CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ THE WORK OF THE INTERNATIONAL LAW COMMISSION AT THE FINAL YEAR… term of office. Third, the cessation of immunity ratione personae is without prejudice to the application of the rules of international law concerning immunity ratione materiae . 61 In turn, PartThree concerns immunity ratione materiae from foreign criminal jurisdiction. It includes three draft articles. Article 5 does not include any list of State officials who enjoy this kind of immunity, instead it refers to “State officials acting as such”. This emphasizes the functional nature of immunity ratione materiae . 62 Next, Article 6 fine tunes the scope of this immunity. State officials enjoy immunity ratione materiae only with respect to acts performed in an official capacity. Such immunity continues to subsist after the individuals concerned have ceased to be State officials. 63 By far the most important provision, which caused the main controversy within the Commission and was provisionally adopted by vote in 2017, is Article 7. It provides for certain limitations and exceptions to immunity ratione materiae . It says that “immunity ratione materiae from the exercise of foreign criminal jurisdiction shall not apply in respect of the following crimes under international law…”. 64 Paragraph 2 adds that the above-mentioned crimes under international law are to understood according to their definitions in the treaties in the annex to the draft articles. Part Four deals with the procedural provisions and safeguards to be applied in connection with the immunity of State officials from foreign criminal jurisdiction. Article 8 defines the scope of application of Part Four to make it clear that the procedural provisions and safeguards concern any of the draft articles contained in Part Two and Part Three. 65 Article 9 concerns the obligation to examine the question of immunity from criminal jurisdiction when the authorities of forum State seek to exercise or do exercise criminal jurisdiction over an official of another State. 66 Article 10 concerns the notification that the forum State must provide to the State of the official. 67 Article 11 addresses the issue of invocation of immunity, which is the right of the State of the official. 68 Article 12 deals with the waiver of immunity; it includes the recognition of the right of the State of the official to waive immunity and the procedural aspects relating to the form of waiver. 69 Article 13 provides that both the forum State and the State of the official may request information from each other. Article 14 is one of the most important procedural safeguards because it concerns the determination of immunity, which means the decision on whether or not immunity applies in a particular case. Article 15 provides for the possibility of a transfer of criminal proceedings to the State of the official and regulates the conditions under which this may occur. 70 Article 16 concerns fair treatment of the State official in the forum State. Article 17 provides for consultations between the forum State and the State of the official. 61 Ibid., p. 221. 62 Ibid., p. 225. 63 Ibid., p. 226. 64 Paragraph 1 then includes the list of crimes: (a) crime of genocide; (b) crimes against humanity; (c) war crimes; (d) crime of apartheid; (e) torture; and (f ) enforced disappearance. (ibid., p. 229) 65 Ibid., p. 242. 66 Ibid., pp. 243–244.

67 Ibid., p. 247. 68 Ibid., p. 252. 69 Ibid., p. 255. 70 Ibid., pp. 261–271.

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