Methodological Flaws in the ILC's Study on Exceptions to Immunity <i>Ratione Materiae</i> of State Officials from Foreign Criminal Jurisdiction

Shen, Q

doi:10.1017/aju.2018.9

Cited by 4 publications

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“…In conclusion, although both the Special Rapporteur and the final work product of Draft Article 7 and its Commentary avoid the conclusion that the six exceptions to official immunity have been established as customary international law, they all strongly hint at such a conclusion or at least a trend in that direction (Shen, 2018). As a result, the Draft Article 7 was adopted by the ILC.…”

Section: Reasons For the Adoption Of Draft Article 7 By The Ilcmentioning

confidence: 96%

The Limitations and Exceptions to Immunity of States Officials from Foreign Criminal Jurisdiction: On ILC Draft Article 7

Ren¹,

Jin²

2021

BLR

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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.

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Section: Reasons For the Adoption Of Draft Article 7 By The Ilcmentioning

confidence: 96%

The Limitations and Exceptions to Immunity of States Officials from Foreign Criminal Jurisdiction: On ILC Draft Article 7

Ren¹,

Jin²

2021

BLR

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Legal Challenges for Foreign Adjudicative Jurisdiction

Hartig¹

2023

International Criminal Justice Series

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The international law commission’s recent work on exceptions to immunity: Charting the course for a brave new world in international law?

Tladi

2018

Leiden Journal of International Law

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In the summer of 2017, the International Law Commission adopted a draft article on exceptions to immunity. The Draft Article adopted provides that immunityratione materiaedoes not apply with respect to certain international crimes, namely crimes against humanity, the crime of genocide, war crimes, the crime of apartheid, torture, and enforced disappearances. These exceptions do not apply to immunityratione personae. The Draft Article was adopted after a vote and was severely criticized by some members of the Commission. It has also received mixed reaction from states, with some supporting its content while others have opposed it. In the aftermath of the adoption of the Draft Article, there has also been academic commentary, some of which has been critical. The (main) criticism levelled against the Draft Article is that it does not represent existing law and has no basis in the practice of states. This article seeks to evaluate the criticism by considering whether there is any state practice in support of the Draft Article proposed by the Commission.

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

Cited by 4 publications

References 0 publications

The Limitations and Exceptions to Immunity of States Officials from Foreign Criminal Jurisdiction: On ILC Draft Article 7

The Limitations and Exceptions to Immunity of States Officials from Foreign Criminal Jurisdiction: On ILC Draft Article 7

Legal Challenges for Foreign Adjudicative Jurisdiction

The international law commission’s recent work on exceptions to immunity: Charting the course for a brave new world in international law?

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