Provisional Adoption of Draft Article 7 of the International Law Commission Articles on Immunity for Foreign Officials and Its Implications
Data publikacji: 14 gru 2023
Zakres stron: -
DOI: https://doi.org/10.2478/wrlae-2023-0001
Słowa kluczowe
© 2023 Lucas Da Costa Pereira Fontoura, published by Sciendo
This work is licensed under the Creative Commons Attribution 4.0 International License.
The International Law Commission (ILC) has studied the topic of immunity of State officials from foreign criminal jurisdiction since 2008, and to this day, it has not yet concluded the ‘Draft Articles on immunity of State officials from foreign criminal jurisdiction’
ILC, ‘Texts and titles of the draft articles adopted by the Drafting Committee on first reading’ (2022) A/CN.4/L.969 (hereinafter Draft Articles)
Such exceptions to this immunity have been inserted into Draft Article 7, provisionally adopted by the ILC in 2017. It was done by a recorded vote
ILC, ‘Report of the International Law Commission on the work of its 69th session’ (1 May–2 June and 3 July–4 August 2017) UN Doc A/72/10 ILC, ‘Report of the International Law Commission on the work of its 72nd session’ (26 April–4 June and 5 July–6 August 2021) UN Doc A/76/10, 100
One such difference is whether the result of the work on the topic should become a treaty or whether it should be concluded as draft articles. Additionally, it is not clear—and the reports of the special rapporteur are silent on the matter—whether Draft Article 7 constitutes
Therefore, this study aims at analysing the creation and provisional adoption of Draft Article 7, and possible implications that it may have in light of the sometimes harsh criticisms that have been made against it
See, for instance, Matthias Forteau, ‘Immunities and International Crimes before the ILC: Looking for Innovative Solutions’ (2018) 112 AJIL Unbound 22 < See Section III for further discussion on the topic.
In this sense, the first chapter of the analysis focuses on the current law as it is—a very short summary of the features of immunity that are widely accepted as being customary law. The second chapter of this article will focus on the work of the ILC and its criticisms, focusing mostly on exceptions to immunity
While some rules connected to immunity for foreign officials are disputed, it seems more difficult to challenge those rules that have acquired broader acceptance. This article intends to quickly summarise such rules, taking the difference between the two types of immunity as a starting point.
Indeed, the International Law Commission has made it clear that foreign officials enjoy two types of immunity, one which is attached to them during their term of office, called immunity ILC, ‘Eighth report on immunity of State officials from foreign criminal jurisdiction by Special Rapporteur Concepción E. Hernández’ (2020) A/CN.4/739, 20; see also ILC, ‘Texts and titles of the draft articles adopted by the Drafting Committee on first reading’ (2022) A/CN.4/L.969 draft art 4(1) ILC, ‘Eighth report (…)’ (n 6), 21; see also ILC, ‘Texts and titles of the draft articles (…)’ (n 6) draft art 6 (2) Pierre D’Argent, ‘Immunity of State officials and obligation to prosecute’ in A Peters and others (eds),
The first type of immunity, also called ‘personal immunity’, is attached only to a very limited range of people, including the Head of State, Head of Government, and the Minister for Foreign Affairs
Arrest Warrant of 11 April 2000 ( Pierre d’Argent (n 8) 245 Vienna Convention on Diplomatic Relations (adopted 18 April 1961, entered into force 24 April 1964) 500 UNTS 95, art. 31(1) Vienna Convention on Special Missions (adopted 24 April 1963, entered into force 19 March 1967) 596 UNTS 261, art 31 (1–2)
Although the international community has reached a high degree of consensus on this topic, as reflected by Draft Article 3
‘Draft Articles’, Draft Article 3: Persons enjoying immunity Colin Warbrick, ‘Immunity and international crimes in English law’ [2004] 53 ICLQ 769 As in the judgment of General Shaul Mofaz, transcribed by Colin Walbrick (n 14) Dapo Akande and Sangeeta Shah, ‘Immunities of State officials, international crimes, and foreign domestic courts [2010] 21 EJIL 815, 825 Head of Government, Head of State and Minister for Foreign Affairs
As for the acts protected by such immunity, it can be said that all acts performed before or during the term of office are covered
Pierre d’Argent [n 8], 245 ‘Arrest Warrant Case’ 22
Although this type of immunity is very broad, it is not applicable in at least three different circumstances. The first of them is when the State waives the immunity of its official
Malcolm N Shaw, Pierre d’Argent [n 8], 247 By virtue of Article 27 (2) of the Rome Statute, which expressly denies immunity before the International Criminal Court. See Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3.
