International Crimes Exception to the Immunity of State Officials from Foreign Criminal Jurisdiction: The Russian Perspective on the Work of the International Law Commission

2017 ◽  
Vol 64 (2) ◽  
pp. 213-236
Author(s):  
Aslan Abashidze ◽  
Svetlana Shatalova
Keyword(s):  
International Law ◽  
Criminal Jurisdiction ◽  
International Crimes ◽  
International Law Commission ◽  
Law Commission

scholarly journals Foreign Official Immunity in the International Law Commission: The Meanings of “Official Capacity”

AJIL Unbound ◽  
2015 ◽  
Vol 109 ◽  
pp. 156-160
Author(s):  
William S. Dodge
Keyword(s):  
International Law ◽  
Criminal Jurisdiction ◽  
International Crimes ◽  
International Law Commission ◽  
Law Commission

Of all the issues facing the International Law Commission (ILC) in its work on the topic of “Immunity of State Officials from Foreign Criminal Jurisdiction,” how to define “act performed in an official capacity” is certainly one of the most difficult and important. If serious international crimes, like torture, are considered acts performed in an official capacity, then foreign officials responsible for such crimes may (unless an exception applies) be immune from criminal jurisdiction in other states for such acts even after they leave office.

scholarly journals The “International Crime” Exception in the ILC Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction: Two Steps Back?

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 27-32 ◽  
Author(s):  
Rosanne van Alebeek
Keyword(s):  
International Law ◽  
International Crime ◽  
Customary International Law ◽  
Draft Article ◽  
The Real ◽  
Criminal Jurisdiction ◽  
International Crimes ◽  
Functional Immunity ◽  
International Law Commission ◽  
Law Commission

In addressing the topic of the immunity of state officials from foreign criminal jurisdiction, the International Law Commission (ILC) took on one of the most contentious issues in contemporary international law. The question whether functional immunity applies when officials are accused of having committed international crimes has divided courts and scholars alike, and the ILC was deeply split. The “international crimes” exception set forth in Draft Article 7 was, exceptionally, put up for a vote, with twenty-one votes cast in favor of provisional adoption, one abstention, and eight negative votes. Because the ILC has a mandate to both codify and progressively develop international law, these figures do not help resolve what was arguably the real bone of contention: whether or not the exception is already part of customary international law—that is, whether it is lex lata.

The International Law Commission's Articles on the Responsibility of States for Internationally Wrongful Acts Adopted on Second Reading

2002 ◽  
Vol 15 (4) ◽  
pp. 891-919 ◽  
Author(s):  
Stephan Wittich
Keyword(s):  
International Law ◽  
Legal System ◽  
General Assembly ◽  
International Crimes ◽  
Sensitive Areas ◽  
International Legal System ◽  
International Law Commission ◽  
Law Commission

In 2001 the International Law Commission finally adopted on second reading the Draft Articles on Responsibility of States for Internationally Wrongful Acts and the commentaries thereto, thereby successfully concluding almost half a century of work on the topic by the ILC. Subsequent to the adoption, the General Assembly welcomed the conclusion of the work of the ILC. This article highlights the main changes made during the second reading 1998–2001, among them the issue of international crimes, the concept of injured state and countermeasures. While the 59 articles are the result of compromise, they undoubtedly are a major achievement in one of the most important and most sensitive areas of international law. Ultimately they may be a useful tool to promote the enforcement of community interests in the international legal system.

scholarly journals Methodological Flaws in the ILC's Study on Exceptions to Immunity Ratione Materiae of State Officials from Foreign Criminal Jurisdiction

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 9-15 ◽  
Author(s):  
Qinmin Shen
Keyword(s):  
International Law ◽  
War Crimes ◽  
Crimes Against Humanity ◽  
General Assembly ◽  
Draft Article ◽  
Criminal Jurisdiction ◽  
International Crimes ◽  
The Core ◽  
Un General Assembly ◽  
International Law Commission

In July 2017, the UN International Law Commission (ILC) provisionally adopted Draft Article 7 on exceptions to immunity ratione materiae of state officials from foreign criminal jurisdiction, by a recorded vote of twenty-one votes in favor, eight votes against, and one abstention. In the view of the majority of ILC members, immunity ratione materiae does not apply to the six international crimes listed in the draft article—genocide, crimes against humanity, war crimes, apartheid, torture, and enforced disappearance—either because of a limitation or because of an exception. The unusual practice of adopting a draft article by recorded vote demonstrated the deep controversy among the ILC members themselves. After all, exceptions to official immunity lie at the core of the project of “Immunity of State Officials from Foreign Criminal Jurisdiction” that was started a decade ago by the ILC. This divisive Draft Article 7 naturally garnered criticism and equally deep controversy among states in discussions on the ILC's work report at UN General Assembly Sixth Committee in late October 2017.

Lessons from the ILC’s Work on ‘Immunity of State Officials’: Melland Schill Lecture, 21 November 2017

2019 ◽  
Vol 22 (1) ◽  
pp. 34-69
Author(s):  
Michael Wood
Keyword(s):  
International Law ◽  
Clear View ◽  
Criminal Jurisdiction ◽  
Current State ◽  
International Law Commission ◽  
Law Commission

The topic Immunity of State officials from foreign criminal jurisdiction has been on the programme of work of the International Law Commission since 2007. After ten reports from two Special Rapporteurs, by June 2019 it has yet to complete a first reading, not least because the topic has proved highly contentious both within the Commission and among States. The Commission could only adopt a central provision (on exceptions to immunity ratione materiae), exceptionally, having recourse to voting. There are several lessons to be learnt from the handling of the topic over the last twelve years, including for such crucial aspects of the Commission’s working methods as the choice of topics; the need for a clear view of the Commission’s aim in taking up a topic; the need for rigour in assessing the current state of international law; the importance of dialogue, within the Commission and between the Commission and States; and the utility or otherwise of voting.

