Of Continuous Controversies and Unfinished Tasks

On 15 May 2026, the International Law Commission (ILC or Commission) considered the report of its Drafting Committee on “Immunity of State Officials from Foreign Criminal Jurisdiction” and adopted draft articles on second reading.

This quick agreement stands in stark contrast to the heated debates and still unfinished tasks of this almost 20-year-old topic. The aim of this contribution is to shed light on one controversy: the “international crimes exceptions” to immunity ratione materiae included in Draft Article 7 (now renumbered as Draft Article 6 [7]). How can a balance between respect for the principle of sovereign equality and the fight against impunity be struck? Given the lack of sufficient State practice and the existence of widespread controversies, does Draft Article 6 [7] really contribute to the fight against impunity?

Controversies Around the Existence of Exceptions to Immunity Ratione Materiae

Draft Article 7 provides for six exceptions to which immunity ratione materiae shall not apply, namely the crime of genocide, crimes against humanity, war crimes, the crime of apartheid, torture, and enforced disappearance. The main criticism of Draft Article 7 is that it does not represent lex lata, given the lack of “widespread, representative and consistent” State practice in support of the “international crimes exceptions”. Draft Article 7 is therefore only lex ferenda ‘smuggled’ by the ILC into the international legal system.

In 2023, the ILC decided to appoint Professor Grossman as Special Rapporteur to replace Professor Escobar. According to his Second Report, Professor Grossman opines that there is extensive support among States for the inclusion of a provision restricting the immunity ratione materiae (see para. 76). He therefore recommended adding three exceptions to the list of crimes, namely the crime of aggression, slavery and slave trade, which were included in the text of Draft Article 6 [7] on second reading. To support his argument, Professor Grossman supplements recent State practice, including judicial practice in Belgium, France, Germany, Italy, Lithuania, Sweden, Switzerland, Argentina and the United States, as well as legislative developments in Austria and Germany. In his opinion, this practice further expands the practice detailed by the previous Special Rapporteur, reaffirms the existence of international crimes exceptions to immunity ratione materiae and supports the need for including Draft Article 6 [7] (see Second Report, paras. 53-74; see also here).

Nonetheless, the practice by many more States has not been observed. Most States have not issued statements to assess relevant practice, and some deliberate inaction may stem from a legal belief in the continuing applicability of immunity ratione materiae. Therefore, the insufficient support from State practice remains problematic, let alone the longstanding existence of contradictory State practice. Given that the fundamental problem of State practice remains unsolved, the question of whether to retain the “international crimes exceptions” list and how to determine the criteria for selecting the crimes listed therein appears to have become a moot point.

Still, in the view of the Special Rapporteur, “opting merely for a set of criteria may undermine legal certainty”. He therefore recommended the Commentary to expand on the basis for including the crimes listed in Draft Article 7 (Second Report, para. 77). However, if the “overall” State practice in support of the existence of exceptions is far from sufficient, how can we conclude that State practice supporting each crime listed in Draft Article 7 is sufficient? If not, should we turn to any other criteria?

Looking back at paragraph (11) of the Commentary to Draft Article 7 on first reading, the ILC considered as reasons for the inclusion of the crimes listed therein “State practice” and “the most serious crimes under international law”. These two reasons are justified, in the logic of the Commentary, because exceptions to the rule of state immunity ratione materiae exist. Therefore, with regard to the list of specific crimes, “the Commission considers that it must pursue its mandate of promoting the progressive development and codification of international law by applying both the deductive method and the inductive method” (ILC Report A/77/10, 2022, para. 69). Is the deductive method applied because of the difficulties arising from the application of the inductive method? If so, the deductive method should be applied very cautiously so as to avoid what was characterized by some ILC members as an exercise in an “arbitrary form of progressive development”. No matter from what premises the deductive method is applied, the essential basis for the inclusion of crimes should never be blurred: State practice. Phrased differently, only if the State practice requirement is satisfied, the other criteria serving as a supplement make sense; not vice versa.

More Controversies Brought by More Exceptions to Immunity Ratione Materiae?

Under such circumstances, three more exceptions were still recommended to the list of crimes (see Second Report, para. 79).

With regard to adding the crime of aggression, the Special Rapporteur pointed to numerous States (18 in total) that have questioned the reasons for excluding the crime of aggression and that have urged the Commission to include it in the list (see paras. 40 to 45). Looking back at the Commentary to Draft Article 7 on first reading, the ILC decided not to include the crime of aggression, “in view of the nature (…) which would require national courts to determine the existence of a prior act of aggression by the foreign State, as well as the special political dimension of this type of crime” (ILC Report A/77/10, 2022, para. 21 and footnote 1031). Even though the crime of aggression has been included in the Rome Statute of the International Criminal Court as some States argued, its uniqueness cannot be denied when compared with the other international crimes. The comments and observations of the aforementioned 18 States still could not respond effectively to the reasons provided by the ILC for excluding the crime of aggression, nor could the Special Rapporteur in his Second Report.

