scholarly journals Immunity Ratione Materiae of State Officials from Foreign Criminal Jurisdiction: Where is the State Practice in Support of Exceptions?

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 4-8 ◽  
Author(s):  
Sean D. Murphy
Keyword(s):  
International Law ◽  
War Crimes ◽  
The State ◽  
Crimes Against Humanity ◽  
Draft Article ◽  
Criminal Jurisdiction ◽  
State Practice ◽  
International Law Commission ◽  
Law Commission

In the summer of 2017, the UN International Law Commission adopted Draft Article 7 and an associated draft annex for its project on immunity of state officials from foreign criminal jurisdiction. The draft article identifies six “crimes under international law in respect of which immunity ratione materiae shall not apply”: genocide; crimes against humanity; war crimes; crime of apartheid; torture; and enforced disappearance. Given the divergences within the Commission when considering and adopting Draft Article 7 (as evidenced by the plenary debate in 2016 and 2017, the unusual recorded vote on whether to refer the matter to the Commission's drafting committee, and the Commentary), it is difficult to conclude that the Commission is expressing a view that Draft Article 7 reflects lex lata.

The international law commission’s recent work on exceptions to immunity: Charting the course for a brave new world in international law?

2018 ◽  
Vol 32 (01) ◽  
pp. 169-187
Author(s):  
Dire Tladi
Keyword(s):  
International Law ◽  
War Crimes ◽  
Crimes Against Humanity ◽  
Draft Article ◽  
International Crimes ◽  
State Practice ◽  
Brave New World ◽  
Main Criticism ◽  
International Law Commission ◽  
Mixed Reaction

AbstractIn the summer of 2017, the International Law Commission adopted a draft article on exceptions to immunity. The Draft Article adopted provides that immunityratione materiaedoes not apply with respect to certain international crimes, namely crimes against humanity, the crime of genocide, war crimes, the crime of apartheid, torture, and enforced disappearances. These exceptions do not apply to immunityratione personae. The Draft Article was adopted after a vote and was severely criticized by some members of the Commission. It has also received mixed reaction from states, with some supporting its content while others have opposed it. In the aftermath of the adoption of the Draft Article, there has also been academic commentary, some of which has been critical. The (main) criticism levelled against the Draft Article is that it does not represent existing law and has no basis in the practice of states. This article seeks to evaluate the criticism by considering whether there is any state practice in support of the Draft Article proposed by the Commission.

scholarly journals Methodological Flaws in the ILC's Study on Exceptions to Immunity Ratione Materiae of State Officials from Foreign Criminal Jurisdiction

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 9-15 ◽  
Author(s):  
Qinmin Shen
Keyword(s):  
International Law ◽  
War Crimes ◽  
Crimes Against Humanity ◽  
General Assembly ◽  
Draft Article ◽  
Criminal Jurisdiction ◽  
International Crimes ◽  
The Core ◽  
Un General Assembly ◽  
International Law Commission

In July 2017, the UN International Law Commission (ILC) provisionally adopted Draft Article 7 on exceptions to immunity ratione materiae of state officials from foreign criminal jurisdiction, by a recorded vote of twenty-one votes in favor, eight votes against, and one abstention. In the view of the majority of ILC members, immunity ratione materiae does not apply to the six international crimes listed in the draft article—genocide, crimes against humanity, war crimes, apartheid, torture, and enforced disappearance—either because of a limitation or because of an exception. The unusual practice of adopting a draft article by recorded vote demonstrated the deep controversy among the ILC members themselves. After all, exceptions to official immunity lie at the core of the project of “Immunity of State Officials from Foreign Criminal Jurisdiction” that was started a decade ago by the ILC. This divisive Draft Article 7 naturally garnered criticism and equally deep controversy among states in discussions on the ILC's work report at UN General Assembly Sixth Committee in late October 2017.

scholarly journals The “International Crime” Exception in the ILC Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction: Two Steps Back?

