August 18, 2017
I was able to observe the second half session of the 69th session of the United Nations International Law Commission (ILC) from 3 July to 4 August 2017. The 2017 ILC Report, advance version, is available on the United Nations International Law Commission website. During the session, the Commission finished its first reading on the topic of crimes against humanity. Subsequent to informal consultation on the issue of immunity for crimes against humanity, the Commission decided to include the provision of the inability to assert the existence of an official position as a substantive defence to criminal responsibility as draft Article 4 bis. The rule of the irrelevance of official capacity is probably originally meant for defendants before international criminal jurisdiction, and the rule presupposes and works within the so-called vertical relationship between international criminal jurisdiction and the individuals prosecuted before international criminal jurisdiction. However, as the ILC draft articles on crimes against humanity and the recent ICC decision by the Pre-Trial Chamber II on 6 July 2017 (especially paras. 76-77) show, the effects of the provision of irrelevance of official capacity do not foresee a clear-cut difference between vertical and horizontal relationship anymore. On the contrary, the provision of the irrelevance of official capacity, as in Article 27 of the Rome Statute and Article 4 bis of the ILC draft articles on crimes against humanity, blurs the line between the vertical and horizontal relationship. Maybe this is a necessary implication of the principle of complementarity of the ICC. These are my preliminary thoughts on the subject. Thank you very much for reading.
© Hitomi Takemura