The ILC’s First Reading Draft Articles on ‘Immunity of State Officials from Foreign Criminal Jurisdiction’ (2022)

Abstract

In August 2022, the International Law Commission adopted, on first reading, a full set of 18 draft articles (with commentaries) on Immunity of State Officials from Foreign Criminal Jurisdiction. The Commission now awaits the written comments of States, and will then have to decide how to proceed with the topic. In detailing the present situation and the work leading up to it, the present article takes the story forward from a contribution to this Yearbook in 2018. After recalling briefly the controversies surrounding the immunities in question, the article begins by describing the working methods of the Commission and the status of its documentation, emphasizing the importance of having a clear understanding of such matters when invoking the Commission’s work. The further work of the Commission on the topic in the years 2019–2022, much of it quite technical, is described, in order to give a full picture. It is then shown that the draft articles on the category of high officials enjoying immunity ratione personae and on possible exceptions to the immunity of State officials ratione materiae remain hotly disputed, both as assertions of existing law or as ‘trends’ or proposals for new law. The article ends by charting a possible course for the Commission’s future work on the topic, suggesting that a radical reappraisal is required if an outcome generally acceptable to States is to be achieved.