A Controversial Dialogue between International and Domestic Courts on Functional Immunity

Abstract

The present contribution stems from a number of judicial decisions concerning immunity of State officials from foreign domestic jurisdiction, with specific regard to criminal jurisdiction. In particular, the article aims at analysing current trends concerning immunity of State officials from foreign domestic jurisdiction. In order to do so, an analysis of the customary rules concerning immunity of State officials, either personal or organic, is sketched out first of all, also taking into consideration the recent work of the International Law Commission on the topic in point. Subsequently, international and domestic case law are dealt with. In particular, the analysis considers the stance taken by international as well as domestic courts with regard to organic immunity in cases of international or common crimes. Lastly, some conclusions are drawn, also pointing towards some small openings in current case law so as to suggest a possible balance between competing claims.