The Draft Articles on Crimes Against Humanity and Immunities of State Officials: Unfinished Business?

Abstract

The Draft Articles on Crimes Against Humanity adopted by the International Law Commission (ILC) on first reading in 2017 contain a clause stating that the official position of a defendant is not a ground to exclude his or her criminal liability, in line with the one included, for instance, in the Genocide Convention. According to this article, this provision shall be retained in the final version of the Draft Articles and should be read as excluding the possibility for state officials suspected of crimes against humanity to invoke immunity ratione materiae before any tribunal. Unfortunately, it seems that the irrelevance of official capacity and the unavailability of functional immunity with respect to allegations of crimes under international law are too often considered as separate notions thus engendering ambiguity on the issue. Therefore, it is regrettable that the different ILC Working Groups and Special Rapporteurs touching on the relationship between immunities of state officials and the prosecution of crimes under international law are working in a compartmentalized manner. On the other hand, the Draft Articles do not contain any provision on immunities ratione personae and, in light of the prevailing interpretation of customary rules, the chances that an incumbent state official enjoying personal immunities who allegedly committed crimes against humanity is brought to trial before any tribunal are almost non-existent. Nonetheless, it would be highly preferable that the Special Rapporteur on Crimes Against Humanity and the ILC take up the issue and at least expose the consequences of upholding immunities ratione personae of state officials in case of allegations of crimes against humanity.