| State officials’ immunity from foreign criminal jurisdiction is a traditional international customary law.With the development of international criminal law,this customary law has been challenged to a certain extent,and there are many disputes in judicial practice.From 2008 to 2019,the International Law Commission has carried out more than ten years of research on this topic,and has also made great achievements.According to the Research Report of the International Law Commission on related issues,and the relevant judicial practice of national courts and international courts,this paper analyzes the exemption exception of state officials.Through the analysis of the relevant theoretical basis of foreign criminal jurisdiction immunity,the types of immunity are divided into personal immunity and immunity ratione materiae,which has reached a consensus among countries,and it is agreed that personal immunity should never have restrictions and exceptions.Some countries believe that immunity ratione materiae should not be applied in international core crimes,but whether there are exceptions to immunity ratione materiae is controversial.According to the draft temporarily adopted by the International Law Commission on relevant issues,six international crimes are excluded from the scope of application of immunity ratione materiae,but there is no international agreement on these draft articles.Through the analysis of the report of the International Law Commission on this topic,we can see that whether the limits and exceptions of immunity should be clearly stated,or whether state officials should be granted absolute immunity from foreign criminal jurisdiction,has become a core controversy.The first chapter mainly discusses the basic principles of this topic.Firstly,it defines the scope of state officials,and identifies them as officials who can represent the state and all officials who exercise the functions of state power.Secondly,it distinguishes the immunity of foreign criminal jurisdiction involving foreign courts from the immunity of international criminal jurisdiction involving international judicial organs.At the same time,it discusses the nature and classification of immunity,and analyzes personal immunity by combining the theory of representativeness and the theory of job needs and immunity ratione materiae.Finally,it introduces the concept of the limitation and exception of immunity,discusses the relationship between the limitation and exception of immunity and immunity,and analyzes the principle of nonofficial status,the principle of punishment and the principle of universal jurisdiction in combination with the theoretical basis,treaty basis and customary international law basis of the limitation and exception of immunity,so as to explain the causes and disputes of the limitation and exception.The second chapter examines the international community’s attitude towards the application of immunity restrictions and exceptions.First of all,this paper reviews the research on the topic of limitations and exceptions of immunity conducted by the International Law Commission,including the compilation,disputes and the latest procedural guarantee of the relevant contents of limitations and exceptions of immunity in the draft.Secondly,it combs the international judicial practice and national judicial practice related to the limitation and exception of immunity.This paper focuses on the cases of arrest warrant,mutual assistance in criminal matters,Qaddafi and Pinochet.It also focuses on the reasons why the court holds that there should be limitations and exceptions to immunity.At the same time,it comments on the disputes arising from the cases of exemption exceptions.Finally,this paper discusses whether the exception system of immunity has formed international customary law,mainly from the material elements "state practice" and spiritual elements "forming legal conviction" of the formation of customary international law,and finally comes to the conclusion that the exception system of immunity has not formed international customary law,and the international customary law related to immunity has not been changed due to the limitation of immunity in cases Limitations and exceptions.The third chapter mainly discusses the reasons and disputes of excluding immunity ratione materiae.First of all,it analyses whether serious international crimes can exclude the application of immunity.By determining that ultra vires acts still belong to acts of States,serious international crimes should be regarded as official acts.The rule of immunity will not violate the principle of "punishment for all crimes".Finally,it concludes that serious international crimes cannot exclude the application of immunity.Secondly,this paper analyses whether the limitations and exceptions of non-recognition immunity are not conducive to the protection of human rights,mainly from the mandatory effect of mandatory law norms and the protection of human rights legal interests,and concludes that the exemption rule will not lead to the retrogression of human rights protection.Finally,it discusses the conflict between the jurisdiction exercised by foreign courts due to the obligation of universal jurisdiction and the immunity of state officials of another country.At the same time,it holds that jurisdictional immunity does not conflict with the investigation of individual criminal responsibility.Therefore,the obligation of universal jurisdiction given by the Convention should not affect the application of immunity system.According to the principle of no jurisdiction between equal subjects,state officials who perform state functions should still have immunity from criminal jurisdiction in foreign courts in order to promote normal exchanges between countries and maintain the stability of international social relations. |
