Introduction
In April and May 2025, the International Law Commission (ILC) is due to discuss, and possibly adopt on second reading, the Draft Articles on immunity of state officials from foreign criminal jurisdiction, adopted on first reading in 2022. During its session, the ILC will examine amendments to draft articles 7 to18 and an Annex proposed by the ILC Special Rapporteur on the topic, Claudio Grossman, in his second report published in January 2025 (draft articles 1 to 6 were the object of the Special Rapporteur’s first report).
One of the provisions that has attracted most attention is draft article 7 (p. 230), which excludes the application of immunity ratione materiae, or functional immunity, with respect to a number of crimes under international law (for analysis, see here, here, here and here). This is understandable in light of the long-standing debate on the existence of exceptions to immunity ratione materiae (see relevant contributions here), particularly with a view to ensuring accountability for crimes under international law, including for the highest officials.
On the other hand, a provision which has so far been generally overlooked is draft article 10. This provision envisages an obligation of the forum state, namely the state intending to exercise criminal jurisdiction against the official of another state, to notify the state of the official before initiating criminal proceedings or taking coercive measures.
In April 2025, Amnesty International published a submission which, among others, highlighted the risk draft article 10 poses to the fight against impunity for crimes under international law. This blog zooms in on the key arguments and concerns set out in the submission, ultimately recommending that the ILC delete article 10 from the Draft Articles or, if it is retained, replace it with a provision drafted with reference to previous ILC’s practice and established treaty law, according to which a notification obligation arises only after the forum state has taken custody of a suspect.
The proposed notification obligation to the state of the official
Draft article 10(1), as proposed to be amended in the Special Rapporteur’s second report (p. 32, para. 148), reads as follows:
Before the competent authorities of the forum State initiate criminal proceedings or take coercive measures that may affect an official of another State, the forum State shall notify the State of the official of that circumstance, unless such notification would jeopardize confidentiality of an ongoing investigation, or the proper conduct of criminal proceedings. […] (proposed amendment in italics in the original).
This provision envisages an obligation on the forum state to inform another state before its competent authorities “initiate criminal proceedings or take coercive measures” that may “affect” one of its officials suspected of criminal responsibility. According to the ILC’s 2022 Commentary, the rationale for this provision is that:
Notification is an essential requirement for ensuring that the State of the official receives reliable information on the forum State’s intention to exercise criminal jurisdiction over one of its officials and, consequently, for enabling it to decide whether to invoke or waive immunity (p. 249, para. 4).
The proposed prior notification obligation for purposes of claiming immunity is deeply problematic for both legal reasons and the negative practical effects such a notification may have on effective investigations and prosecutions.
As a matter of law, such proposed obligation has no basis in international law, as opposed to the notification obligation pursuant to which a state must be notified when one of its nationals has been taken into custody, which is found in a number of treaties (see below). As noted by the ILC itself: “treaty instruments providing for some form of immunity of State officials from foreign criminal jurisdiction do not contain any rule imposing on the forum State an obligation to notify the State of the official of its intention to exercise criminal jurisdiction over the official” (2022 Commentary, p. 248, para. 3), particularly notifications prior to any such exercise of criminal jurisdiction.
In terms of negative practical effects, the proposed notification obligation in draft article 10(1) poses a real risk to effective investigations and prosecutions, including with respect to crimes under international law specifically excluded from the application of immunity ratione materiae under draft article 7. For example, following notification, the state of the official may take measures to forestall or hinder investigations in the forum state. In addition, state officials subject of the notification may, among others, seek to evade or restrict their travel to the forum state; commit further criminal acts; threaten victims or witnesses; or tamper with evidence. These concerns are shared by several states (see below).
The foreseeable negative practical effects of a notification for purposes of claiming immunity are further compounded by the ILC’s decision to envisage the notification obligation, as per draft article 10(1), before “the competent authorities of the forum State initiate criminal proceedings or take coercive measures that may affect an official of another State”. The ILC has justified the inclusion of language setting out an a priori obligation out of a concern that such a notification “must be provided at an early stage, since otherwise it will not produce its full effects” (ibid., para. 6). Further, the ILC understands “coercive measures” to include “measures that may affect, inter alia, the official’s freedom of movement, his or her appearance in court as a witness or his or her extradition to a third State” (ibid., p. 247, para. 11).
