As International Law Commission Report Review Continues, Sixth Committee Delegates Debate Legal Parameters for State Officials’ Immunity, Protection of Atmosphere
As the Sixth Committee continued its review of the International Law Commission’s report, delegates completed the first cluster of topics from the report and commenced their consideration on the second, tackling the complex nature of the immunity of State officials, as well as the legal aspects of the protection of the atmosphere.
Introducing the second cluster of the Commission’s report (document A/72/10), George Nolte, its Chair, said that on “Protection of the atmosphere”, draft guideline 9 focused on the “interrelationship among relevant rules”. That guideline set out techniques for addressing the tensions between the rules of international law relating to the protection of the atmosphere. Paragraph 1 of that guideline addressed possible conflicts between different international rules and underscored the principles of harmonization that could be found in the Vienna Convention on the Law of Treaties.
However, as the Commission focused on the topic, “Immunity of State officials from foreign criminal jurisdiction”, he highlighted the debate surrounding draft article 7 which addressed crimes under international law in which immunity ratione materiae did not apply. That proposed draft article had elicited strong, diverse views among the Commission members. While some had supported the Special Rapporteur’s position on the practice of States and their courts, which demonstrated a turn towards the exceptions to the immunity of State officials, others had contested that evidence provided in the Special Rapporteur’s fifth report was supporting such a trend. Rather, they expressed the view that draft article 7 did not codify existing law.
The contested text was then referred to the Drafting Committee, which decided to draft the article with some amendments, Mr. Nolte said. In a departure from its procedure of adopting by consensus, the Commission adopted the text by a recorded vote of 21 in favour to 8 against, with 1 abstention. In the text, paragraph 1 provided a list of crimes under international law to which immunity ratione materiae from the exercise of foreign criminal jurisdiction should not apply.
The representative of Norway, also speaking for the Nordic countries, voiced support for draft article 7, underlining the importance of the inclusion of genocide, crimes against humanity and war crimes in that list. Furthermore, he spoke of the irrelevance of official capacity in relation to individual responsibility for the most grave of international crimes, which was recognized in the Nuremburg Charter. That notion, he said, should be regarded as customary international law.
Portugal’s delegate, commenting on draft article 7, cautioned that immunity should not apply to the crime of aggression. That was a crime recognized in the Rome Statute and one of the most serious crimes of international concern. It was her recommendation that the Commission should revise its position on that matter during the second reading.
Ukraine’s representative, pointing out that his country was suffering from aggression by the Russian Federation, also welcomed the list of crimes included by the Commission in draft article 7, and also voiced support for the approach to use a list of international treaties in order to omit the need to include the Commission’s definitions of the crimes listed in that draft text.
Addressing “Protection of the atmosphere”, the Marshall Islands’ delegate, speaking for Pacific small island developing States underscored the critical importance of the topic for her group. Those members were among those who had contributed the least to global warming but who could be submerged under rising sea levels before the century was over. In addition, the legal implications of sea level rise should be considered by the Commission, as it also led to changes on territorial integrity. That matter was not just urgent, it was long overdue, she stressed.
Austria’s representative also drew attention to the Commission’s commentary which referred to the fact that the World Health Organization (WHO) had included people living in mountainous regions among those particularly vulnerable. In that regard, he noted the contribution of the Alpine Convention and its Protocols as far as his own region was concerned.
Also speaking today were representatives of Mozambique, Bulgaria, Malaysia, Jordan, Timor-Leste, Sudan, Switzerland, Mexico, Australia, Singapore, Peru, India, Japan and Slovenia, as well as the European Union and the Council of Europe.
The Sixth Committee will next meet at 10 a.m. on Friday, 27 October, to continue its consideration of the International Law Commission Report.
Statements on Cluster I
ANTONIO GUMENDE (Mozambique), on “Crimes against humanity”, stressed that those crimes were the most serious of concern to the international community. Their effective prosecution must be ensured by all, with measures being taken at the national and international levels. In addition, international cooperation in all modalities must be enhanced, including with respect to extradition and mutual legal assistance. His county was determined to cooperate and to lend its full support to the current world movement for preventing and combating crimes against humanity in order to put an end to the impunity of perpetrators of those crimes and to contribute to a better world of peace and security. He also underscored the duty of every State to exercise its criminal jurisdiction with regards to crimes against humanity.
