Immunities of state officials are a subject matter in international law that continues to raise tensions between States. The seventy-sixth session of the International Law Commission (ILC) will take place in Geneva from April 14 to May 30 and June 30 to July 31, 2025. One of the topics to be discussed on the agenda is the Immunity of State Officials from Foreign Criminal Jurisdiction.
In the current ILC program, the immunity of state officials is the longest-running topic. In the upcoming 76th session, Claudio Grossman Guiloff will present his second report as Special Rapporteur. One of the most contentious aspects of his report is Draft Article 7, which currently states the following:
Crimes under international law in respect of which immunity ratione materiae shall not apply
1. Immunity ratione materiae from the exercise of foreign criminal jurisdiction shall not apply in respect of the following crimes under international law:
(a) crime of genocide;
(b) crimes against humanity;
(c) war crimes;
(d) crime of apartheid;
(e) torture;
(f) enforced disappearance;
(g) crime of aggression;
(h) slavery;
(i) slave trade
This post aims to highlight the significance of jus cogens in establishing exceptions to functional immunity. The debate surrounding Draft Article 7 could revive jus cogens in the ILC debate if, as Lithuania has suggested, it is adopted as the defining criteria.
A lack of consensus at the ILC
The 69th session of the ILC in 2017 marked the initial attempt to establish a criteria for Draft Article 7. Among all the members of the Commission 30 participated in the recorded vote of Draft Article 7, as follows (para. 59):
In favour: Mr. Argüello Gómez, Mr. Cissé, Ms. Escobar Hernández, Ms. Galvão Teles, Mr. Gómez Robledo, Mr. Hassouna, Mr. Hmoud, Mr. Jalloh, Ms. Lehto, Mr. Murase, Mr. Nguyen, Ms. Oral, Mr. Ouazzani Chahdi, Mr. Park, Mr. Peter, Mr. Reinisch, Mr. Ruda Santolaria, Mr. Saboia, Mr. Tladi, Mr. Valencia-Ospina, Mr. Vázquez-Bermúdez.
Against: Mr. Huang, Mr. Kolodkin, Mr. Laraba, Mr. Murphy, Mr. Nolte, Mr. Petrič, Mr. Rajput, Sir Michael Wood.
Abstaining: Mr. Šturma.
Since the discussion of Roman Kolodkin’s second report in 2011 (first Rapporteur), it has been asserted that it is difficult to claim that exceptions to immunity have developed into a norm of customary international law or to assert a trend toward establishing such a norm (para. 94).
In contrast, in the discussion of Concepción Escobar Hernández’s fifth report (second Rapporteur) in 2017, she took the position that although it was not possible to determine the existence of a customary rule allowing exceptions to personal immunity or identify a trend in favour of such a rule, exceptions to immunity of state officials do apply in the context of functional immunity (para. 240).
Jus Cogens about to leave the garage?
As demonstrated, in 2017, there was a lack of consensus among the crimes included in Draft Article 7. In this context, the ILC needs to establish a criteria to substantiate the list of crimes. If the jus cogens nature of the crimes is persuasive enough to be part of the criteria and following the non-exhaustive list of Conclusion 23 of the ILC Conclusions on the identification and legal consequences of peremptory norms of general international law (jus cogens) approved in 2023, all the crimes listed in Draft Article 7—except for enforced disappearance and the slave trade—along with both the crime of aggression and the crime of slavery, as recently added by the Special Rapporteur, are justifiably included.
Concerning slave trade, the ILC itself has established in the commentaries to the Draft Articles on the Law of Treaties, what it termed “the most obvious and best settled rules of jus cogens” (p. 248). These include the unlawful use of force contrary to the principles of the Charter, as well as acts such as the trade of slaves.
Regarding enforced disappearance, according to Article 7(2)(i) of the Rome Statute it qualifies as a crime against humanity when it occurs within the context of a widespread or systematic practice. However, it is not included in the non-exhaustive list of jus cogens norms as an autonomous crime.
Nevertheless, the Inter-American Court of Human Rights (IACtHR) has reiterated in its case law that its prohibition and the correlative duty to investigate them and punish those responsible have reached the character of jus cogens (para. 106). As Ruda Santolaria suggests, a jus cogens norm may originate from a process initiated in a specific region (p. 324).