The ILC’s contention that prior notification is “essential” for the possible invocation of immunity by the state of the official is not convincing. In fact, an applicable immunity can be invoked at any stage of the criminal proceedings in the forum state (see article 11(1) of the Draft Articles, p. 191), meaning that prior notification is in no way “essential”. Furthermore, while the amendment to draft article 10(1) proposed by the Special Rapporteur’s second report provides an exception to the notification obligation when prior notification to the state of the official may “jeopardize confidentiality of an ongoing investigation, or the proper conduct of criminal proceedings” (an implicit recognition of the possible negative effects of the broader provision drafted in 2022), the inclusion of such an exception does not go far enough to remedy the damaging potential of draft article 10(1).
Therefore, while the Special Rapporteur’s proposed amendment to the strict rule in draft article 10(1) is an improvement in its attempt to recognize the practical realities of investigations and prosecutions, it does not overcome the fundamental objection that there is no international legal basis or practical need at all to envisage a prior notification obligation on the forum state for purposes of a state claiming immunity for its officials.
And as a matter of policy, as mentioned above, draft article 10(1) may have significant negative impacts on the pursuit of individual accountability for crimes under international law, which is the very rationale, incorporated in draft article 7, for excluding the application of immunity ratione materiae with respect to certain of those crimes.
States’ positions on the proposed notification obligation
In their comments to the Draft Articles adopted in 2022, only few states expressed support for draft article 10 (Israel, para. 29; Russia, p. 21), while others raised concern with regard to the notification obligation included in this provision. Singapore stressed the importance of providing “competent authorities with the necessary flexibility and margin of discretion to fulfil their duties effectively” (para. 10). The Nordic states highlighted that “coercive measures in certain circumstances may be particularly urgent” and requested the ILC to “assess if there is a need to include an exception to the requirement of notification for urgent needs for coercive measures” (p. 7). These concerns seem to have been addressed in the amended version of draft article 10(1) proposed by the Special Rapporteur in his second report.
Other states, however, directly opposed the actual inclusion of a prior notification obligation within the Draft Articles. The Netherlands, for example, stated:
The Kingdom is not in favour of including a notification obligation in the draft articles, since there is no such obligation for the forum State and no basis for providing a description of the procedure to be followed or details to be provided in the event that criminal proceedings are initiated or coercive measures are taken that may affect an official of another State (p. 3).
Similarly, the United States declared: “Draft Article 10 is without support in State practice and could significantly impede efforts by States to investigate serious crimes” (p. 14).
The United Kingdom, in turn, pointed out: “[a] notification prior to the exercise of a coercive measure, such as issuing an arrest warrant, could compromise the investigation or lead to the suspect evading justice” (para. 39). France (para. 47) and Switzerland (p. 3) made similar observations.
The above shows that several states which commented on draft article 10 were rather critical of this provision, including due to the negative practical effects that it may have by compromising investigations and allowing persons to evade justice. Of particular interest is the criticism that the proposed prior notification obligation lacks a legal basis in international law and state practice, which is further discussed in the next sections.
ILC’s previous practice
While a prior notification obligation for purposes of a state claiming immunity for its officials does not find basis in international law, a notification obligation for the purposes of a state being informed when one of its nationals has been taken into custody is well grounded in treaty law.
In 2019, the ILC adopted the Draft Articles on Prevention and Punishment of Crimes against Humanity (CAH Draft Articles) (for recent developments on their status see here). Relevant for present purposes is article 9(3) of the CAH Draft Articles, which reads:
When a State, pursuant to this draft article, has taken a person into custody, it shall immediately notify the States referred to in draft article 7, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his or her detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this draft article shall, as appropriate, promptly report its findings to the said States and shall indicate whether it intends to exercise jurisdiction (emphasis added).
