The immunity of State officials from foreign criminal jurisdiction is one of the oldest and most debated topics in International Law. For nearly twenty years, the International Law Commission of the United Nations has been devoted to studying this matter. The work has just concluded with the adoption, on second reading, of 17 draft articles on the immunity of State officials from foreign criminal jurisdiction. Its final stage was led by the Chilean jurist Claudio Grossman, who took office as Special Rapporteur in 2023 and was tasked with bringing to completion one of the Commission's longest-running and most complex projects.
The draft is based on a fundamental distinction. On the one hand, heads of State, heads of Government, and ministers for foreign affairs enjoy, while in office, immunity ratione personae — a broad immunity that covers both official and private acts, but which ends when they leave their posts. On the other hand, immunity ratione materiae applies to State officials in general, regardless of their position, but only with respect to acts performed in an official capacity, and it may persist after they leave office.
The draft seeks to bring order to a subject situated between two demands of International Law: respect for the sovereign equality of States and accountability for the most serious international crimes. It does not aim to eliminate the tension between the two, but rather to offer rules for addressing it.
The most difficult question is determining what happens when those acts constitute international crimes. Faced with this problem, the ILC establishes that immunity ratione materiae does not apply with respect to certain crimes, including genocide, crimes against humanity, and war crimes.
Another important contribution of the stage led by Grossman was to place the discussion on exceptions to immunity within a more complete procedural framework. Thus, the text regulates mechanisms such as notification to the official's State, the invocation and waiver of immunity, the exchange of information, its determination by the competent authorities, the transfer of criminal proceedings, and guarantees of fair treatment. It is not only a matter of establishing exceptions to immunity, but also of determining how they should operate.
With the adoption of the draft articles, a work begun in 2007 comes to an end. The Commission has recommended that they serve, at the appropriate time, as the basis for an international convention. It will now be up to States to decide their fate.
That a Chilean jurist has had the responsibility of leading to conclusion a work of such importance constitutes a significant contribution to a national tradition of participation in the development and codification of International Law. At a time when it often appears associated with its crises, Grossman's work recalls a less visible dimension: the patient construction of common rules.
By Benjamín Salas, lawyer, associate contributor to Horizontal