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THE WORK OF THE INTERNATIONAL LAW COMMISSION IN 2015, BUSINESS AS USUAL?
The ILC only took note of the interim report of the Chairman of the Drafting
Committee, including the six draft principles provisionally adopted by theCommittee,
26
which was presented to the Commission for information and would appear just in
footnotes of the ILC’s report on the work in 2015. The ILC will adopt them only at the
next session, together with commentaries. As a matter of information, the above draft
principles deal with both preventive measures to be adopted before an armed conflict
(Designation of protected zones) and principles applicable during armed conflict. They
include general protection of the environment, application of the law of armed conflict
to the environment, environmental consideration that shall be taken into account
when applying the principle of proportionality and the rules on military necessity,
prohibition of reprisals against the environment, and special protection of protected
zones against any attack.
As to the future programme of work, the Special Rapporteur expressed, and some
members supported, the proposal to address in her third report the law applicable
in post-conflict situations, issues that had not yet been examined during the second
phase, and to provide a summary analysis of the three phases.
27
2.6 Immunity of State officials from foreign criminal jurisdiction
In relation to this topic the Commission had before it the fourth report of the
Special Rapporteur Ms. Concepción Escobar Hernández, which was focused on the
consideration of the remaining aspects of the material scope of immunity
ratione
materiae
, namely what constituted an official act, and its temporal scope.
28
The report
also contained proposals of draft Article 2(f ) defining an “act performed in an official
capacity” and draft Article 6 on scope of immunity
ratione materiae
.
Following the extensive debate in Plenary,
29
the ILC decided to refer both draft
articles to the Drafting Committee. In the end of its session the Commission took
note of the interim report of the Chairman of the Drafting Committee, including
draft Articles 2(f ) and 6 provisionally adopted by the Committee.
30
In this topic again
the ILC will formally adopt those draft articles with commentaries in 2016. Just for the
sake of information, an “act performed in an official capacity” means any act performed
by a State official in the exercise of State authority. Concerning the key provision on
scope of immunity, it makes clear that State officials enjoy immunity
ratione materiae
only with respect to acts performed in an official capacity. This immunity continues to
subsist after the individuals concerned have ceased to be State officials.
As to the future programme of work, the Special Rapporteur confirmed her
intention to address the issue of limits and exceptions to the immunity in her next
26
See doc. A/CN.4/L.870 (2015).
27
See doc. A/CN.4/L.862 (2015), p. 10, § 33.
28
See doc. A/CN.4/686 (2015).
29
Cf
. doc. A/CN.4/L.863 (2015), §§ 19-52.
30
See doc. A/CN.4/L.865 (2015).