Immunity Ratione Materiae of State Officials from Foreign Criminal Jurisdiction: Where is the State Practice in Support of Exceptions?

This essay, a contribution to an AJIL Unbound symposium on “The Present and Future of Foreign Official Immunity,” considers the adoption in 2017 by the U.N. International Law Commission of a draft article (and annex) for its project on immunity of State officials from foreign criminal jurisdiction. Draft Article 7 identifies six “crimes under international law in respect of which immunity ratione materiae shall not apply”: genocide; crimes against humanity; war crimes; crime of apartheid; torture; and enforced disappearance. Given the divergences within the Commission when considering and adopting draft Article 7, it is difficult to conclude that the Commission is expressing a view that draft Article 7 reflects lex lata. But there is a further reason to doubt its status as lex lata: the lack of State practice – let alone widespread, representative and consistent State practice – in support of denying immunity for those crimes under customary international law. At best, Article 7 might be regarded as a proposal by the Commission for a new rule that could be embodied in a treaty, which States might choose to accept or reject