In 2017, the International Law Commission (ILC) tackled a thorny question: Should government officials, intelligence officers, military personnel, and other State agents enjoy immunity from prosecution for serious international crimes?
The ILC, the United Nations body charged with codifying and progressively developing international law, said at least partially “no.”
In draft of Article 7 of its text on immunity of State officials from foreign criminal jurisdiction the ILC found that functional immunity (immunity ratione materiae) did not apply to the crimes of genocide, crimes against humanity, war crimes, the crime of apartheid, torture, and enforced disappearances.
That conclusion drew disagreement among ILC members. The debate was great enough that the body, which generally operates through consensus, instead adopted the provision by majority vote. Outside of the ILC, draft Article 7 also divided States in the Sixth Committee (the legal arm) of the U.N. General Assembly. Although a slight majority of States were supportive of an exception to functional immunity to certain crimes under international law (see here for a different assessment by law professor Mathias Forteau), a number of delegations expressed concerns or disagreements to the rule proposed in draft Article 7.
Now, States have once again addressed the issue of exceptions to functional immunity: this time through their written comments to the complete set of Draft Articles on immunity of State officials from foreign criminal jurisdiction, adopted on first reading by the ILC in July 2022. This round of written input, years after the debate in the Sixth Committee, raises the question: where do States stand now?
The answer to this question is particularly relevant as the ILC prepares to convene in Geneva for its 75th Session this spring and summer. During the meeting the ILC will begin to consider the Draft Articles on second reading.
While the cautious or ambiguous language that States use in their written submissions often makes them subject to interpretation and disagreement, the written comments show a shift in position: There is now a clear majority of support for draft Article 7, at least to the extent that it provides for the inapplicability of functional immunity to the crimes of genocide, crimes against humanity, and war crimes.
Yet gaps and opposition remain. Moving forward, rather than trying to find consensus among States, the ILC should focus on strengthening the normative basis of draft Article 7 by clarifying the rationale underpinning the inapplicability of functional immunity to crimes under international law and outlining more comprehensively the State practice and opinio juris in support of that rationale. Once approved on second reading, the Draft Articles could serve as guidance to assist States, as well as national and international tribunals, on how to interpret and apply the rules relating to immunity of State officials from foreign criminal jurisdiction.
Where do States Stand Now?
A total of thirty-nine States submitted written comments to the Draft Articles to date, almost all of which provided specific comments to draft Article 7. Panama was the only State which did not explicitly address draft Article 7, though it did not pose any objections to the Draft Articles as a whole. Overall, States still seem divided in relation to draft Article 7. While twenty-three States (Australia, Austria, Czech Republic, Estonia, Ireland, Latvia, Liechtenstein, Lithuania, Luxembourg, Mexico, Norway (on behalf of itself and the Nordic countries of Denmark, Finland, Iceland, and Sweden), Netherlands, Poland, Portugal, Romania, Sierra Leone, Spain, Sweden, Switzerland, and Ukraine) were favorable to the inclusion of restrictions to functional immunity with respect to crimes under international law.
Eleven States (Brazil, France, Iran, Israel, Japan, Russia, Saudi Arabia, Singapore, United Arab Emirates, United Kingdom, and the United States) were overall critical to the rule contained in draft Article 7, and four States (Malaysia, Morocco, Germany, and the Republic of Korea) presented neutral or ambiguous positions. With regard to the group of opposing States, some distinction must be drawn, as the views expressed by those States are not entirely homogeneous. For instance, some States, such as Israel, Iran, Russia, Singapore, and the United Arab Emirates, continued to hold an absolute view on immunity, with some arguing for a complete deletion of draft Article 7. Other States, such as Brazil, France, and the United Kingdom, adopted a more nuanced opposition either by admitting to the existence of a trend towards the inapplicability of immunity to crimes under international law or advocating to maintain draft Article 7 if conditioned to the express indication that it constitutes lex ferenda (a statement of what the law ought to be).
As for the legal nature of the exception proposed in draft Article 7, eleven States (Austria, Czech Republic, Ireland, Estonia, Liechtenstein, Lithuania, Luxembourg, Poland, Romania, Spain, and Ukraine) considered it to be reflective of customary international law, at least with respect to the crime of genocide, crimes against humanity, and war crimes.
