112 AJIL Unbound 1 (2018)

handle is hein.journals/ajilunbo112 and id is 1 raw text is: 







doi:10.1017 /aju.2018.


INTRODUCTION TO THE SYMPOSIUM ON THE PRESENT AND FUTURE OF FOREIGN
                                         OFFICIAL IMMUNITY

                                               Curtis A. Bradley*

  It is generally accepted that, under customary international law, government  officials are entitled to certain
immunities in civil suits and criminal prosecutions in the domestic courts of other nations, assuming such immu-
nities have not been waived by their government. Some high-level officials such as heads of state are entitled, while
they are in office, to status-based immunity, also known as immunity ratone personae. This immunity is essentially
absolute and extends even  to private conduct.' A much broader  class of government officials is entitled to con-
duct-based immunity,  also known as immunity  ratione materiae. This immunity can be invoked even after the official
is out of office, but it extends only to acts that they took in an official capacity while in office. At least since the
Pinochet litigation in the United Kingdom in the 1990s, the scope of this conduct-based immunity has been  the
subject of substantial international debate.2
  Since 2007,  the UN's International Law  Commission   has been  considering the Immunity  of State Officials
from  Foreign   Criminal Jurisdiction.' In  the summer of 2017, as part of its work on this topic, the
Commission   provisionally adopted Draft Article 7, which provides:

       Draft Article 7

       Crimes  under  international  law in respect  of which  immunity   ratione mateiae   shall

       not apply

       1.  Immunity  ratione materiae from the exercise of foreign criminal jurisdiction shall not apply in respect of
           the following crimes under international law:
           (a) crime of genocide;
           (b) crimes against humanity;
           (c) war crimes;
           (d) crime of apartheid;
           (e) torture;
           (f) enforced disappearance.
       2.  For the purposes of the present draft article, the crimes under international law mentioned above are to be
           understood according to their definition in the treaties enumerated in the annex to the present draft articles.4

  The  adoption of this draft article was based on a recorded vote, with twenty-one members voting in favor, eight
members   voting against, and one member   abstaining.5 In its Commentary on the draft article, the Commission


   * William Van Alstyne Professor, Duke Law School
   See Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 ICJ REP. 3 (Feb. 14).
   2 For discussion of some of the relevant state practice since the Pinochetcase, including national case law, see Jones v. U.K., 2014 EUR. CT.
H.R. 176.
  3 For an earlier AJIL Unbound symposium relating to this International Law Commission project, see Symposium on the Immunity of
State Officials, 109 AJIL UNBOUND (2015), with essays from William Dodge, Chimene Keitner, and Roger O'Keefe.
  4 See Int'l Law Comm'n, Report on die Work of Its Sixty-Ninth Session, UN Doc. A/72/10 (Sept. 11, 2017).
    See id. at 164-65.

        The American Society of International Law and Curds A. Bradley c 2018. This is an Open Access article, distributed under the terms  1
        of the Creative Commons Attribution licence (http://creativecommons.org/1icenses/by/4.0/), which permits unrestricted re-use,
                      distribution, and reproduction in any medium, provided the original work is properly cited.

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