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 27-32 ◽  
Author(s):  
Rosanne van Alebeek
Keyword(s):  
International Law ◽  
International Crime ◽  
Customary International Law ◽  
Draft Article ◽  
The Real ◽  
Criminal Jurisdiction ◽  
International Crimes ◽  
Functional Immunity ◽  
International Law Commission ◽  
Law Commission

In addressing the topic of the immunity of state officials from foreign criminal jurisdiction, the International Law Commission (ILC) took on one of the most contentious issues in contemporary international law. The question whether functional immunity applies when officials are accused of having committed international crimes has divided courts and scholars alike, and the ILC was deeply split. The “international crimes” exception set forth in Draft Article 7 was, exceptionally, put up for a vote, with twenty-one votes cast in favor of provisional adoption, one abstention, and eight negative votes. Because the ILC has a mandate to both codify and progressively develop international law, these figures do not help resolve what was arguably the real bone of contention: whether or not the exception is already part of customary international law—that is, whether it is lex lata.

The Persistent Objector Rule in the Work of the International Law Commission on the Identification of Customary International Law

2018 ◽  
Vol 27 (1) ◽  
pp. 175-188
Author(s):  
James A. Green
Keyword(s):  
International Law ◽  
The State ◽  
Customary International Law ◽  
Specific Focus ◽  
State Practice ◽  
International Law Commission ◽  
Law Commission

The persistent objector rule is a well-known but controversial mechanism for a state to exempt itself from norms of customary international law. This article examines the rule with a specific focus on the work of the International Law Commission (ILC) on the Identification of Customary International Law, through a consideration of Conclusion 15 and the commentary to it that have been adopted, as well as the ILC plenary debates on the topic. The state usage and, indeed, very existence of the rule will be considered, given that this has been so controversial in the ILC and wider literature. The article further examines whether the rule rightly formed an aspect of the Commission’s work, and looks at the terminology employed in Conclusion 15. Finally, it assesses the requirements for the operation of the persistent objector rule as expressed by the ILC, through comparison to the manner in which the criteria have been employed in state practice.

scholarly journals How far does the Systemic Approach to Immunities take us?

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 16-21 ◽  
Author(s):  
Philippa Webb
Keyword(s):  
International Law ◽  
Legal Order ◽  
Systemic Approach ◽  
Legal Certainty ◽  
Draft Article ◽  
Criminal Jurisdiction ◽  
International Legal Order ◽  
Systemic Nature ◽  
International Law Commission ◽  
Law Commission

The International Law Commission (ILC) explains in its 2017 Commentary to Draft Article 7 of its Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction that the draft articles are “intended to apply within an international legal order whose unity and systemic nature cannot be ignored.” The quest for coherence is admirable. It enhances legal certainty and predictability in an evolving area of the law. But a systemic approach can also go too far—stretching analogies and ignoring differences, seeing a trend where there is none. The trajectory of the ILC's work on Draft Article 7 illustrates certain dangers.

Visits to the ICRC

1990 ◽  
Vol 30 (277) ◽  
pp. 345-346
Keyword(s):  
International Law ◽  
International Criminal ◽  
War Crimes ◽  
Criminal Court ◽  
General Assembly ◽  
United Nations General ◽  
Peace And Security ◽  
United Nations General Assembly ◽  
International Law Commission ◽  
Law Commission

• ICRC President Comelio Sommaruga received the members of the International Law Commission (ILC) at ICRC headquarters on 7 June 1990.The Commission is a subsidiary body of the United Nations General Assembly. Its 34 members are elected from among the most eminent representatives of the world's different legal systems. The Commission is entrusted with the task of promoting the codification and development of international law. It is currently working on the codification of offences against the peace and security of mankind (which include war crimes) and the setting up of an international criminal court.