DANAIL CHAKAROV (Bulgaria) said of the topic of “Crimes against humanity” that he was very pleased with the special focus given on victims and other affected persons by the work of the Special Rapporteur and the Drafting Committee of the International Law Commission (ILC). Every State should take the necessary measures to criminalize crimes against humanity in its internal legislation. Furthermore, the incorporation of that obligation in a multilateral treaty was an important step forward in dealing with those atrocities and towards ending impunity worldwide. He also noted that the draft articles filled in the gaps in the current jurisdiction system.
Addressing “Provisional application of treaties”, he expressed satisfaction with the presented guidelines. Those texts consolidated the dispersed contemporary State practice and conformed to the relevant provisions of the Vienna Convention on the Law of Treaties and the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations. Additional clarification of that topic was needed due to the specific nature of those provisions, which would virtually come into force before the rest of the treaty itself. There was considerable misunderstanding on that subject among practitioners, which would mean that the current and future work of the Commission was especially relevant, and he urged the ILC to further elaborate on the topic.
LIYANA MUHAMMAD FUAD (Malaysia), commenting on “Provisional application of treaties”, called for caution in discerning the scenarios identified in the study of the topic. Those raised the question of the relationship between provisional application and other provisions of the 1969 Vienna Convention and the provisional application of treaties with regard to the practice of international organizations. Malaysia’s domestic law did not provide for the provisional application of treaties. Her country had been conscientious about legislating appropriate domestic law before ratifying any treaty to ensure that its obligations under those treaties were carried out. Offering several comments regarding the draft guidelines, she noted that while draft guideline 9 stated that the internal law of a State might not be invoked as a justification for failure to perform international obligations arising from provisional application, guideline 11 allowed some flexibility in provisional application of a treaty in terms of internal law or rules of States.
VOLODYMYR PAVLICHENKO (Ukraine), emphasizing “Crimes against humanity”, stated that his country was suffering from the aggression by the Russian Federation. Research conducted by the International Partnership for Human Rights field mission in Ukraine had indicated that both war crimes and crimes against humanity had been committed during the ongoing conflict. Establishing a universal framework for crimes against humanity had critical importance, given the fact that there was no global convention dedicated to preventing and punishing those crimes and promoting inter‑State cooperation. Crimes against humanity were likely no less prevalent than genocide or war crimes, he said, voicing hope that the draft articles would become a convention focused on prevention and punishment.
Addressing “Protection of the environment in relation to armed conflicts”, he said that experience showed that armed conflicts not only caused severe human suffering, but also widespread destruction and degradation of the environment. Substantial work had been done, in particular, on the provisionally adopted draft principles 4, 6 to 8, and 14 to 18, by the Commission, which had formed a good basis for future discussions.
Regarding “Immunity of State officials from foreign criminal jurisdiction”, he noted that national case law was not uniform in its approach. There had also been instances where domestic courts ruled to uphold immunities due to political motivations. He welcomed the list of crimes included by the Commission in draft article 7, and also voiced support for the approach to use a list of international treaties in order to omit the need to draft the Commission’s definitions of the crimes listed in that draft article.
YAZAN BAZADOUGH (Jordan), voicing support for a convention on “Crimes against humanity”, said that it was essential to create a legal mechanism to ensure the prevention and punishment of such crimes. The draft convention would not contravene the Rome Statue; rather it would allow States Parties to fulfil their obligations under that Statute. However, under international law, he reminded the Committee it was not States that committed crimes, though they carried responsibility for crimes committed by their nationals, such as Heads of States. Also expressing support for the aut dedere aut judicare principle, he proposed establishing a fund for the purpose of providing reparations for victims.
FONSECA DOS SANTOS PEREIRA (Timor‑Leste) said international law was crucial for sustainable development as well as peace and security. The legal system of his country was keeping abreast of international law, with ratified treaties and agreements becoming part of the national legislation.
On “Crimes against humanity,” he said that as a member of the Rome Statute, his country supported all related international legal instruments. Noting that extraditions should be in accordance with reciprocal agreements, he said that the judicial effort involved in the draft articles was a significant contribution for ending impunity at the international level. He also voiced support for elaborating the articles into a legally binding instrument.
MARTA REQUENA, the Council of Europe, regarding “Succession of States in respect of State responsibility”, drew attention to its Pilot Project on State practice regarding State succession and issues of recognition. The Secretariat’s 2016 memorandum on information on treaty‑based monitoring mechanism was very comprehensive. The European Court of Rights was one such regional monitoring mechanism. In its case law, it had dealt with the issue of extensive time lapses between the commission of crimes against humanity and their prosecution.