The second type of immunity exists from the moment the official formally engages in the activities of the role and subsists indefinitely—it is the immunity
In contrast with the previous form of immunity, this type of immunity does not cease to exist when the persons involved have left their posts; however, it attaches only to acts performed in an official capacity
Elizabeth H Franey, ‘Immunity from the criminal jurisdiction of national courts’ in A Orakhelashvili (ed), Pierre D’Argent (n 8), 248. For an opposing view, see Micaela Frulli, ‘On the existence of a customary rule granting functional immunity to State officials and its exceptions: back to square one’ 26 DJC&IL 479 <
In regard to which officials are covered by immunity Pierre D’Argent (n 8), 248. This has encountered some criticism from scholars, for example by Micaela Frulli (n 26) ILC, ‘Report of the International Law Commission on the work of its 43rd session’ (29 April–19 July 1991) UN Doc A/46/10, 22–23
Procedurally, it is not clear whether the immunity has to be invoked by the State or not, with existing practice going in both ways. In this sense, the International Court of Justice has noted that a State is ‘expected to notify the authorities of the other State’ when one of its nationals under trial enjoys immunity
Certain Questions of Mutual Assistance in Criminal Matters ( Claus Kress, ‘Functional immunity of foreign State officials before national courts: A legal opinion by Germany’s federal public prosecutor general’ (2021) 19 JICJ 697
Similarly to immunity ILC, ‘Preliminary report on immunity of State officials from foreign criminal jurisdiction by Special Rapporteur Roman A. Kolodkin’ (2008) A/CN.4/601, 42 Pierre d’Argent (n 8), 249
Among the different doctrines that discuss exceptions to immunity, it seems that currently the discussion on possible exceptions to immunity has been narrowed down to international crimes, which is exactly the content of Draft Article 7 of the ILC’s Draft Articles on the topic. The case law diverges in this sense, with some judgments accepting the existence of exceptions
‘Arrest Warrant case’; Pourvoi n° 20–80.511, Decision of the Criminal Chamber, French Cour de Cassation, 13 January 2021 See text connected with footnotes 44–46
The topic of immunity from foreign criminal jurisdiction, as seen in the first chapter, brings some disagreements in key topics, such as which officials enjoy immunity
Having these considerations in mind, Roman Kolodkin has proposed that the topic be studied within the International Law Commission, arguing that this institution could contribute to the discussion by means of codification and progressive development of the matter
ILC, ‘Report of the International Law Commission on the work of its 58th session’ (1 May–9 June and 3 July–11 August 2006) UN Doc A/61/10
The first three reports dealt with the definition and sources of immunity, that is, who can enjoy it, procedural aspects, the difference between immunity ILC, ‘Preliminary report on immunity of State officials from foreign criminal jurisdiction by Special Rapporteur Roman A. Kolodkin’ (2008) A/CN.4/601; ILC, ‘Second report on immunity of State officials from foreign criminal jurisdiction by Special Rapporteur Roman A. Kolodkin’ (2010) A/CN.4/631; ILC, ‘Third report on immunity of State officials from foreign criminal jurisdiction by Special Rapporteur Roman A. Kolodkin’ (2011) A/CN.4/646 ILC, ‘Preliminary report on immunity of State officials from foreign criminal jurisdiction by Special Rapporteur Concepción E. Hernández’ (2012) A/CN.4/654, 51 ILC, ‘Eighth report on immunity of State officials from foreign criminal jurisdiction by Special Rapporteur Concepción E. Hernández’ (2020) A/CN.4/739
Despite this adoption of the Draft Articles, the ILC does not know whether these Draft Articles are going to be concluded as such, or whether the document will become a treaty
ILC, ‘Report of the International Law Commission on the work of its 72nd session’ (26 April–4 June and 5 July–6 August 2021) UN Doc A/76/10, 102 ILC, ‘Eighth report (…)’ (n 39), 10 See also the criticism of Germany’s federal public prosecutor general, who regretted that the Commission did not clearly indicate the status of Draft Article 7 – whether it is
All of these criticisms have been discussed within the International Law Commission itself, and it is worth mentioning particularly the sixty-ninth session, in 2017, where the members provisionally adopted the controversial Draft Article 7 in a recorded vote
ILC, ‘Report of the International Law Commission on the work of its 69th session’ (1 May–2 June and 3 July–4 August 2017) UN Doc A/72/10
The positions of the members of the ILC are divided among those who believe that an international crimes exception is already a rule of customary international law, those who deny it, and those who recognize this exception as progressive development. Ultimately, the main disagreement is related to the analysis of the practice leading to the conclusion of the special rapporteur.
