Be Careful What You Wish For: the International Law Commission Recognizes a List of Instances in Which Functional Immunity Does Not Apply

Since its release in 2016, the Fifth Report of the ILC’s Special Rapporteur on the issue of ‘Immunity of state officials from foreign criminal jurisdiction’ managed to raise scepticism among the members of the Commission. However remarkable the effort to clarify the issue of the limits and exceptions to functional immunity, the Report proved not to be fully convincing and the proposed draft provision identifying instances in which said immunity does not apply was only partially retained by the Drafting Committee, which would substantially reduce its material scope. Finally, the amended Draft Article 7 was provisionally adopted by the Commission after a vote. Still, many doubts surround its already debatable content as well as its status, since neither the SR nor the Drafting Committee clarified whether they were engaging in a codification effort or were rather giving impulse to progressive development of International Law. The 6th Report eventually presented by the Special Rapporteur during this year’s session and only partially debated during the session did not help to clarify the issue of exceptions to functional immunity and confirmed that a debate on the matter cannot overlook the issue of universal jurisdiction in criminal matters.