Turning to “Provisional application of treaties,” she suggested that the memorandum reviewing State practice in respect of treaties deposited or registered in the last twenty years with the United Nations should include some examples of provisional application of specific treaty provisions from the long‑standing practice of the Council of Europe.
SEAN MURPHY, Special Rapporteur for “Crimes against humanity”, said that he thought that the debate on that subject had been exceptional in nature and had demonstrated the strong and clear legal minds that were operating in the Sixth Committee. He had taken careful notes through the debates of the observations by delegates. He observed that there had been strong support for the work of the Commission, as well as suggestions to improve on the 15 draft articles, adding that the Commission would welcome written comments on the full set of draft articles.
Introduction to Cluster II
GEORGE NOLTE, Chair of the International Law Commission, said on “protection of the atmosphere” that draft guideline 9 addressed “interrelationship among relevant rules” and set out various techniques in international law for addressing tensions between rules of international law relating to the protection of the atmosphere and other relevant international rules. That draft guideline drew on the 2006 conclusions reached by the Study Group on fragmentation of international law, which the Commission commended to the attention of the General Assembly.
Paragraph 1 addressed the identification, interpretation and application of relevant rules, he noted. It aimed at “avoiding conflicts” between rules, including the rules of international trade and investment law, the Law of the Sea and international human rights law. That paragraph also drew attention to the principles of harmonization and systemic integration, and to articles 30 and 31, paragraph 3 (c) of the Vienna Convention on the Law of Treaties.
He went on to say that paragraph 2 encouraged States, when engaging in negotiations on the creation of new rules, to “endeavour to do so in a harmonious manner”. Paragraph 3 provided that “special consideration be given to persons and groups particularly vulnerable to atmospheric pollution and atmospheric degradation”. The Commission had not included in that text a reference to a “principle of mutual supportiveness”. The commentary on the text explained that the preponderance of support for that principle originated from the law of the World Trade Organization.
Addressing “Immunity of State officials from foreign criminal jurisdiction,” he said that the Commission had conducted an intense and thorough debate on the question of exceptions from immunity from foreign criminal jurisdiction. In particular, it had looked at whether an exception from immunity ratione materiae from foreign criminal jurisdiction was recognized under customary international law if a foreign State official had committed certain crimes, such as genocide, torture or enforced disappearance, among others. It also looked at whether there was at least a trend to that effect and whether such an exception would be desirable as progressive development. The report of the Special Rapporteur, together with the proposed draft article 7, elicited diverse and often opposing views.
He went on to say that some members had supported the Special Rapporteur’s position that the practice of States and their courts demonstrated a trend towards the limitations and exceptions to the immunity of State officials, as proposed in draft article 7, and had agreed with the systemic approach that had been adopted in the report. However, other members had contested that evidence provided in the fifth report was supporting such a trend. They expressed the view that draft article 7 did not codify existing law, nor did it necessarily express a desirable progressive development of the law. Several members considered that the issue of limitations and exceptions to immunity needed to be treated together with procedural aspects of immunity safeguarding against possible abuse in national criminal proceedings. Others maintained that those aspects could be dealt with separately.
The Commission decided after a vote to end the discussion, and to refer draft article 7 to the Drafting Committee, he continued. That Committee arrived at a decision to propose draft article 7 with some amendments. Eventually, the Commission adopted the text of draft article 7 by a recorded vote of 21 in favour, 8 against and 1 abstention. Since the ILC usually adopted texts by consensus, in that case, a number of members of the Commission had made statements in explanation of their votes. The text and commentaries of draft article 7, as adopted by the Commission, are contained in the report. The draft article, paragraph 1, provided a list of crimes under international law to which immunity ratione materiae from the exercise of foreign criminal jurisdiction should not apply.
In advance of the preparation of the sixth report on the procedural aspects of the immunity of State officials, the Special Rapporteur had conducted open‑ended informal consultations, he noted. The procedural aspects were essential. The Commission would appreciate being provided by States with information by 15 January 2018 on their national legislation and practice, with reference to the invocation of immunity and waivers of immunity, among other matters.