The members that have criticized the analysis of the practice did so by arguing that, firstly, there is not enough practice to support such an exception or that the Fifth Report ignored practice in the contrary or even that some of the cases mentioned dealt with civil jurisdiction, not criminal
ILC, ‘Report (…) of its 69th session’ (n 43), 168–169. It was also mentioned that the Special Rapporteur failed to analyse the fundaments for upholding or dismissing immunity, which they argue is a flaw. ILC, ‘Report (…) of its 69th session’ (n 43), 169 Matthias Forteau, ‘Immunities and International Crimes before the ILC: Looking for Innovative Solutions’ (2018) 112 AJIL Unbound 22 <
Whilst admitting the existence of the above criticisms and difficulties to her proposition, Ms. Escobar Hernández maintains her view in support of the adoption of Draft Article 7, arguing that the low number of cases is intrinsically connected with the nature of each of the cases, that is, international crimes, and that the disagreement of a certain region (i.e. Africa) does not hamper the creation of a rule of customary law
ILC, ‘Fifth report on immunity of State officials from foreign criminal jurisdiction by Special Rapporteur Concepción E. Hernández’ (2016) A/CN.4/701, 77–78 ILC, ‘Fifth report’ (n 47), 77
That said, she insists that it is undeniable that a clear trend in favour of such exceptions exists, at the very least
ILC, ‘Fifth report’ (n 47), 78 ILC, ‘Report (…) of its 69th session’ (n 43), 164. ILC, ‘Fifth report’ (n 47), 74–78.
As argued here, this is a controversial and problematic affirmation.
First, it is problematic because of the lack of definition on the final form of the Draft Articles—whether they are going to be adopted as such or as a new treaty. Despite the words of the Special Rapporteur herself, in the reports submitted to the ILC, States and members of the Commission believe that the discussions about the Draft Articles depend on the final form that the project will take
Sean Murphy, ‘Crimes against humanity and other topics: The sixty-ninth session of the International Law Commission’ (2017) 111 AJIL 970, 986. Similarly, Estonia has defended that: “We would like to echo the view expressed by a number of members of the Commission that a dispute settlement clause would only be relevant if the draft articles were intended to become a treaty”—Permanent Mission of Estonia to the UN, ‘Statement by Estonia at 76th UNGA Sixth Committee Report of the International Law Commission Cluster II’ (29 October 2021) <
As already noted, however, the members of the ILC disagree on the matter, with some members saying that their work is not the project of a treaty, whereas others claim that the approach of adopting a new treaty should not be discarded
ILC, ‘Report (…) of its 69th session’ (n 43), 169–170 ILC, ‘Report (…) of its 72nd session’ (n 40), 105 ILC, ‘Report (…) of its 72nd session’ (n 40), 100
Moreover, these and other divergences among the members of the commission make it controversial to affirm the customary nature of Draft Article 7. But more than the internal discussions, briefly mentioned above, both State practice and Additionally, Germany’s federal public prosecutor general has defended the nonexistence of a rule of customary international law conferring immunity
When it comes to Matthias Forteau (n 46), 23 Hu Ren and Zhaoxin Jin, ‘The limitations and exceptions to immunity of States officials from foreign criminal jurisdiction: On ILC Draft Article 7’ (2021) 12 BLR 287, 289
Admittedly, there are some newer examples of cases which denied immunity in cases of suspects accused of war crimes. Recently, the German Federal Court of Justice has rendered a judgment
Urteil 3 StR 564/19, German Bundesgerichtshof, January 28, 2021 Claus Kress, ‘On functional immunity of foreign officials and crimes under International Law’ (Just Security, 31 March 2021) < Leila Sadat, ‘New developments in State practice on immunity of State officials for international crimes’ (ASIL Insights, 23 September 2021) <
All in all, this is not to say that there is no clear trend in favour of this rule, or that such a rule is not advisable. Rather, it seemed that the provisional adoption, had it not been done in a rush, i.e., without discussing further the antagonistic views, would likely not have brought such criticisms towards the mandate of the ILC, as was well said by the German delegation within the UNGA’s Sixth Committee
UNGA Sixth Committee (69th Session) ‘Summary record of the 24th meeting’ (30 November 2017) UN Doc A/C.6/72/SR.24, 92–93
The current international law of immunities has been explained in the second section, and the conclusion that, in the current status, there are no exceptions to immunity
As such, two possible problems were seen as the result of said provisional adoption. First, national judges—without the resources of international law knowledge—have applied Draft Article 7 as hard law, either by truly believing it is customary international law, or by using it as an excuse to achieve political goals through judicial activism. Second, another problem that is a consequence of the first, is that states would be internationally responsible for the acts of its national courts, which disregard the obligation to respect the immunity which is attached to a foreign State official.
