ILC Draft Articles on Immunity of State Officials: Codification or Progressive Development?

The International Law Commission (ILC) has recently concluded its second reading of the Draft Articles on Immunity of State Officials from Foreign Criminal Jurisdiction. Draft Article 7 has received significant attention, as it addresses the controversial question of recognizing exceptions to functional immunity, or immunity ratione materiae. Particularly, this draft Article suggests that immunity of State officials does not apply to the crimes of genocide, crimes against humanity, war crimes, the crime of apartheid, torture, enforced disappearance. It also adds three new crimes including: aggression; slavery; and slave trade.

The controversy over Article 7 stems from the lack of consensus among States as to whether customary international law indeed recognizes such exceptions to functional immunity, and concerning the specific crimes that should be included in such a list. For example, the Philippines, in its comments prior to the second reading, suggested that “any attempt to narrow immunities without foundation in state practice risks undermining legal certainty and the very comity the doctrine seeks to preserve.” Vietnam also adopted a critical approach in its comments prior to the second reading and encouraged the Commission “to refrain from including provisions such as draft Article 7—that lack sufficient and longstanding State practice to support them.” Similarly, Germany noted in its comments that “we sense significant doubts regarding the customary nature of the amended list which might slow down the further development of this topic.”

The controversy surrounding draft Article 7 risks undermining the legal certainty of the specific rule enumerated in the article, and more broadly the authoritative status of the project as a whole. The Special Rapporteur of the project, Mr. Grossman Guiloff, indicated that modifications to the Articles following the first reading would be made only where there were “compelling justifications,” whether due to new developments in international law or the need for clarification. However, as we will discuss below, these “new developments” fail to present a widespread geographical representation, nor do they consider views of regional bodies who addressed the matter. Furthermore, they rely on case law that does not address exceptions to immunity.

The current fragmented state of affairs raises the question of whether the project forms a codification of existing law or a progressive development of international law. Against this backdrop, this post will discuss three concerns that arose during the reading: procedural constraints that interfered with the process; methodological issues; and substantive legal challenges.

Background: Historical Context and State Views

The ILC first placed the topic of immunity of State officials from foreign criminal jurisdiction on its agenda during 2007. Since then, armed conflicts have been on the rise, and so has increased reliance on universal jurisdiction, for example in cases linked to the Russia-Ukraine war and the Israel-Hamas war. This process indicates the growing importance of resolving open questions concerning the rules governing immunity of State officials, and particularly of the controversial question of exceptions to immunity ratione materiae.

Notwithstanding decades of discussion on the topic, there is no common understanding of the status of draft Article 7. As such, the United States emphasized that “the Commission should work by consensus on this difficult topic given the serious issues it implicates and the importance of State practice” (para. 32). Saudi Arabia went further and suggested that the lack of a consensus over the crimes cited in draft Article 7 “could open the door to an expanded interpretation of these crimes and thus lead to an increase in arbitrary accusations against officials of foreign States, creating serious tensions in international relations.”

On a broader level, some States view the exceptions to immunity in Article 7 as reflecting evolving custom, or at the least an evolving one, which develops in view of the growing importance of advancing accountability for serious violations of international law (Austria, Chile, the Czech Republic, Liechtenstein, Lithuania, Luxembourg, Romania, Spain and Ukraine) (paras. 25-26). In contrast, other States do not recognize this article as reflecting either existing custom or a developing one (Brazil, Israel, Japan, the Russian Federation, Saudi Arabia, the United Arab Emirates, United States). The contradicting views call into question the ILC’s assertion that there is a trend toward accepting exceptions to immunity ratione materiae for the most serious international crimes (para. 83).

Indeed, the ambiguous status of this draft article raises concern. For example, Australia urged the Commission, in its statement regarding the second reading, to clarify whether the project on State officials immunity reflect existing rules of customary international law or a proposal for the progressive development of the law, while the United Arab Emirates asserted that the current state of customary international law does not support the existence of exceptions to functional immunity, and does not provide a sufficient basis to consider this issue as ripe for progressive development. Similarly, Egypt argued that draft Article 7, in its current form, is flawed and, as such, it could have unintended consequences that could undermine the administration of justice.

The flux of State views indicates the importance of legal certainty for the possible future impact of this project. As noted above, specific concerns arise in relation to the limited geographical range of case law, insufficient weight given to regional judicial bodies, and the lack of discussion of exceptions to immunity in domestic rulings relied upon. Accordingly, the following sections will discuss these issues as they manifested themselves during the second reading.