The opposing view was expressed by ten States (Australia, Brazil, France, Iran, Israel, Japan, Singapore, Russia, the United Arab Emirates, and the United States), which do not believe the provision to be supported by sufficient State practice and opinio juris.
Germany adopted an intriguing – if not paradoxical – position. In its submission, Germany considered the non-applicability of functional immunity to the most serious international crimes to be a norm of customary international law only “in status nascendi.” This was despite the fact it recognized that “the existence of exceptions to functional immunity ratione materiae when the most serious international crimes are being committed is a conditio sine qua non for the application of international criminal law in national courts.” And that it enumerated several judgements where functional immunity did not hinder the criminal proceedings, some of which date back more than seventy years.
One could wonder whether this ambiguous view was expressed in order to align its position, at least partially, to that of other States of the G7 or if it was a way for Germany to reconcile the conflicting views it has presented to the Sixth Committee in the past (for a detail analysis of the German position see here or here).
It is worth reminding that, following its usual practice, the ILC itself did not explicitly state whether the exception proposed in draft Article 7 constitutes codification of existing law or progressive development for what the law ought to be as lex ferenda. A number of States, particularly those which do not believe the provision to reflect customary international law, recommended that the ILC clarify its position in this regard and specify where a particular provision reflects a normative viewpoint.
Several States also commented on the list of crimes provided for in paragraph 1 of draft Article 7. France, Lithuania, the United Kingdom, and the United States observed that the ILC did not provide a criterion for how it selected the crimes featured in the draft article. In this perspective, France recommended that the ILC focus on the reasons behind the proposed exception, rather than fixing an exhaustive list. Similarly, Estonia, the Netherlands, Ireland, and Poland would prefer the provision to declare the inapplicability of functional immunity to a category of crimes, such as crimes under international law, as suggested by the Netherlands, or crimes covered by the Nuremberg Principles, as suggested by Poland. Finally, fifteen States (Austria, Czech Republic, Estonia, Ireland, Latvia, Liechtenstein, Lithuania, Luxembourg, Portugal, Poland, Romania, Sierra Leone, Spain, Switzerland, and Ukraine), urged the Commission to extend the exception contained in draft Article 7 to the crime of aggression.
Besides enumerating key State practice and opinio juris in support of the view that the exception to functional immunity is applicable to all crimes under international law without distinction, those States also argued that the same rationale that explains the absence of immunity with respect to the crime of genocide, crimes against humanity, and war crimes, is also applicable to the crime of aggression; and that its exclusion from the list of draft Article 7 could suggest a hierarchy between crimes and undermine the efforts for accountability for the crime of aggression.
The number of States that expressed the view that the exception contained in the draft Article also extends to the crime of aggression is now more than triple than the one from 2017, when only four States (Estonia, Portugal, Slovenia, and Ukraine) held that position in the Sixth Committee. In this context, unfortunate recent global events, in particular Russia’s ongoing war of aggression against Ukraine, seem to have played a relevant role in reminding States of the importance of guaranteeing that State officials who potentially commit the gravest crimes under international law do not go unpunished. Indeed, the submissions presented not only by Ukraine, but also by Estonia, Latvia, Liechtenstein, Luxembourg, and Poland contain express references to the crimes of aggression committed against Ukraine and the efforts to prosecute those responsible by them, among the arguments to the inclusion of the crime in the scope of draft Article 7.
