Lessons from the ILC’s Work on ‘Immunity of State Officials’: Melland Schill Lecture, 21 November 2017

Abstract

The topic Immunity of State officials from foreign criminal jurisdiction has been on the programme of work of the International Law Commission since 2007. After ten reports from two Special Rapporteurs, by June 2019 it has yet to complete a first reading, not least because the topic has proved highly contentious both within the Commission and among States. The Commission could only adopt a central provision (on exceptions to immunity ratione materiae), exceptionally, having recourse to voting. There are several lessons to be learnt from the handling of the topic over the last twelve years, including for such crucial aspects of the Commission’s working methods as the choice of topics; the need for a clear view of the Commission’s aim in taking up a topic; the need for rigour in assessing the current state of international law; the importance of dialogue, within the Commission and between the Commission and States; and the utility or otherwise of voting.