The following expands on the reasoning behind the identification of these problems:
An essential preliminary question is whether domestic courts apply international law, although this does not seem to be very controversial. As explained by Escobar Hernández herself, ‘the decisions of national courts are based on the conviction that they are acting pursuant to international law and not in exercise of an absolute discretion’
ILC, ‘Fifth report on immunity of State officials from foreign criminal jurisdiction by Special Rapporteur Concepción E. Hernández’ (2016) A/CN.4/701, 86 Lady Hazel Fox, ‘Les droits fondamentaux de la personne face aux immunités de juridiction du droit international’ (2009) 73 AIDI, 36
Therefore, when asked to judge the immunity of a foreign state official, a national court can use the draft articles on immunity drawn up by the ILC as its According to Germany’s Federal Public Prosecutor, ‘Since then, various national authorities have considerably increased activities to investigate and prosecute crimes under international law, especially committed by Syrian government officials in Syria’ – Peter Frank and Christoph Barthe, ‘Immunity of Foreign State Officials Before National Courts’ (2021) 19 JICJ 700, 729–730. It is not clear, though, whether the increase in the amount of prosecution of foreign officials is connected with the provisional adoption of Draft Article 7 of the ILC.
While it is true that this would not be a relevant problem if the Draft Articles were read together with the discussions within the Commission, this is unlikely to happen. Moreover, ‘even if they did so, the position of the members is not always explicated and is at times hard to grasp’
Rosanne van Alebeek, ‘The ‘International Crime’ Exception in the ILC Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction: Two Steps Back?’ (2018) 112 AJIL Unbound 27 < Matthias Forteau, ‘Immunities and International Crimes before the ILC: Looking for Innovative Solutions’ (2018) 112 AJIL Unbound 22 < Matthias Forteau (n 67), 25
It is also possible that this lack of clarity is the purpose of the International Law Commission (at least of those members who voted for the provisional adoption of Draft Article 7). Since the special rapporteur and some other members believe that the provision on exceptions to immunity Sean Murphy, ‘Crimes against humanity and other topics: The sixty-ninth session of the International Law Commission’ (2017) 111 AJIL 970, 16–17 Sean Murphy (n 69), 16
It is indeed possible that such judgments consistent with Draft Article 7 would create a more favourable atmosphere for recognising it as customary law, if they were widespread and representative, which partially confirms Murphy’s fear.
Stemming from the first problem, a second negative consequence of the adoption of Draft Article 7 is that national courts, if they apply the rule of exceptions to immunity in the ILC project, would be violating the obligation to respect the immunity of foreign state officials. Therefore, because such an obligation is governed by international law
ILC, ‘Preliminary report on immunity of State officials from foreign criminal jurisdiction by Special Rapporteur Roman A. Kolodkin’ (2008) A/CN.4/601 ILC, ‘Report of the International Law Commission on the work of its 53rd session’ (23 April–1 June and 2 July–10 August 2001) UN Doc A/56/10
This responsibility, which is the consequence of a violation of an international obligation, can occur in at least two different ways.
