IMMUNITY OF SENIOR STATE OFFICIALS FROM CRIMINAL JURISDICTION: DOES INTERNATIONAL LAW PERMIT EXCEPTIONS?

This article analyses the concept of immunity enjoyed by senior state officials from the jurisdiction of international criminal courts and tribunals and courts of other states. It examines international and state court practice regarding the question of whether a person’s official position, particularly that of a head of state, can constitute an obstacle to criminal proceedings and prosecution. Positions, including doctrinal ones, are compared on the fundamental question of whether there are exceptions to the  principle of immunity for senior officials in cases of international crimes and whether the existence of such an exception constitutes an international custom. The article analyses the court practice – the International Court of Justice and the International Criminal Court – regarding their positions on the scope and limits of immunity for senior state officials. The article assesses the attitude of states towards the execution of arrest warrants issued by the International Criminal Court for senior state officials. It evaluates the current results of the work of the International Law Commission regarding the codification of norms on the immunity of senior state officials from foreign criminal jurisdiction. In conclusion, it is argued that it is inadvisable to adopt the articles prepared by the ILC in their present form, and that Russia should step up its efforts to conclude bilateral treaties with ICC member states regarding the immunity of Russian citizens.