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Last update: January 19, 2018

Analytical Guide to the Work of the International Law Commission

Immunity of State officials from foreign criminal jurisdiction

See also: Summary | Texts and Instruments

Mandate

Studies undertaken by the Secretariat and Reports of the Secretary-General

  • 60th session of the International Law Commission (2008)
    • Memorandum prepared by the Secretariat

Reports of the Working Group or Sub-Committee

None

Reports of the Special Rapporteur

  • Preliminary report on immunity of State officials from foreign criminal jurisdiction. Discussion of the history of the consideration of the question of immunity of State officials from foreign jurisdiction by the International Law Commission and the Institute of International Law. Consideration of preliminary issues (sources, immunity and jurisdiction) as well as of issues to be considered in defining the scope (boundaries of the topic and persons covered).
    • Preliminary Report of the Special Rapporteur, Mr. Roman Anatolevich Kolodkin (60th session of the ILC (2008))
  • Consideration of the scope of immunity of a State official from foreign criminal jurisdiction, including immunity ratione materiae, ratione personae, acts of a State exercising jurisdiction which are precluded by the immunity of an official, territorial scope of immunity and possible exceptions to the rule on immunity.
    • Second Report of the Special Rapporteur, Mr. Roman Anatolevich Kolodkin (63rd session of the ILC (2011))
  • Consideration of the procedural aspects of the topic, as well as the relationship between a State’s argument that its official has immunity and the responsibility of that State for a wrongful act committed by that official which gives rise to the issue of immunity.
    • Third Report of the Special Rapporteur, Mr. Roman Anatolevich Kolodkin (63rd session of the ILC (2011))
  • Consideration of the topic during the quinquennium 2007–2011. Issues to be considered during the quinquennium: immunity ratione personae and immunity ratione materiae; the international responsibility of the State and the international responsibility of individuals: implications for immunity; immunity ratione personae; immunity ratione materiae; and procedural aspects of immunity.
    • Preliminary Report of the Special Rapporteur, Ms. Concepción Escobar Hernández (64th session of the ILC (2012))
  • Consideration of the scope of the topic, the concepts of immunity and jurisdiction, the distinction between immunity ratione personae and immunity ratione materiae, and discussion of the normative elements of immunity ratione personae. Proposals for draft articles 1 to 6.
    • Second Report of the Special Rapporteur, Ms. Concepción Escobar Hernández (65th session of the ILC (2013))
  • Consideration of the normative elements of immunity ratione materiae. Discussion of the concept of an "official", including for purposes of the draft articles, as well as of the subjective scope of immunity ratione materiae. Discussion of the future workplan.
    • Third Report of the Special Rapporteur, Ms. Concepción Escobar Hernández (66th session of the ILC (2014))
  • Consideration of the remaining aspects of the material scope of immunity ratione materiae, namely what constituted an “act performed in an official capacity”, and its temporal scope. Proposals for draft article 2, subparagraph (f), defining an “act performed in an official capacity” and draft article 6 on the scope of immunity ratione materiae.
    • Fourth Report of the Special Rapporteur, Ms. Concepción Escobar Hernández (67th session of the ILC (2015))
  • Analysis of the limitations and exceptions to the immunity of State officials from foreign criminal jurisdiction. Deals successively with the Commission’s consideration of the issue over the two quinquenniums during which it had been dealing with the topic (chapter I), the analysis of relevant practice (chapter II), some methodological and conceptual questions relating to limitations and exceptions (chapter III), and instances in which the immunity of State officials from foreign criminal jurisdiction did not apply (chapter IV). On the basis of this study, a draft article was proposed. The report also contained a reference to the future workplan (chapter V).
    • Fifth Report of the Special Rapporteur, Ms. Concepción Escobar Hernández (68th session of the ILC (2016))

Reports of the Drafting Committee

  • 65th session of the International Law Commission (2013)
    • Text of draft articles 1, 3 and 4 provisionally adopted by the Drafting Committee at the sixty-fifth session
    • Statement of the Chairman of the Drafting Committee
  • 66th session of the International Law Commission (2014)
    • Text of draft articles 2 (e) and 5 provisionally adopted by the Drafting Committee at the sixty-sixth session
    • Statement of the Chairman of the Drafting Committee
  • 67th session of the International Law Commission (2015)
    • Text of draft articles 2 (f) and 6 provisionally adopted by the Drafting Committee at the sixty-seventh session
    • Statement of the Chairman of the Drafting Committee
  • 69th session of the International Law Commission (2017)
    • Titles of Parts Two and Three, and texts and titles of draft article 7 and annex provisionally adopted by the Drafting Committee at the sixty-ninth session
    • Statement of the Chairman of the Drafting Committee

