CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ THE WORK OF THE INTERNATIONAL LAW COMMISSION AT THE BEGINNING … Drafting Committee. Although the majority of members supported its referral, some of them expressed doubts or a lack of satisfaction with the content of draft article 7, its justification by State practice or the fact that the Special Rapporteur had not yet presented the report on procedural aspects of immunities. Upon its consideration of the report of the Drafting Committee, 21 the ILC voted to adopt 22 draft article 7, an annex to the draft articles and a footnote to two of its headings. 23 Eventually, the last day of the session, the Commission also adopted the relevant chapter of its report with commentaries to draft article 7. It fair to signal that draft article 7 underwent significant changes reflecting the long and difficult debate in the Drafting Committee. First, draft article 7 kept just the first paragraph dealing with crimes under international law in respect of which immunity ratione materiae shall not apply, while dropping the reference to immunity ratione personae (para. 2) and a without prejudice clause (para. 3). Next, draft article 7, para. 1, does not any longer include crimes of corruption and the so-called territorial tort exception, but limits itself to a slightly enlarged list of crimes under international law. 24 Finally, a new para. 2 was adopted to explain that, for the purposes of the present draft article, the crimes under international lawmentioned above are to be understood according to their definition in the treaties enumerated in the annex to the present draft articles. The commentaries to draft article 7 explain not only the actual scope of exception and the selected crimes under international law but also why it was not necessary to include other exceptions originally proposed by the Special Rapporteur. Yet some members advanced also other crimes, such as the crime of aggression, while some other members were against draft article 7 as adopted. Nevertheless, draft article 7 represents a potential contribution to the progressive development of international law. One can only hope that the next report will bring the kind of procedural provisions and safeguards which will also satisfy at least certain concerns of some members of the Commission who expressed doubts about the present form of 3. Paragraphs 1 and 2 are without prejudice to: (a) Any provision of a treaty that is binding on the forum State and the State of the official, under which immunity would not be applicable; (b) The obligation to cooperate with an international tribunal which, in each case, requires compliance by the forum State. 21 See doc. A/CN.4/L.893 (2017). 22 Result of the vote: 21 votes in favour of draft article 7; 8 votes against; one abstention. Many members made explicative statements before or after the vote. 23 The footnote reads as follows: “The Commission will consider the procedural provisions and safeguards applicable to the present draft articles at its seventieth session.” This is a kind of placeholder that will be removed once the Commission adopts the procedural provisions and safeguards. Its purpose is to signal to readers, including national judges, that the draft articles have not yet been completed. 24 A/CN.4/L.893 (2017), p. 1: “Immunity ratione materiae from the exercise of foreign criminal jurisdiction shall not apply in respect of the following crimes under international law: (a) crime of genocide; (b) crimes against humanity; (c) war crimes; (d) crime of apartheid ; (e) torture; (f) enforced disappearance.”

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