State Officials' Functional Immunity From Foreign Criminal Jurisdiction-on The Exceptions For International Crimes

In recent years,cases in which a state exercises its criminal jurisdiction over officials of a foreign state in disregard of the immunity of state officials from foreign criminal jurisdiction has frequently arisen,which not only causes sudden deterioration of the relationship between relevant states,but also seriously threatens the peace and stability of the international community.Due to the stability of international law,the development of an international rule system usually takes a relatively long process.Up to now,the international community has not yet formed a mature and well-developed institutional framework in regard to state officials' immunity from foreign criminal jurisdiction.This issue originates from the traditional rules of jurisdictional immunity and is also rooted on the concept of sovereign equality,but its particularity makes it a new area of international law which necessitates further codification and development.This institutional dilemma incentivizes the concerned states holding divided views to seek analogous rules from the fragmentation of the international legal system,which can be inferred,interpreted and applied only in their own favors,in order to legitimize and justify their claims,irrespective of its conformity with international rules and common practice,the internal and external consistency of logic,and the possibility of causing conflicts among international rules.This practice would undoubtedly lead to highly controversial judgements,which would not only deviate from the track of achieving international justice,but also accelerate the process of the fragmentation of international legal system,exacerbating the chaos and uncertainly in respect of the rulemakings and interpretations in future.In particular,when the concerned states are involved in a dispute on this issue,whether state officials committing crimes in nature of international crimes could still be entitled to the immunity granted by a foreign state(lex forum)lies in the core of the dispute,which is exactly what this Dissertation mainly discuss-whether there exists an exception of state officials' functional immunity from foreign criminal jurisdiction in regard to international crimes.This issue stems from a heated battle between the traditional rules of jurisdictional immunity in international law and the development of rules prohibiting international crimes against "impunity" after World War II.Speaking on a higher level of value,this issue is rooted on the clash between the principle of state sovereignty and the principle of protecting human rights.This issue has attracted wide attention from the international community.Various regional international organizations and societies have made multiple resolutions in early years,expressing their warm concerns on this issue,and the United Nations International Law Commission(“ILC”)is currently preparing a draft in regard to the immunity of state officials from foreign criminal jurisdiction.The Sixth Committee of the General Assembly also organizes annual debates on this subject.The fact that the international community has listed this issue as a specific topic for in-depth research and discussion shows a big step forward the development of international law.However,this issue remains controversial and inconclusive,due to the variety of international rules,national legislations and national practice involved,and the complexity of underlying values.In light of above,this Dissertation will approach and analyze this issue from the following six parts:-Chapter ? summarizes jurisdiction and immunity systems in respect of international law from a macro-background perspective.Since the superordinate concept of state officials' immunity from foreign criminal jurisdiction is the immunity of state from criminal jurisdiction,it is necessary to clarify the meaning,development and specific types of state jurisdiction and state immunity in traditional international law.Among them,as an essential part of state jurisdiction,the exercise of state criminal jurisdiction represents the state sovereignty.State criminal jurisdiction covers personal jurisdiction,territorial jurisdiction,protective jurisdiction and universal jurisdiction.In regard to immunity in international law,there are relatively well-developed rules in respect of state immunity,immunity of diplomatic representative and immunity of head of state.Despite the differences in right holders,representative theories and specific rules,these three immunity systems are all rooted on the concept of sovereign equality,namely,the doctrine of “Par in parem non habet imperium”.In international law,jurisdiction and immunity are two separate but inter-related systems of rule.Chapter ? focuses on the issue of state officials' immunity from foreign criminal jurisdiction.From its very meaning,state officials' immunity from foreign criminal jurisdiction originates from the traditional immunity rules,but has developed a sui generis system of rule with its own characteristics.This chapter first briefly elaborates on the meaning of state officials' immunity from foreign criminal jurisdiction and the research background of this Dissertation.In addition,this chapter traces the process of development in regard to state officials' immunity from foreign criminal jurisdiction,including the research and discussion of ILC on this subject.Apart from the reports of special rapporteurs,this chapter summarizes all drafted clauses passed by ILC on this subject.Furthermore,this chapter points out that the direct source of state officials' immunity from foreign criminal jurisdiction lies in customary international law,and discusses the two types of state officials' immunity,namely,personal immunity and functional immunity.It is widely accepted that there exists no exception to restrict personal immunity of state officials.Chapter ? centers on the relationship between the exception of state officials' functional immunity in regard to international crimes and the theory of irrelevance of official position.In other words,this chapter discusses whether the theory of irrelevance of official position can be relied on to restrict state officials' functional immunity from the jurisdiction of the forum state over international crimes.This chapter first discusses the meaning and scope of international crime,as well as its relationship with the theory of irrelevance of official position which provides the theorical foundation for functional immunity,followed by a case analysis elaborating on the practice in regard to the theory of state action and the theory of irrelevance of official position.Then,this chapter discusses the arguments in support of restricting state officials' functional immunity by the theory of irrelevance of official position.This chapter concludes that the legitimacy of a state officials' action is irrelevant to its attributiveness to the state,and therefore cannot provide a ground to restrict the state official's functional immunity provided by the international law.Chapter ? deals with the issue whether international crimes,as Jus Cogens,can be relied to bar the application of state officials' functional immunity.This chapter first summarizes the meaning,sources,theorical foundation and treaty basis of Jus Cogens,as well as the ILC's discussions on it.Then,this chapter discusses the relationship between Jus Cogen and the fragmentation of international law,as well as the normative hierarchy theory.In the meanwhile,this chapter analyzes the cases where Jus Cogens were relied on to bar the application of immunity,and summarizes multiple arguments in these cases.This chapter puts forward a proposal to rationally address the issues in regard to the relationship between Jus Cogens and state officials' immunity,after an in-depth analysis and summary of different facts and viewpoints in relevant cases.Chapter ? discusses the potential restrictive effect of universal jurisdiction on state officials' functional immunity,namely,the restriction theory of universal jurisdiction.This chapter starts with a brief discussion of the meaning,types and the concerns of international community in regard to universal jurisdiction.Then,this chapter summarizes different views on universal jurisdiction,from Arrest Warrant Case and Belgium v.Senegal,and proposes that it is necessary to make clear the relationship between universal jurisdiction and state officials' functional immunity –specifically,jurisdiction and immunity are separate but inter-related;meanwhile,the exercise of universal jurisdiction remains controversial,therefore it is improper to conclude that the universal jurisdiction shall prevail state officials' functional immunity and therefore the universal jurisdiction can bar the application of state officials' functional immunity.Chapter ? elaborates on the ILC's latest development in regard to the exception of state officials' functional immunity,and challenges Article 7 of the draft adopted by the ILC,which would create an exception to state officials' functional immunity on basis of international crime.Finally,this chapter provides an overall comment on the ILC's development on this subject.