Comments by Governments

 
 
 
 

Other

None

Reports of the International Law Commission

  • Report of the International Law Commission on the work of its fifty-ninth session, 7 May to 5 June and 9 July to 10 August 2007
    • Decided to include the topic in its current programme of work and appointed Roman A. Kolodkin as Special Rapporteur.
    • Discussion in Plenary: 2940th meeting (20 July 2007)
  • ILC Report, A/62/10, 2007, chap. X.A.4, para.376
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/588)
  • Report of the International Law Commission on the work of its sixtieth session, 5 May to 6 June and 7 July to 8 August 2008
    • The Commission had before it the preliminary report of the Special Rapporteur (A/CN.4/601), as well as a memorandum of the Secretariat on the topic (A/CN.4/596).
    • Discussion in Plenary: 2982nd, 2983rd, 2984th, 2985th, 2986th, and 2987th meetings, from 22 to 25 and 29 to 30 July 2008
  • ILC Report, A/63/10, 2008, chap. X, paras. 265–311
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/606 and Add.1)
  • Report of the International Law Commission on the work of its sixty-first session, 4 May to 5 June and 6 July to 7 August 2009
    • The Commission did not consider the topic at the sixty-first session.
  • ILC Report, A/64/10, 2009, chap. V, paras. 205–207
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/620 and Add.1)
  • Report of the International Law Commission on the work of its sixty-second session, 3 May to 4 June and 5 July to 6 August 2010
    • The Commission was not in a position to consider the second report of the Special Rapporteur, which was submitted to the Secretariat.
  • ILC Report, A/65/10, 2010, chap. IX, paras. 341–343
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/638)
  • Report of the International Law Commission on the work of its sixty-third session, 26 April to 3 June and 4 July to 12 August 2011
    • The Commission had before it the second report of the Special Rapporteur (A/CN.4/631). The Commission considered the report at its 3086th, 3087th and 3088th meetings, on 10, 12 and 13 May, and at its 3111th and 3115th meetings, on 25 and 29 July 2011.
    • The Commission also had before it the third report of the Special Rapporteur (A/CN.4/646). The Commission considered the report at its 3111th, 3113th, 3114th and 3115th meetings, on 25, 27, 28 and 29 July 2011.
    • Discussion in Plenary: 3086th, 3087th and 3088th meetings (10, 12 and 13 May), 3111th, 3113th, 3114th and 3115th meetings (25, 27, 28 and 29 July 2011).
  • ILC Report, A/66/10, 2011, chap. VII, paras. 102–203
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/650 and Add.1)
  • Report of the International Law Commission on the work of its sixty-fourth session, 7 May to 1 June and 2 July to 3 August 2012
    • The Commission, at its 3132nd meeting, on 22 May 2012, appointed Ms. Concepción Escobar Hernández as Special Rapporteur to replace Mr. Roman Kolodkin, who was no longer a member of the Commission.
    • The Commission had before it the preliminary report of the Special Rapporteur (A/CN.4/654).
    • Discussion in Plenary: 3143rd, 3144th, 3145th, 3146th and 3147th meetings (10, 12, 13, 17 and 20 July 2012)
  • ILC Report, A/67/10, 2012, chap. VI, paras. 82–139
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/657)
  • Report of the International Law Commission on the work of its sixty-fifth session, 6 May to 7 June and 8 July to 9 August 2013
    • The Commission had before it the second report of the Special Rapporteur (A/CN.4/661), in which the Special Rapporteur built upon the methodological approaches and general workplan set out in the preliminary report (A/CN.4/654), taking into account the debates, in 2012, in the Commission and the Sixth Committee. The report considered: (a) the scope of the topic and of the draft articles; (b) the concepts of immunity and jurisdiction; (c) the difference between immunity ratione personae and immunity ratione materiae; and (d) the identification of the normative elements of the regime of immunity ratione personae. On the basis of the analysis, six draft articles were presented for the consideration of the Commission. These draft articles addressed the scope of the draft articles (draft article 1); immunities not included in the scope of the draft articles (draft article 2); definitions of criminal jurisdiction, immunity from foreign criminal jurisdiction, immunity ratione personae and immunity ratione materiae (draft article 3); the subjective scope of immunity ratione personae (draft article 4); the material scope of immunity ratione personae (draft article 5); and the temporal scope of immunity ratione personae (draft article 6).
