Abstract
The International Law Commission (ILC) temporarily adopted Draft Article 7 on immunity of state officials from foreign criminal jurisdiction, listing six international crimes such as genocide and crimes against humanity that state officials don’t share immunity from foreign criminal jurisdiction. This paper holds a conservative attitude to the adoption of Draft Article 7 after combing international and national practice and research on immunity theory. First, by sorting out international practices and national practices, it could be drawn that the exception to immunity of state officials from foreign criminal jurisdiction has not yet formed customary international law. Second, through the analysis of the theory and practices, it could be found that the theory for supporting international crimes as exceptions to the immunity of state officials from foreign criminal jurisdiction: international crimes should not be recognized as official acts, the effectiveness of jus cogens is higher than the immunity rule and the theory of impunity against international crimes are not sufficient. Based on the above results, this paper argues that the ILC should not make clarifying immunity exceptions the core of its work on this topic; instead, it should focus on further clarifying the rules for granting state officials immunity from foreign criminal jurisdiction to respect the principle of sovereign equality of states and maintain the stability of international relations.
Highlights
Through the analysis of the theory and practices, it could be found that the theory for supporting international crimes as exceptions to the immunity of state officials from foreign criminal jurisdiction: international crimes should not be recognized as official acts, the effectiveness of jus cogens is higher than the immunity rule and the theory of impunity against international crimes are not sufficient
Based on the above results, this paper argues that the International Law Commission (ILC) should not make clarifying immunity exceptions the core of its work on this topic; instead, it should focus on further clarifying the rules for granting state officials immunity from foreign criminal jurisdiction to respect the principle of sovereign equality of states and maintain the stability of international relations
The ILC mainly focused on immunity of state officials from foreign criminal jurisdiction, the fifty-eighth session of ILC in 2006 included this topic in the long-term work schedule2, the fifty-ninth session of ILC officially listed this project in the current working plan3
Summary
As of March 2021, this topic has lasted for more than a decade, the former Special Rapporteur and the current Special Rapporteur have submitted a total of ten reports on this issue During this period, the ILC conducted intense discussions on the origins, scope, exceptions and procedures of this issue, resulting in 16 draft articles on immunity of state officials from foreign criminal jurisdiction, of which the first 7 articles were provisionally adopted. The reports submitted by the two rapporteurs reveals that they hold opposite positions on the issue of exceptions to the immunity of state officials of foreign criminal jurisdiction The former Special Rapporteur pointed out in the second report that the reasons for the exception to immunity were insufficient, and there was not enough practice to prove that the immunity exception has developed into a norm of customary international law. Of Draft Article 7 and analyze the reasons for the proposal of the current Special Rapporteur, the third and the fourth parts will focus on whether the conditions are mature for the review of the exceptions to immunity of state officials from foreign criminal jurisdiction and whether the theory of the exceptions to immunity is sufficient
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