Introduction
The Sassi and Benchellali v. France case in the European Court of Human Rights (ECtHR), that dealt with immunity of former United States (US) officials in criminal proceedings for allegations of torture in the Guantanamo Bay detention camp, joins the ongoing discussion on immunity for State officials (the text of the decision is available in French, see here, for a non-official English translation, via Google Translate, see here). In particular, the case sheds light on the debate concerning the existence of exceptions to State immunity for violations of jus cogens norms.
The debate concerning such exceptions revolves around article 7 of the International Law Commission (ILC) Draft Articles on Immunity of State Officials from Foreign Criminal Jurisdiction (the “Draft Articles”), according to which immunity ratione materiae does not apply to jus cogens violations, like torture. Sassi and Benchellali came in a timely fashion, as the ILC continued its work on the Draft Articles during its 75th summer session (for discussion on dilemmas prior to the session, see here).