Abstract
The International Law Commision's (ILC's) work on Immunity of State officials from Criminal Jurisdiction, which started ten years ago, has generated over time high expectations. In light of progress in international criminal law, the ILC is expected to strike a reasonable balance between the protection of sovereign equality and the fight against impunity in case of international crimes. It requires the Commission to determine whether or not immunity from criminal jurisdiction applies or should apply when international crimes are at stake. At its 2017 session, the ILC eventually adopted Draft Article 7 on this issue, which proved quite controversial and did not meet states’ approval. The purpose of this essay is to shed some light on the main shortcomings of this provision and to identify possible alternatives that could permit the ILC to overcome the deadlock concerning its adoption.
Highlights
The International Law Commision’s (ILC’s) work on Immunity of State officials from Criminal Jurisdiction, which started ten years ago, has generated over time high expectations
Ambiguities and Deficiencies of Draft Article 7 In August 2017, the ILC adopted Draft Article 7, according to which “Immunity ratione materiae from the exercise of foreign criminal jurisdiction shall not apply in respect of the following crimes under international law: (a) crimes of genocide; (b) crimes against humanity; (c) war crimes; (d) crime of apartheid; (e) torture; (f) enforced disappearance.”[1]. The Commission did not achieve a consensus on that provision
It took two quite unprecedented decisions: First, it resorted to a vote to decide whether or not the debate in the Plenary should be closed and Draft Article 7 as proposed by the Special Rapporteur should be referred to the Drafting Committee.[2]
Summary
The International Law Commision’s (ILC’s) work on Immunity of State officials from Criminal Jurisdiction, which started ten years ago, has generated over time high expectations. In August 2017, the ILC adopted Draft Article 7, according to which “Immunity ratione materiae from the exercise of foreign criminal jurisdiction shall not apply in respect of the following crimes under international law: (a) crimes of genocide; (b) crimes against humanity; (c) war crimes; (d) crime of apartheid; (e) torture; (f) enforced disappearance.”[1] The Commission did not achieve a consensus on that provision. For the analogy to be relevant, it has to be comprehensive, i.e., it should imply that exceptions to immunity are admissible before domestic courts only insofar as they are accompanied with corresponding procedural safeguards such as the principle of
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