Summaries of the Work of the International Law Commission
Immunity of State officials from foreign criminal jurisdiction
At its fifty-eighth session, in 2006, the Commission, on the basis of the recommendation of a Working Group on the long-term programme of work, identified the topic “Immunity of State officials from foreign criminal jurisdiction” for inclusion in its long-term programme of work.1
The General Assembly, in resolution 61/34 of 12 December 2000, took note of the Commission’s decision to include the topic in its long-term programme of work.
The General Assembly, in resolution 62/66 of 6 December 2007, took note of the Commission’s decision to include the topic in its programme of work.
At the sixtieth session, in 2008, the Commission had before it the preliminary report of the Special Rapporteur3 as well as a memorandum of the Secretariat on the topic.4 The preliminary report briefly outlined the breadth of prior consideration, by the Commission and the Institute of International Law, of the question of immunity of State officials from foreign jurisdiction as well as the range and scope of issues proposed for consideration by the Commission, in addition to possible formulation of future instruments. The Commission held a debate on the basis of this report which covered key legal questions to be considered when defining the scope of the topic, including the officials to be covered, the nature of acts to be covered and the question of possible exceptions.5
The Commission did not consider the topic at the sixty-first session.
At the sixty-third session in 2011, the Commission considered the second7 and third reports8 of the Special Rapporteur. The second report reviewed and presented the substantive issues concerning and implicated by the scope of immunity of a State official from foreign criminal jurisdiction, while the third report addressed the procedural aspects, focusing, in particular on questions concerning the timing of consideration of immunity, its invocation and waiver. The debate revolved around, inter alia, issues relating to methodology, possible exceptions to immunity and questions of procedure.9
At the sixty-fourth session in 2012, the Commission 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.10
At the sixty-fifth session in 2013, the Commission had before it the second report of the Special Rapporteur11, in which, inter alia, six draft articles were presented, following an analysis of: (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) identified the basic norms comprising the regime of immunity ratione personae. Following the debate in plenary, the Commission decided to refer the six draft articles to the Drafting Committee. Upon consideration of the report of the Drafting Committee, the Commission provisionally adopted draft articles1, 3 and 4.
At the sixty-sixth session in 2014, the Commission had before it the third report of the Special Rapporteur,12 in which the Special Rapporteur undertook an analysis of the normative elements of immunity ratione materiae, focusing on those aspects related to the subjective element. In that context, the general concept of a “State official” was examined in the report, and the substantive criteria that could be used to identify such persons were considered, especially in respect of those who may enjoy immunity ratione materiae from foreign criminal jurisdiction. The report further considered a linguistic point concerning the choice of the most suitable term for designating persons who enjoy immunity, given the terminological difficulties posed by the term " official” and its equivalents in the various languages, and suggested instead that “organ” be employed. Following an analysis of relevant national and international judicial practice, treaty practice and the previous work of the Commission, the Special Rapporteur proposed two draft articles relating to the general concept of “an official” for the purposes of the draft articles and the subjective scope of immunity ratione materiae. It was envisaged that the material and temporal scope of immunity ratione materiae would be the subject of consideration in the Special Rapporteur’s next report. The Commission decided to refer the draft articles to the Drafting Committee, and subsequently provisionally adopted draft articles 2 (e) and 5 on the basis of the report of the Drafting Committee, and commentaries thereto.
At the sixty-seventh session in 2015, the Commission had before it the fourth report of the Special Rapporteur,13 which was devoted to the 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. The report contained 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. The Commission decided to refer the two draft articles to the Drafting Committee, and subsequently took note of draft articles 2, subparagraph (f), and 6, provisionally adopted by the Drafting Committee.
At its sixty-eighth session, in 2016, the Commission had before it the fifth report of the Special Rapporteur14 analysing the question of limitations and exceptions to the immunity of State officials from foreign criminal jurisdiction. As at the time of its consideration the report was available to the Commission in only two of the six official languages of the United Nations, the Commission commenced the debate on the report on a preliminary and exceptional basis. The Commission decided to continue and finalize the debate at its sixty-ninth session.15
Also at its sixty-eighth session, the Commission provisionally adopted draft articles 2 (f) and 6, together with commentaries thereto, which had been provisionally adopted by the Drafting Committee and taken note of by the Commission at its sixty-seventh session.16
The work of the Commission on the topic as described above has been proceeding in accordance with the resolutions adopted by the General Assembly under the item relating to the report of the International Law Commission.17
1 See Official Records of the General Assembly, Sixty-first Session, Supplement No. 10 (A/61/10), para. 257. For the syllabus on the topic, see ibid., annex C.
2 See Official Records of the General Assembly, Sixty-second Session, Supplement No. 10 (A/62/10), para. 375.
3 See document A/CN.4/601.
5 See Official Records of the General Assembly, Sixty-third Session, Supplement No. 10 (A/63/10), paras. 267–311.
6 See Official Records of the General Assembly, Sixty-fifth Session, Supplement No. 10 (A/65/10), para. 343.
7 See document A/CN.4/631.
8 See document A/CN.4/646.
9 See Official Records of the General Assembly, Sixty-sixth session, Supplement No. 10 (A/66/10), paras. 104–203.
10 See document A/CN.4/654.
11 See document A/CN.4/661.
12 See document A/CN.4/673.
13 See document A/CN.4/686.
14 See document A/CN.4/701.
15 Official Records of the General Assembly, Seventy-first Session, Supplement No. 10 (A/71/10), para. 193.
17 General Assembly resolution 63/123 of 11 December 2008; 64/114 of 16 December 2009; 65/26 of 6 December 2010; 66/98 of 9 December 2011; 67/92 of 14 December 2012; 68/112 of 16 December 2013; 69/118 of 10 December 2014; 70/236 of 23 December 2015; and 71/140 of 13 December 2016.