CYIL 2012

PAVEL ŠTURMA CYIL 3 ȍ2012Ȏ Those draft articles provoked an extensive debate in the Drafting Committee, which led to their substantive reformulation. The Commission subsequently took note of five draft articles provisionally adopted by the Drafting Committee, relating to forms of cooperation, offers of assistance, conditions on the provision of external assistance, facilitation of external assistance and the termination of external assistance. 11 Unfortunately, it was not possible for the ILC to adopt those draft articles because of the lack of commentaries thereto. 4.3 Immunity of State officials from foreign criminal jurisdiction Concerning this topic, which has been on the programme since 2006, the Commission appointed Ms. Concepción Escobar Hernández as Special Rapporteur to replace Mr. Roman Kolodkin, who was no longer a member of the Commission. During the second part of the 2012 session, the ILC considered the preliminary report of the new Special Rapporteur, which provided an overview of the work by the previous Special Rapporteur, as well as the debate on the topic in the Commission and in the Sixth Committee of the General Assembly. It also addressed the issues to be considered during the present quinquennium, focusing in particular on the distinction and relationship between, and basis for, immunity ratione materiae and immunity ratione personae , the distinction and the relationship between the international responsibility of the State and the international responsibility of individuals and their implications for immunity. The Special Rapporteur in her report also addressed the scope of immunity ratione personae and immunity ratione materiae , and the procedural issues related to immunity, and she gave an outline of the work plan. The debate in the plenary revolved around the methodological and substantive issues highlighted by the Special Rapporteur in the preliminary report. In particular, the debate revealed divided views on the system of values and trends of contemporary international law and the implications for immunity of State officials. Although most members of the Commission seemed to support the limitation of the scope of immunities ratione personae to the so-called “troika” (Heads of States, Heads of Government and ministers of foreign affairs), some different views were also expressed. The debate also addressed the concept of officials, official acts, functional immunity, as well as the scope of and possible exceptions from immunity ratione materiae . On some occasions, references were made to recent judgments of the ICJ. 12 In short, this topic may become the most important one during the new quinquennium of the Commission. As there has been a generally positive reaction of the members of the ILC to the preliminary report, the fresh restart of the complicated topic under the direction of the new Special Rapporteur seems to be promising. Hopefully, it could be completed, in the first reading before the end of the quinquennium. 11 See doc. A/CN.4/L.812 (2012). 12 See, in particular, Jurisdictional Immunities of the State (Germany v. Italy, Greece intervening), Judgment of 3 February 2012, ICJ Reports 2012.

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