Statements on Cluster II
AMATLAIN E. KABUA (Marshall Islands), speaking for the Pacific Small Island Developing States, said that the Commission’s work on the “Protection of atmosphere” was of critical importance to her group, whose members were among those who contributed the least to global warming but were under threat of being submerged under rising sea levels within the century. Noting that paragraph 33 welcomed proposals for possible topics stating that the Commission should consider topics that reflected pressing concerns of the international community as a whole, she said the legal implications of sea level rise was one such topic and required consideration of questions which could be unique to atoll nations and other low‑lying small island developing States. It was important to consider, for example, the effect of sea level rises on territorial integrity. That was not just urgent, it was long overdue, she stressed.
LUCIO GUSSETTI, the European Union delegation, on the “Protection of the atmosphere” said that, with regard to draft guidelines 1‑7, in order for there to be a clear distinction between the programmatic guidelines on the one hand and the legally binding international agreements on the other hand, it would be preferable not to include in the guidelines concepts or wordings that were in conflict with existing international agreements on environmental law.
Relating to the interrelationship between the law of the atmosphere and international trade and investment law, he also said that the fourth report contained a number of observations regarding the concepts of mutual supportiveness and sustainable development. The report referred to the Comprehensive Economic and Trade Agreement between Canada, of the one part, and the European Union and its member States, of the other part. That stressed the need to enhance the mutual supportiveness between trade and environment policies, rules and measures, and explicitly acknowledges the right to regulate environmental issues and the shared responsibilities in implementing the Paris Agreement.
HELGE SELAND (Norway), also speaking for the Nordic countries (Denmark, Finland, Iceland and Sweden), said that on “Immunity of State officials from foreign criminal jurisdiction”, no rules of immunity should apply in national jurisdictions for the gravest international crimes. He encouraged the Commission to find balance between the fight against impunity for serious international crimes within the sphere of national jurisdictions and with a need to preserve a legal framework for stability in inter‑State relations. The irrelevance of official capacity in relation to individual responsibility for the gravest international crimes was recognized in article 7 of the Nuremburg Charter and should be regarded as customary international law. Voicing support for draft article 7 and underlining the importance of including genocide, crimes against humanity and war crimes, he also supported paragraph two and the inclusion of a “without prejudice” provision. Recognizing the limitations and exceptions related to the procedural aspects of immunity, procedural safeguards applicable to decisions made by independent prosecutors were important and the rule of law was important to avoid politically motivated proceedings or illegitimate exercise of jurisdiction.
HELMUT TICHY (Austria), commenting on “Protection of the atmosphere”, said the three new preambular paragraphs reflected situations and effects generally recognized and already addressed in discussions on the Law of the Sea. In addition, draft guideline 9(2) could be understood as requiring new rules to be compatible with all existing rules of international law. That could impede any new development differing substantially from existing rules. Specific groups mentioned in draft guideline 9(3) not only “may” but rather “should” be included among the particularly vulnerable groups. If inclusion were only optional, they could also be excluded. The ILC commentary referred to the fact that the World Health Organization (WHO) had also included people living in mountainous regions among those particularly vulnerable, drawing attention to the contribution of the Alpine Convention and its Protocols as far as his own region was concerned.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he said clarification was needed regarding the proposed exceptions and limitations of immunity ratione materiae. As well clarification was needed on whether those exceptions and limitations were already reflected in customary international law or were of a more progressive development character. As noted in the Report’s paragraph 109, perpetrators of international crimes should not be allowed to hide behind the cloak of sovereignty to shield themselves from prosecution. However, there was also a clear link between exceptions and limitations to immunity on one side and efficient procedural safeguards on the other. Immunity restrictions could be combined with procedural safeguards to avoid misuse and politically motivated criminal prosecutions. One possible solution would be to create an international mechanism aiming to prevent such misuse. The immunity restrictions could be made conditional upon the establishment of such a mechanism.
ELSADIG ALI SAYED AHMED (Sudan), on the topic of “Immunity of State officials from foreign criminal jurisdiction” said that subjugation to a jurisdiction did not negate immunity of State officials. Referring to the United Nations Convention on Jurisdictional Immunities of States and Their Property of 2004, he stressed that immunity of State officials was a principle of customary international law. Noting that the International Court of Justice had addressed the issue of jurisdiction without arriving at a decision, he also observed that there was some conflict between draft articles 10 and 27 adopted by the Commission.
SUSANA VAZ PATTO (Portugal), addressing “Protection of the atmosphere”, said the impact of atmospheric degradation on society, as well as its prevention, mitigation or reversal, depended on the ability of human communities to change behaviours at political, technological, economic and lifestyle levels. International law should be interpreted and applied according to its relevant principles concerning interpretation and application. The Commission’s current work was, nevertheless, an important opportunity to develop guidelines and promote mechanisms that could lead States to consider adopting common norms, standards and recommended practices in connection with trade and investment law, law of the sea and human rights law.