The Arbitral Award in the Enrica Lexie Case and its Questionable Recognition of Functional Immunity to the Italian Marines Under Customary International Law

2021 ◽  
Vol 30 (1) ◽  
pp. 209-225
Author(s):  
Raffaella Nigro
Keyword(s):  
International Law ◽  
Current Practice ◽  
The State ◽  
Arbitral Tribunal ◽  
Customary International Law ◽  
Criminal Jurisdiction ◽  
State Practice ◽  
Majority Judgment ◽  
Functional Immunity ◽  
The Military

The dispute between Italy and India on the Enrica Lexie incident has finally been decided by the Award handed down on 21 May 2020 by the Arbitral Tribunal to which the Parties had referred the case. After having concluded that it had jurisdiction on the issue of the immunity of the two Italian marines involved in the case at hand, the majority judgment (by three votes to two) affirmed that under customary international law the latter enjoyed functional immunity from the criminal jurisdiction of India. This article will argue that the Arbitral Tribunal’s conclusions are unconvincing, first and foremost, considering that, based on State practice, it is not possible to affirm without reservations that a settled customary rule exists under international law conferring immunity to all State officials, and regardless of the type of functions they perform. In fact, immunity has often been recognized as applying only to certain categories of State officials, and on the basis of the governmental nature of the functions they perform on behalf of the State. Given the doubtful existence under customary international law of a clear rule establishing the functional immunity of all State officials, for all the acts performed in the exercise of their functions, this article argues that the Arbitral Tribunal should have firstly ascertained the existence of a specific customary rule on the immunity of the military abroad, together with the exact content of such rule and, secondly, whether this was applicable in the case of the Enrica Lexie. As current practice stands, military forces abroad are entitled to immunity only under specific circumstances, which do not seem to occur in the present case. In particular, this article maintains that the Italian marines were not entitled to functional immunity. While the acts they performed did indeed fall within their typical functions, they were exercised on behalf of a private subject and not on behalf of the Italian State.

Crimes against humanity as a peremptory norm of general international law (jus cogens): There really is no doubt? But so what?

2020 ◽  
Vol 2020 ◽  
pp. 1-14
Author(s):  
Dire Tladi
Keyword(s):  
International Law ◽  
Crimes Against Humanity ◽  
Peremptory Norm ◽  
Jus Cogens ◽  
International Law Commission ◽  
Peremptory Norms ◽  
Law Commission

In 2019 the International Law Commission adopted two texts providing for the peremptory character of the prohibition of crimes against humanity, namely the draft articles on the prevention and punishment of crimes against humanity and the draft conclusions on peremptory norms of general international law. While both of these instruments recognise the peremptory character of the prohibition of crimes against humanity, neither of them address the consequences of the peremptory character of the prohibition of crimes against humanity. This article, on the basis, inter alia, of the internal processes leading to the adoption of these instruments, addresses the consequences of the peremptory character of the prohibition of crimes against humanity.

5 Rules of Attribution

2020 ◽  
Author(s):  
Hobér Kaj
Keyword(s):  
United Nations ◽  
International Law ◽  
The State ◽  
State Responsibility ◽  
Final Version ◽  
Legal Principles ◽  
Form Part ◽  
Energy Charter Treaty ◽  
International Law Commission ◽  
Law Commission

This chapter focuses on the rules of attribution. The State is not responsible for all acts and omissions of its nationals, but only for those which can be attributed to the State. It is thus necessary to establish this link between the State and the person, or persons, committing an unlawful act or omission. The legal principles used to establish this link are usually referred to as rules of attribution. The rules of attribution form part of the law of state responsibility, which, to a large part, is reflected in the work of the International Law Commission (ILC) of the United Nations. At its fifty-third session in 2001, the ILC adopted its final version of the ILC Articles on Responsibility of States for Internationally Wrongful Acts. The ILC Articles are intended to cover all aspects of state responsibility under international law. The rules of attribution are laid down in Chapter II of the ILC Articles. From an Energy Charter Treaty perspective, Articles 4—8 are the most relevant ones. The central provision with respect to attribution is Article 4, which confirms the well-established principle of international law that the State is responsible for the acts of its own organs acting in the capacity of the State.

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