As mentioned, notification as set out in article 9(3) of the CAH Draft Articles does not explicitly serve the purpose of a state being able to claim immunity for its officials. Indeed, in the context of the CAH Draft Articles, the notification serves primarily as a safeguard for a suspect’s right to a fair trial, consular assistance and other human rights, and enables the state of the official to transmit an extradition request for a potential prosecution there, if preferred by the forum state (according to the aut dedere aut judicare principle).
Crucially, the timing of such a notification obligation – post-arrest or other similar measures –mitigates the significant negative practical effects (evading justice, forestalling investigations, etc.) of the prior notification currently envisaged under draft article 10(1) of the Draft Articles on immunities of state officials. Of course, there is nothing preventing a state, which is notified pursuant to article 9(3) of the CAH Draft Articles, to claim immunity for its official. In fact, while the latter may be arrested or subject to similar measures, issues of immunity (beyond immunity ratione materiae which would not apply with respect to certain crimes under international law) could be addressed by states before a case may progress beyond the arrest (or similar measures) stage.
Importantly, it is exactly to avoid possibly jeopardizing the initial course of an investigation that Article 9(3) of the CAH Draft Articles does not require the forum state to notify the state of the official before arrest or other legal measure is taken against a suspect. In this context, the ILC correctly assessed that imposing notification duties before the start of any proceedings could undermine the whole investigation as such, and thereby be damaging to the effective pursuit of justice, truth and reparation.
Therefore, when compared to Article 9(3) of the CAH Draft Articles, draft article 10 of the Draft Articles on immunities of state officials stands in stark contrast for its exceedingly broad temporality. Indeed, it provides that any notification should take place not only before arrest or “coercive measures” have been taken but, much further still, before criminal proceedings which affect an official of another state have been initiated. Such an expansion of the temporality of the notification obligation is so broad, and could potentially occur so much further in advance than the moment of a possible arrest, that it could essentially stop any prospect of a criminal justice proceeding commencing against a state official, whose state may try to make a claim of some form of immunity. This way, the prior notification obligation under draft article 10(1) would even run counter to two central goals of contemporary international law recalled by the ILC itself: “consolidating the fight against impunity” and “avoid[ing] that the immunity of State officials from foreign criminal jurisdiction results in impunity for the most serious crimes under international law” (2022 Commentary, p. 196, para. 7).
It is important to mention that the notification obligation included in article 9(3) of the CAH Draft Articles is grounded – unlike article 10(1) of the Draft Articles on immunity of state officials – in established treaty law. Numerous treaties addressing crimes include an obligation for a forum state, which takes custodial measures against a suspect, to notify the state(s) which could exercise criminal jurisdiction based on the principles of territoriality, active nationality or passive nationality after such measures have been taken (ILC, p. 91, footnote 447). Examples include the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Convention for the Protection of All Persons from Enforced Disappearance, and the Ljubljana-The Hague Convention.
Importantly, the ILC described this type of provisions as typical of treaties addressing crimes (p. 91, para. 5), whereas it acknowledged that the proposed prior notification obligation envisaged in the Draft Articles on immunity of state officials is not grounded in treaty law (2022 Commentary, p. 248, para. 3).
Concluding remarks
The proposed prior notification obligation included in article 10(1) of the Draft Articles on the immunity of state officials has been described as a “progressive development of international law” (Special Rapporteur, para. 144; France, para. 45; Germany, para. 11). While the ILC has an important role to play with regard to the latter, in the present context the proposed progressive development is unwarranted and would effectively constitute – respectfully speaking – a “regressive” development.
Accordingly, in the context of the possible adoption of the Draft Articles on second reading, the ILC should delete draft article 10. Alternatively, if a notification obligation is retained, the relevant provision should be drafted with very close reference to article 9(3) of the CAH Draft Articles and other similar such notification provisions found in existing treaty law, which envisage an obligation to notify those states which could exercise criminal jurisdiction, including the state of the official, only after – not before – the forum state has taken custodial or other legal measures to ensure the presence of a suspect.