Regarding “Immunity of State officials from foreign criminal jurisdiction”, she said the Commission must identify existing rules of international law and also embark upon an exercise of progressive development. That development had to consider that immunities were an important tool in conducting foreign relations, but should be interpreted and applied within the context of the current evolution of fundamental human values that had a jus cogens status. Concerning international crimes covered by draft article 7, she stressed that immunity should not apply to the crime of aggression – also recognized in the Rome Statute and one of the most serious crimes of international concern. She called on the Commission to revise its position on that matter during the second reading.
DAMARIS CARNAL (Switzerland), with regards to “Immunity of State officials from foreign criminal jurisdiction”, said that according to the International Court of Justice, a national court would be required to first establish whether a serious offense had been committed to determine whether the State could rely on its immunity from jurisdiction. Or, the mere allegation that a grave offense had been committed would be sufficient to deny immunity. Neither solution was fully satisfactory when it came to criminal proceedings against foreign State officials. In addition, the Commission did not distinguish between the various reasons for which a domestic court came to the conclusion that a State official did not enjoy functional immunity from foreign criminal jurisdiction.
The distinction was important, she emphasized. Whereas the status of proposed exceptions to immunity ratione materiae under customary international law was contested, it was generally accepted that its scope was limited to acts committed in an official capacity. The Commission had also mentioned certain cases in which national courts had tried officials of another State for international crimes without expressly ruling on immunity. Before assessing the relevance of those cases for the purposes of exceptions, it was necessary to clarify whether the immunity existed independently of its invocation by the State or whether the lack of the invocation could be interpreted as an implicit waiver. That point illustrated why it might be necessary to return to the individual draft articles and commentary at a later stage once all procedural and substantive questions had been addressed.
ALEJANDRO ALDAY (Mexico), speaking on “Protection of the atmosphere” and its relation to other laws like the Law of the Sea and human rights laws, said that the guidelines coming from the Commission sought to elucidate that relationship. It was necessary to make clear the scope of the guidelines, vis‑a‑via other multilateral treaties on the environment. Those guidelines were without prejudice to those treaties and principles of international law. In guideline 9 on interrelationship between relevant rules, the text sought to reconcile conflicts between systems. The Special Rapporteur had said there was a corpus of rules on the protection of the atmosphere that could lead to regulatory conflicts with international trade law and international investment law, as well as the Law of the Sea.
Welcoming the debate on “Immunity of State officials from foreign criminal jurisdiction”, he noted that the approved version of article 7 included crimes of apartheid, torture and enforced disappearance within the crimes of international law which constitute an exception to immunity of jurisdiction. Those crimes had unique international legal systems that called upon States to develop domestic measures to adopt internal measures necessary for prevention, repression and sanction. The crime of aggression was not included among those crimes. It was up to courts to determine a prior act of aggression by a foreign State. At no time could corruption be carried out in an official capacity, he said.
SUE ROBERTSON (Australia), commenting on “Immunity of State officials from foreign criminal jurisdiction”, said that State immunity was a basic principle of the international legal order, derived from the even more foundational principle of the sovereign equality of States. The immunity of State officials from foreign criminal jurisdiction was a corollary of State immunity. She recognized that the Commission had already made a valuable contribution on that topic, including through the adoption of a number of draft articles.
However, she said it was regrettable that the Commission had been unable to resolve the issue of limitations and exceptions to the immunity of State officials from foreign jurisdiction by consensus, and that the draft article 7 had been provisionally adopted by a vote. That draft article identified a list of international crimes in respect of which immunity ratione materiae was said not to apply. She also said she shared the concern of those members who voted against the provisional adoption of the draft article that, in its current form, did not reflect any real trend in State practice, still less in existing customary international law.
