Summaries of the Work of the International Law Commission
Immunity of State officials from foreign criminal jurisdiction
See also: Analytical Guide | Texts and Instruments
At its fifty-eighth session, in 2006, the Commission, on the basis of a recommendation of the 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 A syllabus describing the possible overall structure of, and approach to, the topic was annexed to that year’s report of the Commission.2
The General Assembly, in resolution 61/34 of 12 December 2006, took note of the Commission’s decision to include the topic in its long-term programme of work.
At its fifty-ninth session, in 2007, the Commission decided to include the topic in its programme of work and appointed Roman A. Kolodkin as Special Rapporteur for the topic.3
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 a preliminary report by the Special Rapporteur4 as well as a memorandum by the Secretariat on the topic.5 The preliminary report briefly outlined the breadth of prior consideration, by the Commission and by 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. On the basis of this report, the Commission held a debate which addressed key legal questions such as the sources of immunity, the notions of jurisdiction and of immunity, the rationales for immunity, the types of immunity, the persons covered by immunity and the question of possible exceptions to immunity.6
The Commission did not consider the topic at the sixty-first and sixty-second sessions, in 2009 and 2010.
In resolution 65/26 of 6 December 2010, the General Assembly invited the Commission to give priority, inter alia, to its consideration of this topic.
At its 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 State officials from foreign criminal jurisdiction, while the third report addressed the procedural aspects, focusing, in particular, on questions relating to the timing of consideration of immunity, as well as its invocation and waiver. The debate revolved around, inter alia, issues relating to methodology, possible exceptions to immunity and questions of procedure.9
In resolution 66/98 of 9 December 2011, the General Assembly invited the Commission to continue to give priority to, and work towards the conclusion of, inter alia, this topic.
At the sixty-fourth session in 2012, the Commission appointed Concepción Escobar Hernández as Special Rapporteur to replace 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 its sixty-fifth session in 2013, the Commission had before it the second report of the Special Rapporteur,11 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) the basic norms comprising the regime of immunity ratione personae. The Commission referred the six draft articles to the Drafting Committee, as contained in the second report.12 Upon consideration of the report of the Drafting Committee, the Commission provisionally adopted draft articles 1, 3 and 4, together with commentaries thereto.13
At its sixty-sixth session in 2014, the Commission had before it the third report of the Special Rapporteur,14 focusing on the normative elements of immunity ratione materiae and those aspects related to the subjective element. 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 related to immunity ratione materiae.15 The Commission referred 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.16
At the sixty-seventh session in 2015, the Commission had before it the fourth report of the Special Rapporteur,17 which was devoted to the consideration of the material and temporal scope of immunity ratione materiae. The report contained proposals for draft articles 2 (f) and 6. The Commission decided to refer the two draft articles to the Drafting Committee, and subsequently took note of draft articles 2 (f) and 6, provisionally adopted by the Drafting Committee.18
At its sixty-eighth session, in 2016, the Commission had before it the fifth report of the Special Rapporteur19 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.20
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.21
At its sixty-ninth session, in 2017, the Commission continued its consideration of the fifth report of the Special Rapporteur. Following the plenary debate, the Commission referred draft article 7, as proposed by the Special Rapporteur in her fifth report, to the Drafting Committee. Upon consideration of the report of the Drafting Committee, the Commission voted to adopt draft article 7, an annex to the draft articles and a footnote to two of its headings, together with commentaries thereto.22
At its seventieth session, in 2018, the Commission had before it the sixth report of the Special Rapporteur,23 which was devoted to addressing procedural aspects of immunity from foreign criminal jurisdiction. The Commission only held a partial debate on the sixth report, which was to be completed at the seventy-first session in 2019.24
