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Of all the issues facing the International Law Commission (ILC) in its work on the topic of “Immunity of State Officials from Foreign Criminal Jurisdiction,” how to define “act performed in an official capacity” is certainly one of the most difficult and important. If serious international crimes, like torture, are considered acts performed in an official capacity, then foreign officials responsible for such crimes may (unless an exception applies) be immune from criminal jurisdiction in other states for such acts even after they leave office.
The Nuremberg principles affirmed by the U.N. General Assembly and formulated by the International Law Commission (ILC) provide that “[t]he fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him (sic) from responsibility under international law.” Few would dispute this basic principle. More contested is the question of who has authority to impose consequences on individuals for international crimes committed on behalf of states. This is because, if an individual has acted with actual or apparent state authority, imposing consequences on the individual without her state’s consent runs counter to traditional notions of state sovereignty and noninterference.
The happiest outcomes of the work of the International Law Commission (ILC) result when those charged with reporting on a topic elucidate the existing law with maximum objectivity and accuracy and when, where desired, they formulate such possibilities for its avowed progressive development as find a solid basis in emerging practice or international jurisprudence and are unlikely to arouse implacable opposition among members of the Commission or member states of the General Assembly. This history should be foremost in the minds of those presently leading the Commission’s work on the immunity of state officials from foreign criminal jurisdiction as they come next session to report on possible limitations on and exceptions to such immunity. Whether the eventual aim is codification or reform, any consideration of this most controverted and combustible of contemporary questions of international law that is not based on an impartial and convincing assessment of relevant state practice and international case-law and that misreads the political temper of the times will end in tears, in the Commission itself and even more so in the Sixth Committee of the General Assembly.