Procedural Constraints

During the second reading, which represents an advanced stage in the process, the ILC faced a liquidity crisis of an unprecedented nature in its history. That crisis shortened the session from twelve weeks to five. As a result, each member of the Commission was allocated a mere fifteen minutes to deliver a statement in plenary meetings. The Chair acknowledged that this dense timetable would hinder progress and warned that the Commission “would not make anywhere near the progress in its work that it had expected to make.” Moreover, due to a lack of time, the Bureau of the ILC recommended canceling visits by representatives of regional bodies, thereby limiting the ability to receive and incorporate their perspectives. This combination of limited time and reduced external input raises concerns, as reflected in ILC member Rodrigo Bandeira Galindo’s view regarding the comprehensiveness of the debate at this critical stage, as well as the representativeness and inclusiveness of a process that aims to reflect a global perspective (a topic we will delve into in the coming part).

In our view, these constraints impact the normative authority of the project. The ILC needs adequate resources to maintain its authority in codifying customary law or progressively developing the law. While operating under budgetary strain does not invalidate its work, it raises questions that were also addressed by members of the Commission itself. For example, Mathias Forteau, a member of the Commission, criticized the fact that the financial crisis justified changes to working methods that reduced both the quantity and the quality of plenary debate. In doing so, according to Forteau, the Committee was unable to apply the necessary rigor in accordance with its regular working methods.

Methodological Shortcomings

Special Rapporteur Guiloff stated that the methodology used in the Commission’s work relied on extensive written and oral comments provided by over sixty States, which included reference to national jurisprudence and legislation since 2022. He indicated these comments helped clarify or reinforce limitations on immunity for serious international crimes.

Under Article 38(1)(b) of the International Court of Justice (ICJ) Statute, and the ILC’s own Draft Conclusions on Identification of Customary International Law, a customary rule may be recognized when there is both State practice and opinio juris. As the ICJ described in Military and Paramilitary Activities in and Against Nicaragua, State practice requires a certain degree of consistency and generality, and must be accompanied by opinio juris. As noted by Professor Malcolm Shaw, “If a proposition meets with a great deal of opposition, then it would be an undesirable fiction to ignore this and talk of an established rule” (p. 78).

During the Commission’s previous session, Galindo drew attention to the limited geographical range of case law relied upon during the first reading, noting that they reflect predominantly cases from developed nations. He identified a similar pattern in the recent analysis of Special Rapporteur Guiloff, and warned that this might create the misleading impression that the cited practice is genuinely widespread.

Galindo suggested that the commentary should explicitly acknowledge this problem because it directly affects the assessment whether a “general practice” can be said to exist. We find this line of argument compelling as the Commission’s methodology risks privileging selective evidence over an assessment that incorporates both supporting and opposing practice. This approach might blur the line between codification, a systematic consolidation of existing law to ensure stability, and progressive development which implies both the addition of new rules and the modification of existing ones.

Another relevant issue, in terms of consistency and generality, is that the Commission does not appear to give significant weight to the view presented by regional judicial bodies, notwithstanding that those bodies provide discussion of the question of immunity and the existence of exceptions to it. Of note, the European Court of Human Rights judgment in Sassi and Benchellali v. France (non-official English translation) reaffirmed the absence of a jus cogens based exception to immunity and held that immunity ratione materiae remains intact despite serious allegations. Likewise, the African Court on Human and Peoples’ Rights in Ligue Ivoirienne des Droits de l’homme v. Côte d’Ivoire ruled that immunity cannot be set aside simply by invoking the gravity of the crime, focusing instead on whether immunity would lead to de facto impunity where no trial is possible in the official’s home State.

These omissions challenge the ILC’s assertion that there is indeed a “discernible trend” toward restricting immunity for such crimes (for discussion, see former ILC member Sean Murphy). This concern was also expressed by Singapore in its comments prior to the second reading of the ILC, saying that “We reiterate that there is insufficient State practice and opinio juris to support a proposition that exceptions to immunity of State officials exist under international law … or to conclude that there is a trend towards such exceptions to immunity.” Committee member Forteau also wondered why the Commission’s report made no mention of the European Court of Human Rights practice that consistently upheld immunity even in cases involving international crimes.

