The Quarterly Journal of Judicial Law Views

The Quarterly Journal of Judicial Law Views

Criminal Immunity of State Officials from Foreign Criminal Jurisdiction In Draft of International Law Commission

Authors
mirmostafa seyedashrafi
mohsen mohebi
sabber niavarani
seyed ali hanjani
Abstract
Although the immunity of the officials to international courts is not in doubt and the founding and procedural documents of these courts confirm the non-immunity of the heads of state and officials, referring the immunity of these officials to the domestic courts has always been the subject of debate. In particular, with the domination of human rights discourse in recent decades and the need to prosecute perpetrators of international crimes, regardless of their position and the need for the implementation of criminal justice and the fight against impunity for all defendants, has added to the scientific debates on this subject. The domestic courts of some countries, by accepting these arguments, began to prosecute the officials of other countries, which highlights the need to explain various aspects of the subject in light of the recent developments in international law. The United Nations Commission of International Law, in compliance with its task of codification and developing international law, intended to put the issue of criminal immunity of officials by the domestic courts in his agenda. So far, six articles of draft have been approved preliminary and article 7 about exceptions of such immunity is under consideration.
 
Keywords
criminal immunity
State Officials
Functional Immunity
personal immunity
International Law Commission
Books and Articles:
- - Akande, Dapo and Shah, Sangeeta, 2010,Immunities of State Officials, International Crimes, and Foreign Domestic Courts, European Journal of International Law, Vol. 21 No. 4,
- Brohmer, Jurgen, 1997,State Immunity & the Violation of Human Rights, Martinus Nijhoff publishers..
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Documents:
- Fifth report on the immunity of State officials from foreign criminal jurisdiction By Concepción Escobar Hernández, Special Rapporteur.
- Fourth report on the immunity of State officials from foreign criminal jurisdiction By Concepción Escobar Hernández, Special Rapporteur.
- General Assembly Resolution 62/66, 6 December 2007.
- International Law Commission, Statement of the Chairperson of the Drafting Committee, Mr. Aniruddha Rajput, “Immunity of State Officials from Foreign Criminal Jurisdiction,” 3 (July 20, 2017)
- Preliminary report on immunity of State officials from foreign criminal jurisdiction, by Roman Anatolevich Kolodkin, Special Rapporteur.
- Preliminary report on the immunity of State officials from foreign criminal jurisdiction By Concepción Escobar Hernández, Special Rapporteur.
- Second report on immunity of State officials from foreign criminal jurisdiction, by Roman Anatolevich Kolodkin, Special Rapporteur.
- Second report on the immunity of State officials from foreign criminal jurisdiction By Concepción Escobar Hernández, Special Rapporteur.
- Third report on the immunity of State officials from foreign criminal jurisdiction By Concepción Escobar Hernández, Special Rapporteur.
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Cases:
- Case concerning certain criminal proceedings in France (Republic of the Congo v. France), I.C.J. Reports 2002.
- Case concerning Certain Questions of Mutual Assistance in Criminal Matters, (Djibouti v. France), Judgment, I.C.J. Reports 2008.
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