State Official’s Immunity From Foreign Criminal Jurisdiction On The Exceptions For International Crimes

The issue of exceptions to the immunity of state officials from foreign criminal jurisdiction for international crimes was spawned by the development of individual criminal responsibility and the fight against impunity after the Second World War.In practice,some foreign courts do not recognise the immunity from jurisdiction of officials of other states and exercise direct criminal jurisdiction over them,which has a significant impact on friendly relations between states and the stability and security of the international community.Against this background,this article takes universal jurisdiction as an entry point and,through four chapters,aims to sort out the relationship between the immunity of state officials from criminal jurisdiction and the universal jurisdiction of foreign courts over international crimes,and then argues that the current exceptions to foreign criminal jurisdiction of state officials should not be recognised for international crimes.Chapter I focuses on the conflict between the immunity of state officials from foreign criminal jurisdiction and universal jurisdiction.Logically,immunity comes first before we can talk about exceptions to immunity.This chapter thus begins with a discussion of the rules on the immunity of state officials from foreign criminal jurisdiction.It defines a state official as any person who is qualified in his or her capacity to represent the State or to perform State functions.The paper also reviews the immunity ratione personae and immunity ratione materiae enjoyed by state officials,noting that the absolute immunity ratione personae of Heads of State,Heads of Government and ministers for foreign affairs is a rule of customary international law accepted by States,while the immunity ratione materiae enjoyed by other state officials remains controversial.It is clear from this article that the direct sources of international law in this area are rules of customary international law,in addition to international treaties,which are also a source.Secondly,the chapter deals with the exceptions to the rule excluding immunity of State officials from foreign criminal jurisdiction.The cases in which international crimes are exceptions to immunity are discussed,drawing out the theoretical bases of international law that underpin them as exceptions to immunity: irrelevance of official capacity,impunity and the principle of universal jurisdiction.Finally,the chapter focuses on the analysis of the controversy over the priority of the application of universal jurisdiction for the punishment of international crimes.This controversy is key to confirming whether the exception to the rule of immunity of state officials from foreign criminal jurisdiction can be sustained.Two pressing questions under the controversy are pointed out: first,whether the exception to the rule of immunity,which has as its content the priority of application of universal jurisdiction,has become a customary international law;and second,whether the existence of jurisdictional immunity is a substantial impediment to the pursuit of accountability for international crimes and whether the priority of application of the universal jurisdiction of foreign courts is the appropriate way to achieve the punishment of international crimes of state officials.Chapter II is based on the fifth report of the Special Rapporteur of the International Law Commission,Ms.Hernández,by counting and tabulating the amount of State practice cited therein.It is argued that the current amount of State practice is too small to conclude that the international crimes exception to immunity of state officials from foreign criminal jurisdiction forms a rule of customary international law.The chapter then analyses the nature of draft article 7,confirming that the draft articles are in the nature of progressive development of international law.In voting on paragraph 7 of the draft articles,which deals with exceptions to immunity of state officials,the International Law Commission did not adopt the traditional consensus approach.This is contrary to the usual procedure for the adoption of a draft international convention and reflects the fact that there is no international consensus on this issue.The paper then analyses the content of the procedural safeguards clause in the draft articles.It is argued that the procedural safeguards do not address the concerns of States regarding the abuse of universal jurisdiction by foreign courts against state officials of other States.Chapter III focuses on the application of the international crimes exception to foreign criminal jurisdiction for state officials.First,it analyses the official acts of state officials,identifying the criteria of “attribution of conduct to the State” and “the exercise of elements of sovereignty and governmental authority”.It is confirmed that the core of an official act of a state official is that it is committed in an official capacity,and therefore ultra vires and illegal acts of state officials are also official acts.Secondly,the paper analyses the basis for the exercise of jurisdiction by the courts of the place where the offence was committed,the courts of the victim’ s nationality and the courts of any third country,confirming that all three types of courts exercise restricted universal jurisdiction.Finally,it is argued that the exercise of universal jurisdiction by foreign courts does not have priority.Through the analysis of the judgment of the International Court of Justice in the Arrest Warrant case,the paper concludes that there is no conflict of application between the immunity of state officials and universal jurisdiction.The existence of the immunity of state officials is only a temporary procedural impediment to the exercise of universal jurisdiction for a period of time,and does not mean that state officials are not prosecuted for international crimes.Combating the international crimes of state officials by means of the exercise of universal jurisdiction by foreign courts is inappropriate and,on the contrary,could trigger a political abuse of universal jurisdiction by foreign courts and destabilise relations between States.Chapter IV builds on the first three chapters by focusing on the punishment of international crimes committed by state officials.At the international level,it emphasises the exercise of complementary criminal jurisdiction through the International Criminal Court,while the UN Security Council combats international crimes under Chapter 7 of the UN Charter,working together to achieve impunity.In addition,from the perspective of international judicial cooperation in criminal matters,it was pointed out that outgoing state officials could be punished through the extradition system.Finally China’s response,on the one hand,emphasises respecting the immunity ratione materiae of incumbent state officials and safeguarding our legitimate rights and interests;on the other hand,China,as a champion of peace,should also actively participate in international judicial cooperation in criminal matters to combat international crimes.For China to achieve domestic jurisdiction for state crimes against outgoing state officials through the extradition regime,international crimes need to be incorporated into domestic criminal law.In addition,the issue of immunity of state officials for international crimes is often used as a tool for political struggle by Western countries.As a developing country member of the UN Human Rights Council,China needs to change its passive position on human rights issues,actively enhance its international human rights discourse through participation in the UN human rights mechanisms,and clarify the political smearing of China by Western countries on the issue of international crimes of state officials.In conclusion,this article argues that at this stage,the exceptions to the immunity ratione materiae of state officials for international crimes have not yet formed a rule of customary international law and that it would be more appropriate to recognize the immunity ratione materiae of current state officials.At the same time,the fight against impunity and the punishment of international crimes is also a just pursuit of the international community.Therefore,this article favours the International Criminal Court and the Security Council as the means of achieving the punishment of international crimes against state officials.