.

Taken together, these factors illustrate the ongoing debate about the existence of a usual exception to functional immunity and underline the need for a further examination of both state practice and the system Opinio juris in this developing area of ​​international law.

Closing comments

The decision of the ECHR in Sassi and Benchellali against France Bot an insight into the current state of international law with regard to immunity doctrine and its relationship with international crimes. The decision reaffirmed that a law Jus Cogens An exception to functional immunity does not exist, and that the draft of Article 7 of ILC about the immunity of state civil servants from foreign criminal jurisdiction does not yet reflect habitual law.

In accordance with previous decisions, including Germany v. ItalyPresent Al-Adsani against UKPresent Jones v. UKAnd Mm v. Franceand after the evaluation of the design Article 7, the ECHR repeated this despite the Jus Cogens Prohibition of crimes like torture, no “recognizable trend” in state practice and Opinio juris it turned out to support exceptions from immunity Ratione material. According to the position of the court, the draft Article 7 seems to remain more likely, for the time being, progressive development of international law (Lex Ferenda). The continued uncertainty in relation to this topic, reinforced by the relevant voice of the ECHR in the Sassi and Benchellali Fall does not reject the possibility of the future development of such a rule. The unresolved debate about the existence of exceptions to the functional immunity of state officials against international crimes requires continuing the examination of state practice. Opinio jurisAnd the role of international dishes in the design of the development of the immunity rule.