DAPHNE HONG (Singapore), regarding “Protection of the atmosphere”, said focusing on atmospheric pollution and degradation suffered by the current generation had merit. A reference should be made to it in the preamble. Regarding draft guideline 9, it was questionable if it had practical value; “mutual supportiveness” in paragraph 7 of the commentary was not clearly defined and more of a policy‑making tool than legal principle. She also expressed difficulty with paragraph 12, especially the “disconnect” in application of rules of international law relating to the atmosphere and human rights law. Further consideration was required on whether extraterritorial jurisdiction in respect of human rights obligations should apply in situations of transboundary atmospheric damage.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, she said propositions contained within article 7 could benefit from further consideration, inviting the Commission to reconsider it. While the temporal scope of immunity ratione materiae was not controversial, the material scope had benefited and would still benefit from further study. Following its work on ratione materiae, the Commission might wish to revisit the extension of immunity rationae personae to high officials beyond the troika. Adding that the Commission must avoid proceedings which were politically motivated, she underscored the need to focus on safeguards to ensure that exceptions to immunity ratione materiae were not applied in a subjective manner.
ANGEL HORNA (Peru), commenting on “Protection of the atmosphere”, voiced his country’s commitment to the work of the Commission and thanked the Special Rapporteur on the matter. Highlighting the preambular paragraph of the draft guidelines, he commended it for observing the close interaction between atmosphere and oceans. The effect of climate change on oceans was a topic that warranted further study.
Regarding “Immunity of State officials from foreign criminal jurisdiction” he commended the Special Rapporteur for taking into account State practice as well as international jurisprudence. Noting that the enjoyment of immunity ratione materiae was temporal in nature, he stressed that it was critical to establish a balance between the different values. While sovereign equality of States was a stabilizing factor in international relations, it was crucial to fight impunity. He also drew attention to the importance of using all six official languages in the work of the Commission.
ANIL SHIROLE (India), on “Protection of the atmosphere”, recalled the four additional draft guidelines proposed by the Special Rapporteur, including draft guideline 9 on the guiding principles on interrelationship and draft guideline 11 concerning the Law of the Sea, among others. Regarding draft guideline 9, which was adopted, and given that each field of international law had its own subject matter, scope and conditions, in‑depth study was required to find the relevant and common factors between the protection of the atmosphere and other fields of international law.
Turning to the topic of “Immunity of State Officials from foreign criminal jurisdiction”, he highlighted draft article 7 proposed by the Special Rapporteur and the crimes listed therein that fell outside of the protection of immunity from foreign criminal jurisdiction. That text provided less treaty practice. Furthermore, the widely accepted Vienna Conventions contained no such exceptions to immunity. Underscoring the need to show consistent State and treaty practice to support the exceptions asserted in draft article 7, he also pointed out the importance of the status and the nature of duty being performed by the persons claiming immunity at the time of the offence.
YUKI HIROTANI (Japan), commenting on “Protection of the atmosphere”, welcomed draft guidelines 9 which stipulated the “interrelationship among relevant rules” as a means to avoid fragmentation. Paragraph 1 of the draft guidelines also noted that international law on the protection of the atmosphere and other relevant rules of law should be identified, interpreted and applied to give rise to one set of compatible obligations. Paragraph 3 highlighted the plight of those particularly vulnerable to atmospheric pollution and degradation, he said, voicing appreciating for its stipulation on the obligations of special care for such people with respect to human rights. In addition, the dialogue held with scientists during the ILC’s session facilitated discussion on scientific topics.
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he said there was debate on whether the matter of limitations and exceptions was an established customary international law (lex lata) or development of a new law (lex ferenda). The divergent view could be due to the fact that the fifth report did not provide convincing evidence to support its conclusion. Concerning the list of crimes to which immunity did not apply, he stated more explanation would be needed on the reason for the selection of those crimes. Similarly, it was unclear whether limitations and exception of immunity would be restricted to the linked crimes. The proper balance between State sovereignty and the fight against impunity would require great attention. Hence, the responsibility of States should not be confused with that of individuals. It was important to respect the international legal order based on sovereign equality of States. In regards to discussions on procedural aspects, he expressed hope that the sixth report would provide a rich explanation and references to those issues.
DANIJELA HORVAT (Slovenia), on “Immunity of State officials from foreign criminal jurisdiction”, said that the aspects of limitations and exceptions to immunity required a detailed and careful examination that took into account State practice and trends in international law. The provisional adoption of draft article 7 by a recorded vote attested to the complexity of that question. Given the importance of the topic, those deliberations required appropriate attention. As a general rule, the Commission should strive to avoid recourse to a recorded vote when provisionally adopting draft articles. While such immunity was based on the principles of the sovereign equality of States, non‑intervention, and the interest of States in maintaining friendly relations, that matter should also be addressed against the background of the growing prominence of legal humanism and the fight against impunity, in particular through the prism of the progressive development of international law and developments in international criminal law.