Immunities of State Officials and the Responsibility for the International Crimes: International and National Law

2016 ◽  
Vol 4 (2) ◽  
pp. 0-0
Author(s):  
Светлана Глотова ◽  
Svetlana Glotova
Keyword(s):  
International Law ◽  
Russian Federation ◽  
Rome Statute ◽  
Criminal Code ◽  
International Crimes ◽  
State Practice ◽  
The Russian Federation ◽  
Jus Cogens ◽  
International Law Commission ◽  
Law Commission

The immunities of high-rank officials regarding to the responsibility of serious crimes of international community concern are analysed in the present paper. Relevance of the topic is maintained in its consideration of the International Law Commission. Principle of the irrelevance of official capacity (Art. 7 IMT, Principle III of the Nuremberg principles, art. 27 Rome Statute of ICC) is universally recognized and has the character of jus cogens. We critically examine the state practice (Pinochet case, Georgia case). The international documents, Criminal Code of the Russian Federation and doctrine are analyzed. By virtue of the constitutional priority of universally recognized principles and norms of International law (Art. 15.4 Constitution), the provisions of the Criminal Code must be fixed in accordance with the Nuremberg principles. This concerns especially principle of irrelevance of official capacity. In case of conflict, the principle of interpretation in accordance with international law should be applied.

Completing the ``International Criminal Order''

1998 ◽  
Vol 67 (2) ◽  
pp. 107-137 ◽  
Author(s):  
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
International Criminal ◽  
International Community ◽  
Criminal Court ◽  
Criminal Jurisdiction ◽  
Draft Statute ◽  
Domestic Jurisdiction ◽  
International Law Commission ◽  
Law Commission

AbstractRecent efforts in the United Nations to establish a comprehensive system of international criminal repression by creating a permanent international criminal court are by no means free from doubts regarding the possibility ever to enforce such law. The preamble of the draft statute prepared by the International Law Commission states the basis on which the court is to assert jurisdiction in an ambitious manner: it is the ``International Community'', joining against ``the most serious crimes of international concern''. The project cannot, however, ignore decades of realist criticism against the assumption of the existence of an international community that is ready to accept an international criminal jurisdiction. In the negotiations, this contradiction is dealt with by a technique provided with an ambiguous name: ``complementarity'', i.e. the coordination of the tasks of the international and domestic jurisdiction. The writer discusses the various ideas and proposals presented under the heading of ``complementarity'' in order to examine the tension between communitarian and sovereignty-based strands in the international project to create an effective criminal jurisdiction.

scholarly journals Recent Developments of International Law Commission Work on Immunity of State Officials from Foreign Criminal Jurisdiction

2021 ◽  
Vol 10 (2) ◽  
pp. 63-78
Author(s):  
Pavel Bureš
Keyword(s):  
International Law ◽  
International Criminal ◽  
Criminal Jurisdiction ◽  
Progressive Development ◽  
Theoretical Structure ◽  
Sovereign Equality ◽  
Recent Developments ◽  
Limitations And Exceptions ◽  
International Law Commission ◽  
Law Commission

Immunity is a well bedded concept within international law and mainly within the principle of sovereign equality of states. There are different procedural implications of the concept of immunity – diplomatic and consular privileges and immunities, State jurisdictional immunities and also immunity of State officials from foreign criminal jurisdiction. The Article focuses on the latter one and portrays on recent developments of immunity of State officials from foreign criminal jurisdiction as it is elaborated by the UN International Law Commission (‘ILC’). The author frames (in the introduction) the concept of immunity and especially the immunity of State officials and puts it in a large theoretical structure of international law and in the work of ILC. Then, he focuses his attention on the phenomenon of progressive development of international law (2) and how it is used with respect to the topic considerated by the ILC. He then presents main ILC conclusions regarding limitations and exceptions to immunity of State officials (3) and finally outlines latest development (4) of the ILC work dealing mainly with relationship between foreign criminal jurisdiction and international criminal jurisdiction and other procedural questions.

scholarly journals Immunity Ratione Personae of Foreign Government Officials and Other Topics: The Sixty-Fifth Session of the International Law Commission

2014 ◽  
Vol 108 (1) ◽  
pp. 41-57 ◽  
Author(s):  
Sean D. Murphy
Keyword(s):  
Costa Rica ◽  
International Law ◽  
Government Officials ◽  
Criminal Jurisdiction ◽  
Foreign Government ◽  
Heads Of State ◽  
International Law Commission ◽  
Foreign Ministers ◽  
Heads Of Government ◽  
Law Commission

The International Law Commission held its sixty-fifth session in Geneva from May 6 to June 7, and from July 8 to August 9, 2013, under the chairmanship of Bernd H. Niehaus (Costa Rica). The Commission devoted most of the sixty-fifth session to discussing three topics: immunity of state officials from foreign criminal jurisdiction, subsequent agreements and subsequent practice in relation to the interpretation of treaties, and protection of persons in the event of disasters. Notably, the Commission provisionally adopted three draft articles and commentaries identifying three categories of senior governmental officials—heads of state, heads of government, and foreign ministers—as entitled to immunity ratione personae from foreign criminal jurisdiction for their public or private acts, an immunity that ceases once they leave office.

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