    • Following its debate on the second report of the Special Rapporteur, the Commission, at its 3170th meeting on 24 May 2013, decided to refer the six draft articles contained therein to the Drafting Committee with the understanding that it would take into account the views expressed in the plenary debate.
    • At its 3174th meeting, on 7 June 2013, the Commission received the report of the Drafting Committee and provisionally adopted three draft articles.
    • At its 3193rd to 3196th meetings, on 6 and 7 August 2013, the Commission adopted the commentaries to the draft articles provisionally adopted at the session.
    • Discussion in Plenary: 3164th, 3165th, 3166th, 3167th, 3168th, 3170th and 3174th meetings, on 15 to 17, 21, 22, 24 May 2013 and 7 June, respectively.
  • ILC Report, A/68/10, 2013, chap. V, paras. 40–49
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/666)
  • Report of the International Law Commission on the work of its sixty-sixth session 5 May–6 June and 7 July–8 August 2014
    • The Commission had before it the third report of the Special Rapporteur (A/CN.4/673). Following its debate on the third report of the Special Rapporteur, the Commission, at its 3222nd meeting, on 11 July 2014, decided to refer the draft articles to the Drafting Committee. At its 3231st meeting, on 25 July 2014, the Commission received the report of the Drafting Committee and provisionally adopted draft articles 2 (e) and 5. At its 3240th to 3242nd meetings, on 6 and 7 August 2014, the Commission adopted the commentaries to the draft articles provisionally adopted at the session.
    • Discussion in Plenary: 3217th, 3218th, 3219th, 3220th, 3221st, and 3222nd meetings (7 to 11 July 2014), 3231st meeting (25 July 2014), and 3240th, 3241st, and 3242nd meetings (6 and 7 August 2014).
  • ILC Report, A/69/10, 2014, chap. IX, paras. 123–132
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/678)
  • Report of the International Law Commission on the work of its sixty-seventh session 4 May–5 June and 7 July–7 August 2015
    • The Commission had before it the fourth report of the Special Rapporteur (A/CN.4/686). Following its debate on the report, the Commission, at its 3278th meeting, on 24 July 2015, decided to refer draft articles draft article 2 (f) and draft Article 6 to the Drafting Committee. At its 3284th meeting, on 4 August 2015, the Commission received the report of the Drafting Committee draft Articles 2, subparagraph (f) and 6. At the same meeting, the Commission took note of the draft articles as presented by the Drafting Committee.
    • Discussion in Plenary: 3271st, 3272nd, 3273rd, 3274th, 3275th (16 to 24 July 2015), and 3284th (4 August 2015) meetings.
  • ILC Report, A/70/10, 2015, chap. X, paras. 171–243
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/689)
  • Report of the International Law Commission on the work of its sixty-eighth session, 2 May–10 June and 4 July–12 August 2016
    • The Commission had before it the fifth report of the Special Rapporteur analysing the question of limitations and exceptions to the immunity of State officials from foreign criminal jurisdiction (A/CN.4/701). The Commission considered the report at its 3328th to 3331st meetings, from 26 to 29 July 2016. At the time of its consideration, the report was available to the Commission only in two of the six official languages of the United Nations. Accordingly, the debate in the Commission was preliminary in nature, involving members wishing to speak on the topic, and would be continued at its sixty-ninth session. In such circumstances, it was understood that the consideration of the report at the session was exceptional and was not intended to set a precedent. The Commission underlined that the debate at the session was only the beginning of the debate and that the Commission would provide to the General Assembly a complete basis of its work on the report only after the debate was finalized at the sixty-ninth session.
    • At its 3329th meeting, on 27 July 2016, the Commission provisionally adopted draft articles 2, subparagraph (f), and 6, provisionally adopted by the Drafting Committee and taken note of by the Commission at its sixty-seventh session.
    • At its 3345th to 3346th meetings, on 11 August 2016, the Commission adopted the commentaries to the draft articles provisionally adopted at the session.
    • Discussion in Plenary: 3328th, 3329th, 3330th, 3331st (26 to 29 July 2016), 3345th and 3346th (11 August 2016) meetings.
  • ILC Report, A/71/10, 2016, chap. XI, paras. 190–250
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/703)
  • Report of the International Law Commission on the work of its sixty-ninth session, 1 May–2 June and 3 July–4 August 2017
    • The Commission had before it the fifth report of the Special Rapporteur (A/CN.4/701), which it had begun to debate at its sixty-eighth session.