Moreover, the ILC, in its Conclusion 9 on jus cogens, asserts that the decisions of international courts and tribunals serve as subsidiary means for determining the peremptory nature of norms of general international law. Consequently, this may be interpreted as the authority of the IACtHR to determine the jus cogens status of enforced disappearances, providing a strong argument for the maintenance of this crime in the list of Draft Article 7.
However, a potential argument against identifying exceptions based on their jus cogens status is found in the ICJ´s Jurisdictional Immunities of the State case, where the Court asserted that no conflict exists between jus cogens norms and immunities, categorising the latter as procedural and the former as substantive (para. 93). Moreover, in Case Concerning Certain Questions of Mutual Assistance in Criminal Matters the Court recognised that when a State invocates the immunity in a judicial process before a foreign court, the State assumes the responsibility for any internationally wrongful act committed by its organs (para. 196).
However, as Alain Pellet argued, while the ILC must take into account the ICJ’s case law, it is not obliged to endorse all of its reasoning, especially when it involves mistakes (para. 57). Furthermore, granting immunity to state officials who have committed international crimes presents two dimensions: particular and universal. On the particular level, such immunity obstructs the guarantee of human rights, including the right to access to justice, to an effective remedy, and to redress and truth. On the universal level, it obstructs accountability for grave breaches of jus cogens norms.
Other criteria?
Moreover, if other criteria are proposed in parallel, such as criteria based on the Rome Statute, it could face opposition due to non-ratification by some States. On the contrary, an open list, as suggested by Estonia, would cover new developments in customary international law and allow the addition of crimes like human trafficking, terrorism, etc. Additionally, criteria based on the Nuremberg Charter and Principles could support the maintenance of the crime of aggression as a core crime under customary international law. It is my view that it is necessary to have a diversity of criteria for Draft Article 7, to maintain the proposed list of crimes and include new ones.
Therefore, if in the 76th session in 2025, a set of criteria is proposed, and the ILC considers jus cogens (along with other criteria), it is possible—especially given the number of States advocating for the inclusion of more crimes—that the Commission will accept the maintenance of crimes recognised as peremptory norms of international law. According to Andrea Bianchi, jus cogens and obligations erga omnes provide a solid foundation to justify exercising jurisdiction over individuals, regardless of their official capacity, when they commit acts that attack the values of the international community (p. 277).
Concluding Remarks
In the discussions of Draft Article 7 at the 76th session of the ILC regarding the establishment of a criteria, jus cogens can play an important role to keep the current list of crimes. However, if the intention is to include more or to set an open list, jus cogens must be complemented by other criteria (universal jurisdiction from a treaty-based approach, the gravity of the crimes, Nuremberg core crimes, State practice related to the Rome Statute).
For example, according to Dapo Akande and Talita de Souza Dias, the removal of immunity contained in Article 27 of the Rome Statute can also applied to State parties and their domestic courts, either to allow them to exercise their domestic jurisdiction, with primacy over the ICC, or to allow the Court to take over the case when immunity is involved.
Although the fear of States regarding the abuse of the exercise of criminal jurisdiction against their state officials by other States is legitimate, the establishment of clear criteria based on codification and progressive development of international law ensures that interstate relations and the principle of sovereign equality are not threatened.
Therefore, respect for sovereignty through the recognition of immunity is only possible if compliance with the obligation to provide reparation measures to victims of international crimes is ensured through the implementation of accountability mechanisms.
Moreover, in the 76th session of the ILC, members will face the risk of politicising the discussion on Draft Article 7, by allowing the government´s positions to prevail over the individual capacity of the membership. During the plenary discussions on immunities at the 75th Session, ILC member Mario Oyarzábal emphasised that while the Commission could not ignore the sensitivities of the topic, it should nonetheless carry out its work in a technical and apolitical way, to ensure that it did not lose its added value (p. 16).
However, as Martti Koskenniemi observed: “There is no space in international law that would be ‘free’ from decisionism, no aspect of the legal craft that would not involve a ‘choice’ – that would not be, in this sense, a politics of international law” (p. 596).
