The ILC adopts draft art. 7 on Immunity of State officials from foreign criminal jurisdiction.
by Giulia Bernabei*
The issue of immunity of State officials from foreign criminal jurisdiction has been under the lens of the International Law Commission for approximately the last decade. During this time, the Secretariat, the former and the incumbent Special Rapporteurs, Mr. Roman A. Kolodkin and Ms. Concepción Escobar Hernández, various Governments, the Drafting Committee and the ILC in plenary, together with the GA Sixth Committee, have been involved, to varying degrees, in studying the issue.
In this post, I will contend that draft art 7, both in the wording of the Special Rapporteur and in the version eventually adopted by the ILC, does not reflect customary international law nor does it enshrine its progressive development.
I will focus on Ms. Escobar Hernandez fifth’s report released on 14 June 2016. The ILC considered the report at its sixty-eighth and sixty-ninth sessions in 2016 and 2017 respectively. On 30 May 2017, draft art. 7 was referred by the ILC to the drafting Committee, which delivered a report, then introduced to the ILC on 20 July 2017. On that occasion, by 21 votes in favour, 8 votes against and 1 abstention, the ILC provisionally adopted draft art. 7. Continue reading
This week, 12 Non-Governmental Organisations (NGOs), amongst which Amnesty International and Human Rights Watch, sent a joint letter to the Special Rapporteur of the International Law Commission on crimes against humanity regarding his work on the draft articles for a Convention on crimes against humanity.
The NGOs urge the Special Rapporteur to set out provisions which among others oblige states to exercise their competence when a person suspected of responsibility for crimes against humanity is found in any territory subject to their jurisdiction and permit States to initiate investigations based on universal jurisdiction over crimes against humanity suspects.
The NGOs say that no safe havens whatsoever should be available for those who perpetrate crimes against humanity, as those crimes are so grave that they harm the entire international community.
For them, such approach is consistent with the principle established in Nuremberg and would also be the most appropriate framing of jurisdiction, given the position under customary international law and the relationship between crimes against humanity and grave breaches of the Geneva Conventions.
The Special Rapporteur will soon be presenting a set of draft articles, mainly on the scope of States jurisdiction for crimes against humanity, for the consideration of the International Law Commission.