New Development On The Immunity Of State Officials From Foreign Criminal Jurisdiction

In international exchanges,out of respect for national sovereignty and the need to safeguard friendly relations among States,a state usually grants foreign officials the privilege of immunity from criminal jurisdiction and the inviolability.After two world wars,the humanistic value of "putting the interests of the individual and the whole of mankind first" profoundly influenced the development of international law.In the field of International criminal justice,officials of a state cannot claim immunity on the grounds that it performs its functions on behalf of the State,making it possible for individual officials to assume international criminal responsibility.Affected by this,whether national courts can exercise criminal jurisdiction over officials of other states on the grounds of the commission of International crimes,"violations in the Territory(territorial tort)" and corruption offences or not is still controversial.Even if the International Court of Justice confirmed the absolute immunity and inviolability of senior officials,such as heads of State,heads of Government and Ministers for Foreign Affairs in the Democratic Congo v.Belgium,Djibouti v.France,the International Court of Justice did not clarify whether there were limitations and exceptions to immunity,and court decisions were noted to run counter to existing trends in international human rights protection.The International Law Commission,which had the responsibility of codifying and progressively developing the rules of international law,had incorporated the question of the immunity of State officials from foreign criminal jurisdiction in its current programme of work in 2007.Nowadays,the International Law Commission has provisionally adopted the text of seven draft articles on the immunity of State officials from foreign criminal jurisdiction,covering such elements as the scope of the topic,the definition of the concept,the normative elements of immunity ratione personae and immunity ratione materiae,and exceptions to immunity ratione materiae.Article 7th of the text,as recently adopted by the International Law Commission in 2017(crimes under international law for which immunity ratione materiae does not apply),is quite controversial not only within the Committee,but also at meetings of the Sixth Committee of the United Nations,jJust as China,Britain and the United States believe in the lack of universal practice,the argumentation process is not rigorous,and procedural safeguards are insufficient.This paper intends to analyze the text and commentary of the recent international and domestic judicial practice,the International Law Commission's draft articles on immunity of state officials from foreign criminal jurisdiction,and examine the two main factors affecting the development of criminal immunity of officials,namely,the influence of "humanistic" in international law and the Limitation of international criminal jurisdiction,regarding positions of International Court of Justice,Institute of International Law and major States,including China,on the foreign criminal immunity of State officials,making two recommendations for the text of the Commission's draft articles on immunity of state officials from foreign criminal jurisdiction,one of which clearly provided that the Commission had the competence to codify existing rules of international law and proposed new laws;and second,Create an obligation to "prosecute or waive immunity" for the state of the official under a particular offence.Accordingly,it reveals the development process in which the immunity of State officials from foreign criminal jurisdiction caters to the trend of narrowing the scope of official immunity.Besides the introduction,the text of this article is divided into four chapters:The first chapter expounds and analyzes the basis of international law on the immunity of State officials from foreign criminal jurisdiction,such as the definition of foreign criminal jurisdiction and related concepts,the theory of immunity of state officials from foreign criminal jurisdiction and the sources of international law.The second chapter is the introduction and analysis of the judicial practice of the immunity of State officials from foreign criminal jurisdiction,which mainly involves two aspects of the jurisprudence of the International Court of Justice and the recent national judicial practice.The third chapter presents the codification and study by the International Law Commission of the topic "immunity of State officials from foreign criminal jurisdiction",and analyses the process of forming the text of the draft articles on the immunity of State officials from foreign criminal jurisdiction prepared by the Commission,examing consensus and disagreement on thematic studies and the content of texts.The fourth chapter,through the analysis of the factors affecting the development of foreign criminal immunity of officials,explores the positions of the International Court of Justice,the International Criminal Court,the Institute of International Law and the China,Germany,Britain and the United States on behalf of the major states.Finally,the text makes recommendations for the International Law Commission's draft articles,thus revealing the future development process of the immunity of State officials from foreign criminal jurisdiction.