The House of Lords’ landmark case Pinochet triggered an extraordinary political and academic interest in the issue of immunities of State officials from foreign criminal jurisdiction. Do domestic law enforcement mechanisms have jurisdiction to investigate and adjudicate purported crimes committed by foreign officials, including the (former) holders of the highest offices in the State?
Among contrasting calls to “end impunity” while safeguarding the stability of international relations, the United Nations International Law Commission (ILC) put the topic on its agenda, with the aim of codifying and progressively developing the rules of customary international law in this field. 15 years later, the Commission approaches a contentious conclusions of its efforts: in a highly unusual non-unanimous decision, the ILC adopted a set of draft articles, containing most prominently an explicit exception to the protections granted by immunity if the most severe international crimes are at stake.
This study approaches the ILC’s struggle over State official immunity through a discourse-analytical lens. The theoretical perspective on the identification and progressive development of rules of customary international law as a performative linguistic practice embedded in the dynamics of the “invisible college of international lawyers” is sketched in Part 1.
Part 2 investigates the actors performing the discursive practices looked at, the legal experts elected to serve on the ILC since 2006. The profiles of these individuals are analysed through a set of personal features emerging from their CVs, such as nationality, length of tenure, professional background, expertise, education, age, sex and language skills. On this basis, the shifting characteristics of the ILC’s composition and correlations between specific features and successful election to the Commission are highlighted.
Part 3 and 4 elaborate in detail on the salient issues of State official immunities as they emerge from the records of the Commission’s discursive practices, first and foremost the special rapporteurs’ reports and the minutes of the ILC’s controversial plenary debates on the topic. One main goal consists in identifying evolving positions and in tracing argumentative patterns and strategies, as the ILC members struggled over authoritative interpretations of the “accurate” meaning of terms, rules and concepts over the years.
Part 5 finally analyses the discursive interaction between the ILC and its principal allies and institutional counterparts, the ICJ and the States represented in the General Assembly’s 6th Committee. Besides an analysis of these institutions’ respective views on each others’ prerogatives, a special focus is put on the patterns of positions and argumentations expressed by specific States on the topic over time.
The conclusions summarise the main achievements and obstacles emerging from the analysis of the ILC’s efforts, and give an outlook on the Commission’s crucial future challenges and opportunities both within and beyond the boundaries of the topic of State official immunities.
