The Sixth Committee – an intergovernmental committee that considers legal questions in the United Nations General Assembly – finished late last month its consideration of a draft article that asserts State officials do not have immunity from the prosecution of crimes of genocide, crimes against humanity, war crimes, crimes of apartheid, torture, and enforced disappearance in a foreign criminal jurisdiction; the debate arose from a draft article from the International Law Commission (ILC), a group of international legal experts who prepare draft conventions and codify existing rules of international law. The ILC will put forth the draft article as a recognition of existing State practice or as a proposal for a future international convention. See ILC, About the Commission. [UN Press Release: Debate Ends] The Sixth Committee debated the contents of the ILC’s most recent report released during its 69th Session, which included the ILC’s draft of its provisionally adopted Article 7 on international crimes for which immunity from rationae materiae jurisdiction (subject matter jurisdiction) does not apply. See International Law Commission, Report of the International Law Commission at its sixty-ninth session, UN Doc. A/72/10, 4 August 2017, para. 140.
The draft of Article 7 originated from the report of a special rapporteur – a member of the ILC – appointed to address the issue of State officials’ immunity. Some ILC members expressed disagreement with the special rapporteur’s position that States’ practice supports the finding of exceptions to State officials’ immunity – the substance of Article 7. The ILC provisionally adopted the text with only 21 of the 34 members voting in favor of it. [UN Press Release: Immunity] The Sixth Committee’s two-day discussion on the draft law mirrored many of the arguments that were debated within the ILC before its provisional adoption of Article 7, namely whether the basis for the Article is supported by customary international law, whether procedural requirements may address impunity, the balance between prosecution of State officials and State sovereignty, and the ILC’s view of Article 7’s function as either the codification of existing law or the development of law. See Report of the International Law Commission, at VII.C., 180–183. [UN Press Release: Immunity]
ILC Debate on Article 7
The ILC’s report from its 69th Session recorded the members’ debates on the draft text of Article 7 and on the arguments made by the special rapporteur in her fifth report from which the draft text originated. See International Law Commission, Fifth report on impunity of State officials from foreign criminal jursidiction, by Concepción Escobar Hernández, UN Doc. A/CN.4/701, 14 June 2016; Report of the International Law Commission, paras. 71-139. The members of the ILC debated whether Article 7 represents current State practice, whether procedural requirements could control for impunity without Article 7, and the effect Article 7 has on the respect of State sovereignty. See Report of the International Law Commission, paras. 71-139. Additionally, the members disagreed over whether Article 7 is meant to be a progressive development of the law or a codification of existing international law. See id. at para. 102. Some members argued that the ILC should focus exclusively on clarifying the scope of existing law. See id. The ILC’s report notes that Article 7 may be used as a set of guidelines, which would guide existing domestic practice of international criminal prosecutions. See id.
Customary International Law
In finding that customary international law – a source of international law developed and solidified through State practice – establishes exceptions to State officials’ immunity for certain international crimes, the special rapporteur drew a distinction between immunity under rationae personae jurisdiction (personal jurisdiction) and immunity under rationae materiae jurisdiction (subject matter jurisdiction). See Report of the International Law Commission, at para. 83. Immunity rationae personae grants immunity from criminal liability to certain officials based on their status or title, such as a head of State, for example. Immunity rationae materiae is the “residual immunity” for those individuals whose term has ended, granting them immunity from criminal liability for official acts that took place during the official’s term. See id. at 178. Although the special rapporteur did not find that a clear customary rule existed that would allow exceptions to State officials’ immunity from foreign criminal jurisdiction based on immunity rationae pesonae, she found that there was a trend allowing exceptions to immunity ratione materiae for the enumerated crimes in draft Article 7 because those crimes do not constitute “official acts,” are grave crimes, and undermine the principles of the international community. See id. at para. 83.
Some members of the ILC took the view that State practice has not clearly demonstrated a trend towards applying these exceptions. See id. at 182–183. The special rapporteur, in response, highlighted the distinction between immunity rationae personae and immunity raionae materiae, noting that the available case law focused mostly on the former, which is not covered by Article 7. See id. at para. 132.
Procedural Aspect of Immunity
ILC members who agreed with the special rapporteur on procedural issues concluded that procedural barriers of immunity are related to substantive outcomes, such as impunity of officials for grave breaches of international law. Impunity, they argued, should not be the result of a procedural barrier. See id. at para. 114. Other members argued that new procedural requirements could ensure accountability without Article 7. If States were required, they argued, to explicitly invoke immunity, the State would have to recognize the official’s acts as its own, opening it up to liability at the national or international levels. Alternatively, the State could be required to either waive immunity or prosecute. See id. at para. 112. Other members, however, argued that closing the accountability gap through procedural requirements would negatively affect the development of individual responsibility in international law. See id. at para. 113.
International Legal System
The special rapporteur and other members of the ILC discussed the balance that must be struck between respecting State sovereignty and ensuring that State officials do not face impunity for certain international crimes. See id. at para. 107. Other members, however, expressed concerns that foreign domestic court prosecutions against State officials may be politically motivated, which could lead to instability in international relations. See id. at para. 108. Still, members countered that the concern of impunity must be reconciled with State sovereignty, emphasizing that officials should not be able to go unpunished simply by asserting the protection of State sovereignty. See id. at para. 109.
Background on the ILC’s Consideration of State Officials’ Immunity
The ILC’s programme of work for its 69th Session, held from May 1 to June 2 and July 2 to August 4, 2017, included the issue of “immunity of State officials from foreign criminal jurisdiction.” See Report of the International Law Commission, para. 68. However, the ILC first took up the issue of “Immunity of State officials from foreign criminal jurisdiction” in 2007, and appointed Roman A. Kolodin as special rapporteur. See id. Kolodin issued three reports on the subject between 2008 and 2011. See id. In 2012, Concepción Escobar Hernández replaced Kolodin as Special Rapporteur, and issued five reports on the subject. See id. at para. 70. During its 69th Session, the Commission adopted six draft articles from her reports on the issue, including Article 7. See id.
The ILC was established in 1947 by the General Assembly pursuant to Article 13(1)(a) of the Charter of the United Nations to “initiate studies and make recommendations for the purpose of encouraging the progressive development of international law and its codification.” See International Law Commission, Home. According to the Statute of the International Law Commission, the General Assembly elects the members of the ILC of which there are 34.
The Sixth Committee considers legal questions before the UN General Assembly. All UN Member States are entitled to have representation on the Sixth Committee. See United Nations General Assembly, Sixth Committee.
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