International Crimes Exception to the Immunity of State Officials from Foreign Criminal Jurisdiction: The Russian Perspective on the Work of the International Law Commission

Abstract

Throughout the last decade, while the International Law Commission was considering the topic ‘Immunity of State officials from foreign criminal jurisdiction’, representatives of the Russian Federation in the Sixth Committee of the UN General Assembly repeatedly emphasized its importance and topicality. In 2016, the ILC Special Rapporteur Concepción Escobar Hernández presented her fifth report, devoted to undoubtedly the central and most controversial question of the entire topic, namely potential limitations and exceptions to the immunity of State officials from foreign criminal jurisdiction. According to the newly proposed draft Article 7, immunity ratione materiae shall not apply, inter alia, to the crimes of genocide, crimes against humanity, war crimes, torture and enforced disappearances. The discussion of the ILC Report on the work of its sixty-eighth session in the GA Sixth Committee in 2016 demonstrated that Russia, as well as many other countries, does not support the Special Rapporteur’s argumentation and conclusions. This article examines the legal and practical rationales behind States’ criticism of the fifth report by Ms. Escobar Hernández and presents the Russian perspective on the issue of potential exceptions to foreign official immunity under international law.