Abstract
In the summer of 2017, the UN International Law Commission adopted Draft Article 7 and an associated draft annex for its project on immunity of state officials from foreign criminal jurisdiction. The draft article identifies six “crimes under international law in respect of which immunity ratione materiae shall not apply”: genocide; crimes against humanity; war crimes; crime of apartheid; torture; and enforced disappearance. Given the divergences within the Commission when considering and adopting Draft Article 7 (as evidenced by the plenary debate in 2016 and 2017, the unusual recorded vote on whether to refer the matter to the Commission's drafting committee, and the Commentary), it is difficult to conclude that the Commission is expressing a view that Draft Article 7 reflects lex lata.
Highlights
In the summer of 2017, the UN International Law Commission adopted Draft Article 7 and an associated draft annex for its project on immunity of state officials from foreign criminal jurisdiction.[1]
With respect to genocide (Draft Article 7(1)(a)), the Commission’s Commentary and the Fifth Report cite to provisions in just six national laws that provide an exception for immunity ratione materiae in national criminal proceedings for this crime.[7]
The Commission’s Commentary and the Fifth Report cite to just one national court case[9] and no international court case supporting an exception to immunity ratione materiae in a national criminal proceeding for the crime of genocide
Summary
IMMUNITY RATIONE MATERIAE OF STATE OFFICIALS FROM FOREIGN CRIMINAL JURISDICTION: WHERE IS THE STATE PRACTICE IN SUPPORT OF EXCEPTIONS?. The lack of practice may be seen by scrutinizing the materials cited in the Commission’s commentary[4] and in the Fifth Report of the Special Rapporteur[5] that purportedly support each exception. This exercise is difficult because both the Commentary and the Fifth Report aggregate disparate practice into lengthy footnotes that are not targeted to the individual exceptions and that contain references to sources that are not directly germane to the issue at hand (such as citing to civil rather than criminal cases, or citing to national laws on immunity of foreign states rather than of foreign officials).[6]
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