Nobody’s Land: Where All step but No One Settles

The ILC adopts draft art. 7 on Immunity of State officials from foreign criminal jurisdiction.

by Giulia Bernabei*

Court HammerThe 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