Substantive Legal Challenges

The domestic rulings relied upon by Special Rapporteur Guiloff provide limited support for a customary exception to immunity. In particular, Forteau noted that in all criminal cases presented as corresponding to the list in draft Article 7, the report did not indicate whether the home State invoked immunity for the defendant. In fact, in some of the cases mentioned, in addition to the fact that immunity was not invoked by the State of the official, the official was not even present in the forum State, and in others, the trial is still ongoing. Although invocation of immunity is not a precondition for its application, according to draft Article 11, the absence of any formal argument or judicial discussion precludes the inference that States have accepted a customary rule providing for exceptions to immunity in relations to the crimes listed in draft Article 7. As such, the silence can be understood as neutral rather than as evidence that States reject immunity for certain crimes.

Of interest, Forteau drew on the reasoning in Certain Questions of Mutual Assistance in Criminal Matters (para.196), where the ICJ explained that the official’s State must notify the forum State if it intends to invoke immunity. Under this approach, a State that invokes immunity in a foreign court assumes responsibility for the official’s internationally wrongful act, thereby ensuring accountability and limiting impunity, while avoiding treating non-invocation as evidence that immunity is inapplicable. Under this logic, the cases cited by Special Rapporteur Guiloff do not establish a customary rule denying immunity ratione materiae for international crimes. Rather, they remain inconclusive, as they neither addressed nor examined the question of immunity in their legal discussion. Similarly, former ILC member Murphy questioned whether sufficient State practice and opinio juris support a trend recognizing the exceptions enumerated in draft Article 7.

As noted by Philippa Webb, while “the quest for coherence is admirable … a systemic approach can also go too far—stretching analogies and ignoring differences, seeing a trend where there is none.” The ILC is tasked with the important duty of harmonizing different perceptions and striking a balance between the important considerations at play. In its recent report, the Drafting Committee recognized the need to be mindful of the sensitivity of the subject matter and to maintain a delicate balance between the principle of sovereign equality and the need for accountability for the most serious international crimes. In line with the ILC commentary, such a balance,

will ensure that immunity fulfils the purpose for which it was established (to protect the sovereign equality and legitimate interests of States) and that it is not turned into a procedural mechanism to block all attempts to establish the criminal responsibility of certain individuals (and in our context, State officials) arising from the commission of the most serious crimes under international law (p. 234).

Given that, we are concerned that the ILC will adopt a text that might undermine the unifying role it seeks to play in international law. As Forteau and others observed, draft Article 7 has already deeply divided States, and the Commission had a responsibility at the second reading to seek for a more consensual solution than the one adopted at the first reading, even if full consensus is unattainable. Indeed, if the final text is accepted with strong objections, it may intensify polarization and distance State positions from one another rather than fostering convergence.

Conclusion

In this post, we examined the second reading of the ILC’s draft Article by assessing both the procedural conditions under which the Commission operated and the methodology underlying the work of the Committee. The unprecedented procedural constraints of the second reading, marked by a shortened session, limited speaking time, and reduced external engagement ultimately came in the way of the ability to conduct meaningful deliberation and raise concerns about inclusiveness and the normative authority of the Commission’s work. Additionally, the Commission suffered methodological shortcomings in its invocation of customary international law. In particular, it selectively relied on State practice and engaged insufficiently with opposing opinio juris and regional jurisprudence. Taken together, all the above point to the need for greater caution before presenting draft Article 7 as a codification of customary international law.

The process of the ILC will continue in the next session of the Committee starting on April 27, 2026. Looking ahead, Commission member Forteau and States like Brazil, the United Arab Emirates, Norway (on behalf of the Nordic countries), Spain and the United Kingdom, suggest the need to promote a new treaty-based rule rather than progressive development of a contested norm. Taking this view in consideration, we commend the Special Rapporteur for recommending that the draft Articles be brought to the attention of the General Assembly for States to take note and, when appropriate, use it as a basis for negotiating a treaty (para. 17). However, there are still improvements that can be made to the suggested framework.

In particular, the ILC could include safeguards for political misuse or arbitrariness in prosecution through mechanisms like complementarity (namely, preference to the host State), provide with guidance for situations of competing legal jurisdictions and potentially incorporate a duty to negotiate before initiating prosecution. Such measures can be useful to safeguard friendly relations and promote legal validity and stability. Hopefully, a potential new convention introduced by the ILC could bypass the need to reconcile conflicting State views and provide an opt-in framework, advancing the imperative of accountability, while fostering enhanced international cooperation in an increasingly polarized era.

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Photo credit: U.S. Army, Sgt. Nathan Arellano Tlaczani