The position of States in relation to draft article 7, as expressed in their written commentaries submitted to the ILC in December 2023, are summarized in the charter below:
| Topic/Position | Overall supportive to draft article 7 | Overall critical of draft article 7 | Indicating a neutral or ambiguous position |
| Overall reaction to draft article 7 | Australia, Austria, Czech Republic, Estonia, Ireland Latvia, Liechtenstein, Lithuania, Luxembourg, Nordic countries, Netherlands, Portugal, Mexico, Poland, Romania, Sierra Leone, Spain, Switzerland, and Ukraine | Brazil, France, Iran, Israel, Japan, Saudi Arabia, Singapore, United Arab Emirates, Russia, U.K., and the United States | Germany, Malaysia, Morocco, and the Republic of Korea |
| The exception constitutes customary international law (at least in relation to core international crimes) | The exception does not constitute customary international law | Position is ambiguous or was not expressed | |
| Legal nature of the exception expressed in draft article 7 | Austria, Czech Republic, Ireland, Estonia, Liechtenstein, Lithuania, Luxembourg, Poland, Romania, Spain, and Ukraine | Australia, Brazil, France, Iran, Israel, Japan, Singapore, Russia, United Arab Emirates, and the United States | Germany, Saudi Arabia, Latvia, Malaysia, Morocco, the Netherlands, Nordic countries, Mexico, Portugal, Panama, Republic of Korea, Sierra Leone, Switzerland, and the U.K. |
| Recommends the inclusion of the crime of aggression | Expressly supports the ILC decision not to include the crime of aggression | Recommends a non-exhaustive list or defining a clear criterion | |
| List of crimes featured on draft article 7(1) | Austria, Czech Republic, Estonia, Ireland, Latvia, Liechtenstein, Lithuania, Luxembourg, Portugal. Poland, Romania, Sierra Leone, Spain, Switzerland, and Ukraine | France | Estonia, Netherlands, Ireland, Poland and France
|
What has Changed?
Although it is clear that there is still no consensus among States regarding exceptions to functional immunity with respect to crimes under international law, it is now much easier to determine where the majority lies. If in 2017 States seemed almost equally divided on the matter, the written comments submitted to the Commission in 2023 show a clear majority of support to draft Article 7, at least to the extent that it provides for the inapplicability of functional immunity to the crimes of genocide, crimes against humanity, and war crimes.
In this context, it is worth mentioning that a few States shifted their position from 2017 to 2023. Among those States are Ireland, Spain, and Switzerland. While in 2017 (here, here, and here) they were not convinced that draft Article 7 was grounded on widely accepted practice and should, thus, be revisited, they now expressed a clear support to restricting the application of immunity to crimes under international law.
| State/Year | 2017 Statement | 2023 Submission |
| Ireland | “Accordingly, the resultant draft Article 7 may not be fully grounded in widely accepted State practice. In light of this, further information on practice relating specifically to the non-application of immunity would be helpful.” | “In particular, while acknowledging the difference of opinion within the Commission on draft article 7, in Ireland’s view the absence of a provision such as this would mean that the scope of immunity ratione materiae would be much broader than international law currently allows. Our view is that such immunity is in fact subject to important limits imposed by international criminal law as it has developed in recent decades. These limits, we believe, should indeed be the subject of a draft article.” |
| Spain | “[…] my delegation has no doubt regarding, for example, the conclusion that immunities ratione personae of heads of States, heads of governments and Ministers of Foreign Affairs constitute customary law. Nonetheless, we can honestly not state the same with respect to the exceptions and restrictions to immunities ratione materiae. In regard to this aspect, it is particularly difficult to identify (as well as analyze) State practice as well as opinio juris.” (translated by the author from the original Spanish text) |
“Spain fully supports the inclusion of article 7, which identifies the crimes in respect to which immunity from foreign criminal jurisdiction ratione materiae does not apply.” (translated by the author from the original Spanish text) |
| Switzerland | “We believe that it is of paramount importance that an article on the exceptions to functional immunity of State officials from foreign criminal Jurisdiction is either solidly based in extensive and virtually uniform State practice and opinio juris or clearly labelled as a progressive development of the law. After a careful review of the different sources cited in support of draft article 7, Switzerland is of the view that this high threshold has not been reached.” | “Switzerland supports draft article 7, which excludes the application of immunity ratione materae to certain crimes under international law. Switzerland, however, is of the opinion that the crime of aggression must imperatively appear in the list of crimes under international law to which immunity ratione materiae does not apply.” (translated by the author from the original French text) |
A more subtle change can be seen in the position of Australia. Although its government was still reluctant to consider that draft Article 7, as currently drafted, wholesale reflects customary international law, Australia recognized the importance of national courts in the prosecution of international crimes and seemed to support an exception to functional immunity with respect to the most serious international crimes as a proposal of progressive development.