First, the possibility exists that a national court, unaware of the fact that customary international law does not accept exceptions
According to the hypothesis proposed in this article. Arrest Warrant of 11 April 2000 (
The second consequence happens when national courts act in ILC, ‘Report of the International Law Commission on the work of its 69th session’ (1 May–2 June and 3 July–4 August 2017) UN Doc A/72/10, 183 ILC, ‘Report (…) of its 69th session’ (n 75), 170
Aware of this possibility, the ILC has adopted Draft Article 14 (3), which deals with procedural safeguards specific to Draft Article 7, bringing new conditions to apply to the latter. Interestingly, it brings a requirement of a formal nature, namely that the determination of immunity must be done by an ‘appropriately high-level’ authority, and of a material nature, so that the exceptions to immunity ILC, ‘Statement of the Chairperson of the Drafting Committee’ (3 June 2022) < ILC, ‘Eighth report on immunity of State officials from foreign criminal jurisdiction by Special Rapporteur Concepción E. Hernández’ (2020) A/CN.4/739, 10
Whether in good faith or in bad faith, the practical result of such prosecution is that foreign State agents would be brought to trial for criminal acts. In other words, it would mean a ‘return to normality’ of territorial sovereignty, according to which each State has jurisdiction over the acts and persons present in its territory
Pierre D’Argent, ‘Immunity of State officials and obligation to prosecute’ in A Peters and others (eds), ILC, ‘Report (…) of its 69th session’ (n 75), 170. Xiu-Mei Wang, ‘The immunity of State officials from foreign criminal jurisdiction’ (2010) 4 JXJU (Social Sciences Edition) 67
As stated by the International Court of Justice, immunity was conceived not only to allow the exercise of official functions
‘Arrest Warrant Case’, 22 Jurisdictional Immunities (n 74), 28 ILC, ‘Report of the International Law Commission on the work of its 58th session’ (1 May–9 June and 3 July–11 August 2006) UN Doc A/61/10, 436 ILC, ‘Fifth report’ (n 63), 9
While it is true that the disrespect of immunities may indeed deteriorate the friendly relations between States, it seems too far-fetched to say that the same result would be achieved if, in the future, Draft Article 7 of the ILC’s project reflects a customary law. The problem is not the criminal prosecution of foreign State agents accused of committing serious crimes, as long as it is not carried out contrary to international law. But as of the present moment, because its customary status is at least debatable, the use of these exceptions as a political tool, at the convenience of the national government, is concerning
Hu Ren and Zhaoxin Jin, ‘The limitations and exceptions to immunity of States officials from foreign criminal jurisdiction: On ILC Draft Article 7’ (2021) 12 BLR 287, 303
It is a valid concern, on the other hand, that the recognition of criminal immunity could lead to impunity, although this is not necessarily the case. Some situations, such as in the case of the State waiving of its official’s immunity or prosecuting them within their own national courts, are legal alternatives that would not lead to impunity. Moreover, even if a State is unwilling to prosecute their high-ranking officers for political reasons, there still could be a gross change in the political situation that would lead to prosecution of such officers.
Admittedly, some situations would indeed lead to impunity if some officers enjoy immunity for criminal proceedings; however, States should be more aware of pushing this rule on exceptions to immunity beyond State practice. It is not a surprise that the United States, Russia, and China have been cautious in recognizing this possibility, because they know that prosecuting foreign State agents means also that their own agents will probably be prosecuted by foreign national courts
As stated by Saliba and Lima, ‘[i]n a legal framework governed by the logic of reciprocity, guaranteeing immunity is also making sure that your own immunity will be guaranteed’ – Aziz T Saliba and Lucas C Lima, ‘The law of State immunity before the Brazilian Supreme Court: What is at stake with the “Changri-La” case?’ (2021) 18 RDI 52, 56
Immunity is currently one of the topics that has been drawing attention from many practitioners, States and scholars. As mentioned above, this can be explained by the sensitivity of the topic, since it affects one of the pillars of the modern international law, i.e., sovereignty.
Nonetheless, it is possible to find some rules that are widely accepted. For example, it is well known that immunity
The Special Rapporteur to the topic of immunities within the International Law Commission has proposed a Draft Article which accepts the existence of such exceptions. While this has gained support of some members and by some States who reacted to it, others have criticised it, mostly attacking the lack of a consistent and uniform practice, and the lack of a clear indication of whether the exceptions listed constitute customary law or progressive development. Moreover, the project is still under discussion, and it is not certain whether this will take the form of a treaty or remain in the form of draft articles. Recently, there are new examples of cases for and against the existence of exceptions to immunity
Be that as it may, analysing the reaction of States, the criticism of ILC members, and the reasoning of the Special Rapporteur, the six crimes listed in Draft Article 7 do not constitute true exceptions for applying immunity from foreign criminal jurisdiction of State agents under the rules of customary international law. And if this is so, then its application becomes problematic, as it may result in a breach of an international obligation of the State to respect the immunity of foreign State agents, and consequently States, would be internationally responsible for this sort of breach.
Finally, if indeed national courts have been applying this provision under the impression that it is a binding rule, then the International Law Commission could have contributed to a deterioration of friendly relations between States, while doing so in the name of the fight against impunity. Following this possibility, Kolodkin’s objective would not have been achieved.