The Immunity of State Officials for International Crimes Revisited

摘要

Immunity for state officials is part of state immunity, and still generally obtains in criminal or civil proceedings instituted against them before national courts. The official capacity of the officials cannot be lightly assumed away in such proceedings, and the capacity attaches regardless of the perceived nature of the acts of such persons. A debate exists in practice and theory over the granting of state immunity in cases of international crimes. The current practice, however, still places state immunity on a higher level to other rules of international law that found national jurisdiction, as opposed to international jurisdiction. This may be due to the unchanged foundation of the international order based in the UN Charter. Any denials of state immunity of foreign officials by national courts, without a basis in international law, will challenge the fundamental principles of that order. Nonetheless, they will not alone generate new rules of customary law.