| 2017 Statement | 2023 Submission | |
| Australia | “Australia shares the concerns of those members who voted against the provisional adoption of the draft article that, in its current form, does not reflect any real trend in State practice, still less existing customary international law.” | “Australia considers that draft article 7, as currently drafted, reflects the progressive development of international law. However, taking into account recent practice, including by national courts, Australia acknowledges that there is a discernible trend of the non-applicability of functional immunity for serious international crimes at the national level.” |
A shift in position can also be perceived in Germany’s submission. Despite still being highly critical to the lack of transparency from the Commission with regard to the legal nature of draft Article 7, the view expressed by Germany in 2023 can be seen as coming very close to a support to the restrictions proposed by the ILC, whereas in 2017 the country questioned whether the provision constituted customary international law or even a desirable progressive development.
| 2017 Statement | 2023 Submission | |
| Germany | “In our view, draft article 7, whether in its original form as proposed by the Special Rapporteur or in its current form, fails to reflect the state of customary international law as it stands today. […] This leads to the question whether draft article 7 in its present form would be a desirable development of international law. In this regard, we support the criticism levelled at draft article 7 by many members within the ILC itself […]” |
“Germany is therefore of the view that one might speak of a norm of customary international law “in status nascendi”. Germany discerns a trend towards the acceptance of exceptions from immunity ratione materiae when it comes to the most serious crimes under international law.” |
The perception that States are overall more receptive to draft Article 7 is also enhanced by the fact that States have been more vocal in expressing their support to the provision. If in 2017 statements agreeing with the restrictions established in draft Article 7 were often hesitant or clouded by concerns with the adoption through vote or the lack of procedural safeguards, in the written observations addressed to the ILC in 2023, States have been more explicit in expressing their support to the notion that State officials do not enjoy functional immunity for crimes under international law. In that regard, it should be noted that several States (Estonia, Latvia, Liechtenstein, Lithuania, Luxembourg, Poland, Portugal, Romania, and Ukraine) have submitted written observations exclusively focused on draft Article 7, in which they presented lengthy reasons in favor of the inapplicability of immunity to crimes under international law.
Although the latest submissions concerning the ILC project on immunity of State officials show a more positive scenario for the restriction of functional immunity for crimes under international law, it is unfortunate that only twenty-three States have presented submissions to the ILC in 2023 supporting such restriction. This has to do with the fact that it is not unusual for the ILC projects to receive a rather limited number of comments by governments; and, while the total amount of written observations submitted by States with regard to the Draft Articles on immunity of State officials is relatively high compared to other topics concluded in the past five years, it still represents a fairly small portion of the 193 U.N. member States.
The Way Forward
At the present moment, it does not seem possible for the ILC to address the issue of exceptions to immunity during its second reading of the Draft Articles in a way that would be met with the approval of all States. Deleting draft Article 7 or keeping it expressively as a proposal of progressive development of international law might please the few States that have been holding on to a more traditional view of State sovereignty, but would certainly frustrate a number of States that believe that the development of international criminal law led to the emergence of an exception to functional immunity under customary international law. The opposite is also true: embracing the inapplicability of functional immunity with respect to crimes under international law will likely continue to be faced with opposition, albeit by fewer States.
When speaking on the ILC’s mandate, law professor and former Commission member Alain Pellet stated that, as an expert body, its role “is to explain why a concept is logically and legally necessary” and it “should not accept that consistency be sacrificed for reason of a supposed non-acceptability.” Although some might disagree on what precisely the ILC’s role is, Pellet’s words reverberate as sound advice in the context of the Draft Articles on immunity of State officials.
The absence of functional immunity for crimes under international law is fundamental for the consistency and, above all, effectiveness of international criminal law. Failing to recognize that would not only harm the progress achieved by international criminal law over the past 70 years, as would also dishonor the Commission’s own history. In the past – be it in 1950, 1954, or 1996 – the ILC did not hesitate in affirming that the official position of an individual cannot be raised to relieve them of their criminal responsibility for the crimes of genocide, war crimes, crimes against humanity, and also the crime of aggression. It is difficult to think of compelling reasons why the Commission should decide any different now.
Therefore, rather than trying to find agreement, the ILC should focus on strengthening the normative basis of draft Article 7 by clarifying the rationale underpinning the inapplicability of functional immunity to crimes under international law and outlining more comprehensively the State practice and opinio juris in support of that rationale. This task is not as difficult as it may appear – as demonstrated by the submissions of several States and writings of numerous scholars (see here, here, here, here) – but might require the Commission to sacrifice some acceptability to assert a position on immunity that is consistent and necessary.