At its seventy-first session, in 2019, the Commission had before it the sixth report, on which debate had not been completed at the seventieth session, and the seventh report of the Special Rapporteur.25 The seventh report completed the examination of the procedural aspects of immunity from foreign criminal jurisdiction and contained proposals for nine draft articles concerning the consideration of immunity by the forum State, determination of immunity, invocation of immunity, waiver of immunity, procedural safeguards related to the State of the forum and the State of the official, communication between the forum State and the State of the official, including the duty to notify to the official’s State the intent to exercise jurisdiction by the forum State, exchange of information between the State of the official and the forum State, cooperation and international legal assistance between the State of the official and the forum State, in particular the transfer of criminal proceedings from the forum State to the State of the official, and the procedural rights of the official, focusing on fair treatment. The Commission decided to refer the nine draft articles to the Drafting Committee and subsequently took note of draft article 8 ante, provisionally adopted by the Drafting Committee.26
At its seventy-second session, in 2021, the Commission had before it the eighth report of the Special Rapporteur,27 which examined the relationship between the immunity of State officials from foreign criminal jurisdiction and international criminal tribunals, considered a mechanism for the settlement of disputes between the forum State and the State of the official and considered the issue of good practices that could help to solve the problems that arise in practice in the process of determining and applying immunity. The report contained proposals for draft articles 17 and 18. The Commission decided to refer the two draft articles to the Drafting Committee, and subsequently provisionally adopted draft articles 8 ante, 8, 9 10, 11 and 12, on the basis of the report of Drafting Committee, and commentaries thereto.28
At its seventy-third session, in 2022, the Drafting Committee continued its consideration of the remaining draft articles referred to it previously by the commission, as contained in the second, seventh and eighth reports of the Special Rapporteur. Following presentation and consideration of the report of the Drafting Committee, the Commission adopted, on first reading, a set of 18 draft articles, including an annex, together with commentaries thereto. In accordance with articles 16 to 21 of its Statute, the Commission transmitted the draft articles, through the Secretary-General, to Governments for comments and observations, with the request that such comments and observations be submitted to the Secretary-General by 1 December 2023.29
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.30
1 See Yearbook … 2006, vol. II (Part Two), para. 257.
3 See Yearbook … 2007, vol. II (Part Two), para. 375.
4 See Yearbook … 2008, vol. II (Part One), document A/CN.4/601.
5 Document A/CN.4/596 and Corr.1.
6 See Yearbook … 2008, vol. II (Part Two), paras. 267–311.
7 See Yearbook … 2010, vol. II (Part One), document A/CN.4/631.
8 See Yearbook … 2011, vol. II (Part One), document A/CN.4/646.
9 See Yearbook … 2011, vol. II (Part Two), paras. 104–203.
10 See Yearbook … 2012, vol. II (Part Two), paras. 84 and 85; and Yearbook … 2012, vol. II (Part One), document A/CN.4/654.
11 See Yearbook … 2013, vol. II (Part One), document A/CN.4/661.
12 See Yearbook … 2013, vol. II (Part Two), paras. 43–45.
14 See Yearbook … 2014, vol. II (Part One), document A/CN.4/673.
15 See Yearbook … 2014, vol. II (Part Two), paras. 126–127.
17 See Yearbook … 2015, vol. II (Part One), document A/CN.4/686.
18 See Yearbook … 2015, vol. II (Part Two), paras. 174–176.
19 Document A/CN.4/701.
20 See Yearbook … 2016, vol. II (Part Two), para. 193.
21 See ibid., paras. 194–195 and 250.
22 See Yearbook … 2017, vol. II (Part Two), paras. 72–77 .
23 Document A/CN.4/722.
24 See Yearbook … 2018, vol. II (Part Two), para. 272.
25 Document A/CN.4/729.
26 See Official Records of the General Assembly, Seventy-fourth Session, Supplement No. 10 (A/74/10), paras. 122–125.
27 Document A/CN.4/739.
28 See Official Records of the General Assembly, Seventy-sixth Session, Supplement No. 10 (A/76/10), paras. 56–60.
29 See Official Records of the General Assembly, Seventy-seventh Session, Supplement No. 10 (A/77/10), paras. 63–67.
30 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; 71/140 of 13 December 2016; 72/116 of 7 December 2017, 73/265 of 22 December 2018, 74/186 of 18 December 2019, 75/135 of 15 December 2020, 76/111 of 9 December 2021 and 77/103 of 7 December 2022.