CYIL vol. 13 (2022)

PAVEL ŠTURMA CYIL 13 ȍ2022Ȏ Principle 24 aims at encouraging relevant actors to cooperate in order to ensure that environmental assessments and remedial measures can be carried out in post-conflict situations. 52 Principle 25 (Relief and assistance) recommends States to take appropriate measures aimed at repairing and compensating environmental damage caused during armed conflict, where the source of such damage is unidentified or reparation is otherwise not available. 53 Principle 26 provides that parties to an armed conflict shall seek to remove or render harmless toxic or other hazardous remnants of war under their jurisdiction or control that are causing or may cause damage to the environment. 54 Finally, principle 27 deals with remnants of war at sea. 55 2.3 Immunity of State officials from foreign criminal jurisdiction With respect to this topic, the Commission had no new report of the Special Rapporteur Ms. Concepción Escobar Hernández at the present session. However, the Drafting Committee continued its consideration of the remaining draft articles referred to it previously by the Commission, as contained in the second 56 and, in particular, in the seventh and eighth reports 57 of the Special Rapporteur. On 3 June 2022, the Commission received and considered the report of the Drafting Committee, 58 and adopted the draft articles on immunity of State officials from foreign criminal jurisdiction on its first reading. Next, on 3 August 2022, the Commission also adopted the commentaries to the draft articles. The draft articles are divided into four parts. The introductory part comprises Articles 1 and 2 on the scope and definitions. Article 1 includes three paragraphs. The first one provides that the draft articles “apply to the immunity of State officials from the criminal jurisdiction of another State”. The second explains that the draft articles are without prejudice to the immunity from criminal jurisdiction enjoyed under special rules of international law (persons connected with diplomatic mission, consular posts, special missions, international organizations, and military forces of a State). Finally, the draft articles “do not affect the rights and obligations of State Parties under international agreements establishing international criminal courts and tribunals as between the parties to those agreements”. 59 This provision is a result of debate on a draft Article proposed in the eights report of the Special Rapporteur. Part Two of the draft articles addresses immunity ratione personae , which applies to the limited number of the high-level State officials. Article 3 provides that “Heads of State, Heads of Government and Ministers for Foreign Affairs enjoy immunity from the exercise of foreign criminal jurisdiction”. 60 Article 4 then deals with the scope of immunity ratione personae from the temporal and material perspectives. First, the above-mentioned officials enjoy the personal immunity only during their term of office. Second, such immunity covers all acts performed, whether in a private or official capacity, by those persons during or prior to their 52 Ibid., p. 178. 53 Ibid., pp. 180–181.

54 Ibid., p. 183. 55 Ibid., p. 185. 56 UN doc. A/CN.4/661. 57 UN doc. A/CN.4/729 and A/CN.4/739. 58 A/CN.4/L.969. 59 Report of the International Law Commission, 2022, ibid., pp. 196–197. 60 Ibid., p. 213.

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