Abstract
The happiest outcomes of the work of the International Law Commission (ILC) result when those charged with reporting on a topic elucidate the existing law with maximum objectivity and accuracy and when, where desired, they formulate such possibilities for its avowed progressive development as find a solid basis in emerging practice or international jurisprudence and are unlikely to arouse implacable opposition among members of the Commission or member states of the General Assembly. This history should be foremost in the minds of those presently leading the Commission’s work on the immunity of state officials from foreign criminal jurisdiction as they come next session to report on possible limitations on and exceptions to such immunity. Whether the eventual aim is codification or reform, any consideration of this most controverted and combustible of contemporary questions of international law that is not based on an impartial and convincing assessment of relevant state practice and international case-law and that misreads the political temper of the times will end in tears, in the Commission itself and even more so in the Sixth Committee of the General Assembly.
Highlights
The happiest outcomes of the work of the International Law Commission (ILC) result when those charged with reporting on a topic elucidate the existing law with maximum objectivity and accuracy and when, where desired, they formulate such possibilities for its avowed progressive development as find a solid basis in emerging practice or international jurisprudence and are unlikely to arouse implacable opposition among members of the Commission or member states of the General Assembly
Focusing on alleged exceptions to the immunity of state officials from foreign criminal jurisdiction when the charges specify international crimes, it sets out some home truths of which serious account must be taken if the ILC’s work on the immunity of state officials from foreign criminal jurisdiction is to bear fruit
Vol 109 a serving minister for foreign affairs was said to benefit2—and, by parity of reasoning, that no exception existed in respect of any alleged international crime to any species of immunity ratione personae—has been welcomed by the overwhelming majority of governments, applied by a host of national courts, accepted by the bulk of the ILC when discussing the first special rapporteur’s conclusion to the same effect,[3] queried by less than a handful of delegations to the Sixth Committee in the same context, and considered “not disputed” by a PreTrial Chamber of the International Criminal Court.[4]
Summary
It is hard to see how a dispassionate, rigorous observer could genuinely believe that there currently exists under customary international law any form of “international crime” exception to the immunity, ratione personae or ratione materiae, from foreign criminal jurisdiction from which a state is entitled to see its serving and former officials benefit. As regards immunity ratione personae, the absence of any “international crime” exception is plain. The ICJ’s categorical ruling in Arrest Warrant of 11 April 2000 that no exception existed in respect of allegations of grave breaches of the Geneva Conventions and crimes against humanity to the immunity ratione personae from which
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