Regarding the inclusion of the crimes of slavery and slave trade, the Special Rapporteur referred to the proposal made by Sierra Leone which recalled that the prohibition of slavery and slave trade had become jus cogens (see Second Report, para. 46). In addition, when the United Arab Emirates objected that the list of “international crimes exceptions” would be arbitrary, it also questioned why the prohibition of slavery did not meet the Commission’s proposed threshold (see Comments and Observations Received from Governments, A/CN.4/771, 2024, p. 94).

The Commentary to Draft Article 7 on first reading concerned the suggestion to include other crimes such as slavery, terrorism, human trafficking, child prostitution and child pornography, and piracy. The ILC decided not to include them because these crimes are either already covered by the category of crimes against humanity or do not fully correspond to the definition of crimes under international law stricto sensu, being more correctly described in most cases as transnational crimes (see ILC Report A/77/10, 2022, para. 69). The Commentary does not reference slave trade. Throughout the comments and observations received from governments (see A/CN.4/771, A/CN.4/771/Add.1, A/CN.4/771/Add.2 and A/CN.4/771/Add.3), only Sierra Leone suggested including slavery and slave trade in the list. In light of this, it is still very unconvincing to add these exceptions to the “international crimes exceptions” list, let alone the unconvincing character of the “original” list itself (see ILC Report A/77/10, 2022, para. 68).

“Unbearable Weight” Left for the Commentary?

In view of so many controversies, the Drafting Committee once considered to delete the list and to provide criteria for the identification of the “international crimes exceptions” instead. However, according to the Statement of the Chairperson of the Drafting Committee on 23 May 2025, it decided to keep the format adopted on first reading “in the interests of providing legal certainty and of avoiding too large a change to the first reading text”. The ILC further concluded that “the possibility of future developments would be better addressed in the commentary”. Regarding the criteria for the selection of the crimes, the Drafting Committee also “agreed to strengthen the discussion of those criteria in the commentary”. The Commentary would be ‘used’ to address many other tricky issues, as the Chairperson opined, inter alia, the complexity and sensitivity of prosecuting the crime of aggression in domestic jurisdictions, further clarification of the legal basis and definitional contours of slavery and slave trade, and the application of each provision of Part Four on procedural safeguards.

Throughout the discussion in the Commission, many ILC members emphasized the importance of the wording of the Commentary. Some insisted on complementing the Commentary with more relevant recent State practice, including from various regions and within different legal systems, as well as some deliberate inaction and contrary State practice. Some proposed clarifying the status of Draft Article 6 [7] in the Commentary as a codification of customary international law, progressive development of international law, or a proposal for a new norm. Some members intended to decide whether to support or oppose Draft Article 6 [7] based on the final content of the Commentary (see A/CN.4/SR.3729 and A/CN.4/SR.3730).

The Special Rapporteur also suggested clarifying the non-exhaustive status of the “international crimes exceptions” list in the Commentary (see Second Report, para. 78). However, an explicitly non-exhaustive list offers the possibility of applying Draft Article 6 [7] to other crimes, which may expand the scope of exceptions to immunity ratione materiae. Given its highly controversial features, as well as its risk of politically motivated abuse, the potential expansion of the list would further restrict the immunity ratione materiae and may introduce additional uncertainties into international relations.

Does the aforementioned indicate the intention of the ILC to transfer controversies and difficulties from the texts of the draft articles to the Commentary? Admittedly, the Commentary commonly plays an essential role in explaining the text itself, which is the long-standing practice of the Commission. However, is this topic allocating too much burden to the Commentary to be adopted on second reading? The practice of the ILC usually does not include too many differences of views in the Commentary adopted on second reading and limits the Commentary to the explanation of adopted texts (see ILC Report A/51/10, 1996, para. 198). In this situation, how should a balance be struck between the “expectation” of the ILC members that the Commentary can address so many controversies and the “unbearable weight” left to the Commentary? The Commission has established a working group on the Commentary to the draft articles and we will see to what extent the Commentary achieves a balance in the second part of this ILC Session.

Concluding Remarks

The immunity of state officials has become one of the longest-running topics before the Commission, which reflects its complexities and the controversial nature. Draft Article 7 led to a rare recorded vote among the ILC in 2017, and a vote was carried out again on 28 April 2026 before the second reading of Draft Article 6 [7]. Even if the Commentary can include as many diverging opinions as possible, those controversies cannot be resolved once and for all. The controversies persist and an “overloaded” Commentary may set a poor precedent that deviates from the established practice of the ILC.

Disclaimer:
This research is supported by the National Social Science Foundation of China (21BFX148).