Characterization of International Crimes as Official or Personal Acts in Case Law and International Law Commission's` Approach

Abstract

Of particular importance is the description of international crimes committed by state officials in order to enjoy immunity from foreign criminal courts. With the exception of the three state senior officials known as Troika officials, other officials during their term of office and Troika officials after their term of office may be prosecuted for the commission of international crimes under the heading of universal jurisdiction prosecuted by foreign criminal courts. In accordance with the rules of customary international law referred to and stressed by the International Law Commission in the so-called Plan for immunity of officials from foreign criminal jurisdiction, state officials enjoy immunity from legal proceedings. Some courts have described the commission of international crimes as a personal act in order to avoid impunity for these officials, even if they took place officially. The authors of the article start from the hypothesis that, in order to avoid problems related to the flight of states from international responsibility, it is necessary that the commission of international crimes by officials be qualified as a official act and in this respect the exercise of immunity is excluded. This hypothesis that is supported by the International Law Commission and the case law of some courts.