Methodological Flaws in the ILC's Study on Exceptions to Immunity Ratione Materiae of State Officials from Foreign Criminal Jurisdiction

Abstract

In July 2017, the UN International Law Commission (ILC) provisionally adopted Draft Article 7 on exceptions to immunity ratione materiae of state officials from foreign criminal jurisdiction, by a recorded vote of twenty-one votes in favor, eight votes against, and one abstention. In the view of the majority of ILC members, immunity ratione materiae does not apply to the six international crimes listed in the draft article—genocide, crimes against humanity, war crimes, apartheid, torture, and enforced disappearance—either because of a limitation or because of an exception. The unusual practice of adopting a draft article by recorded vote demonstrated the deep controversy among the ILC members themselves. After all, exceptions to official immunity lie at the core of the project of “Immunity of State Officials from Foreign Criminal Jurisdiction” that was started a decade ago by the ILC. This divisive Draft Article 7 naturally garnered criticism and equally deep controversy among states in discussions on the ILC's work report at UN General Assembly Sixth Committee in late October 2017.