    • At its sixty-eighth session, given that the report had not been available in all languages, the Commission underlined that the debate on the report would continue in order to be finalized at the present session. Accordingly, the Commission continued its debate on the fifth report at the sixty-ninth session at its 3360th to 3365th meetings, on 18, 19, 23, 24, 26 and 30 May 2017, respectively.
    • Following its debate on the report, the Commission, at its 3365th meeting, on 30 May 2017, decided to refer draft article 7, as contained in the Special Rapporteur’s fifth report, to the Drafting Committee, taking into account the debate in the Commission.
    • At its 3378th meeting, on 20 July 2017, the Commission considered the report of the Drafting Committee and provisionally adopted draft article 7 (see section C.1 below). Provisional adoption was by recorded vote, with 21 votes in favour, 8 votes against and 1 abstention. The members present voted as follows:
      • Mr. Carlos J. Argüello Gomez: Yes;
      • Mr. Yacouba Cissé: Yes;
      • Ms. Concepción Escobar Hernández: Yes;
      • Ms. Patrícia Galvão Teles: Yes;
      • Mr. Juan Manuel Gómez-Robledo: Yes;
      • Mr. Hussein A. Hassouna: Yes;
      • Mr. Mahmoud D. Hmoud: Yes;
      • Mr. Huikang Huang: No;
      • Mr. Charles Chernor Jalloh: Yes;
      • Mr. Roman A. Kolodkin: No;
      • Mr. Ahmed Laraba: No;
      • Ms. Marja Lehto: Yes;
      • Mr. Shinya Murase: Yes;
      • Mr. Sean D. Murphy: No;
      • Mr. Hong Thao Nguyen: Yes;
      • Mr. Georg Nolte: No;
      • Ms. Nilüfer Oral: Yes;
      • Mr. Hassan Ouazzani Chahdi: Yes;
      • Mr. Ki Gab Park: Yes;
      • Mr. Chris Maina Peter: Yes;
      • Mr. Ernest Petrič: No;
      • Mr. Aniruddha Rajput: No;
      • Mr. August Reinisch: Yes;
      • Mr. Juan José Ruda Santolaria: Yes;
      • Mr. Gilberto Vergne Saboia: Yes;
      • Mr. Pavel Šturma: Abstain;
      • Mr. Dire D. Tladi: Yes;
      • Mr. Eduardo Valencia-Ospina: Yes;
      • Mr. Marcelo Vázquez-Bermúdez: Yes;
      • Sir Michael Wood: No.
    • Explanations of vote before the vote were made by Mr. Roman A. Kolodkin, Mr. Sean D. Murphy, Sir Michael Wood, Mr. Huikang Huang, Mr. Aniruddha Rajput, Mr. Ernest Petrič, Mr. Juan Manuel Gómez-Robledo, Mr. Juan José Ruda Santolaria and Mr. Georg Nolte. Explanations of vote after the vote were made by Mr. Dire D. Tladi, Mr. Pavel Šturma, Mr. Mahmoud D. Hmoud, Mr. Charles Chernor Jalloh, Mr. Shinya Murase, Mr. Yacouba Cissé, Mr. Hussein A. Hassouna, Mr. Hassan Ouazzani Chahdi, Mr. Ki Gab Park, Ms. Concepción Escobar Hernández and Mr. Hong Thao Nguyen. Those explanations of vote were recorded in the summary record of the 3378th meeting.
    • At its 3387th to 3389th meetings, on 3 and 4 August 2017, the Commission adopted the commentaries to the draft article provisionally adopted at the present session.
    • Informal consultations on immunity of State officials from foreign criminal jurisdiction, conducted by the Special Rapporteur, were held on 18 July 2017. The informal consultations were open-ended and their aim was to exchange views and share ideas on the procedural aspects of immunity of State officials from foreign criminal jurisdiction, which will be the subject under consideration in the sixth report of the Special Rapporteur, to be submitted in 2018. The consultations were based on an informal concept paper on procedural provisions and safeguards prepared by the Special Rapporteur. At the 3378th meeting, on 20 July 2017, the Special Rapporteur informed the Commission on the development of the informal consultations.
    • Discussion in Plenary: 3360th, 3361st, 3362nd, 3363rd, 3364th, 3365th (18 to 30 May 2017), 3378th (20 July 2017), 3387th, 3388th and 3389th (3 and 4 August 2017) meetings.
  • ILC Report, A/72/10, 2017, chap. VII, paras. 68–141
  • See the website of the Sixth Committee of the General Assembly

General Assembly Action

  • Resolution 62/66 of 6 December 2007
    • Took note of the decision of the International Law Commission to include the topic in its programme of work.
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/588)
  • Resolution 66/98 of 9 December 2011
    • Invited the International Law Commission to continue to give priority to, and work towards the conclusion of the topic.
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/650 and Add.1)
  • Resolution 67/92 of 14 December 2012
    • Invited the International Law Commission to continue to give priority to the topic.
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/657)
  • Resolution 68/112 of 16 December 2013
    • Invited the International Law Commission to continue to give priority to the topic.
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/666)

Final Outcome

Work in progress