Whether tacked onto a bumper sticker, T-shirt, comic strip, or witty cartoon, humor offers laconic, entertaining, and simple snapshots of the issues and problems that plague societies. The text of the cartoon in the epigraph presents a humorous take on the main topic of the book, distilling a larger conversation on the limits of justice mechanisms and crimes of government officials into a monochromatic depiction of a serene chat between a father and his son. Contemplating the prospects of different career paths, the boy announces his budding interest in organized crime to his dad. Straight-faced and without missing a beat, his father responds, “Government or private sector?,” which draws on a long-standing perception that associates the incriminating behavior of government officials and private sector executives with unchecked impunity. A spin-off of the original cartoon emphasizes the latter, with the father recommending, “I personally would suggest government for you, my son. They never go to jail.”

How does the cloak of immunity protecting foreign public officials under international law enable their impunity before foreign courts for the crimes they committed for private gain? This was the question with which the book commenced. In answering it, an interdisciplinary attempt was made to come to grips with the structural injustices created by international rules of immunity in preventing well-resourced and internationally protected political elites from accountability for trafficking in persons, corruption and money laundering, and drug trafficking. The ways in which these crimes are perpetrated by political elites constitute an advanced form of criminality in which the perpetrators abuse their authority and personal privileges as public officials and, in so doing, disguise misconduct in the official mandate and even under the pretense of law-abiding behavior. These are the ultimate economic crimes that occur at the nexus of power, privilege, and impunity.

In the late 1980s, a winding series of drug trafficking charges against the then de facto leader of Panama, General Manuel Noriega, led the US government to seek his arrest, following a controversial military intervention into Panama, and trial before a US court. The rejection of his entitlement to foreign official immunity by the US District Court for the Southern District of Florida (a verdict affirmed by the Eleventh Circuit Court of Appeals) culminated in an unprecedented decision at the time – long-term imprisonment of the Panamanian strongman in the United States. Not only did the Noriega court pave the way for subsequent prosecutions of top-tier state officials involved in drug trafficking in the United States, but it also brightly reverberated in the scholarly writing of successive decades concerning matters of head-of-state immunity. It also gained international notoriety and was hailed to be a “triumph for diplomacy and a triumph for justice.”

In 1999, a Bangladeshi woman claimed she had been enslaved by the Second Secretary of the Bahrain Mission to the United Nations in New York City and his wife.1 After signing a contract, in which she agreed to work for their household as a domestic servant, she stated her passport was confiscated by the couple, and she was left to care for their children and perform household duties that held her in near involuntary servitude2 – akin to trafficking in persons. In response, the defendants claimed to be protected by diplomatic immunity that makes serving diplomats exempt from the jurisdiction of foreign courts. Although the case was eventually settled for an undisclosed amount of damages that the Bahrani couple paid to the domestic worker,3 in its statement of interest, the US Department of State categorically emphasized that serving diplomats and their family members hold immunity from suit in the United States for both official and private acts.

Anger and dismay associated with the massive corruption and abuse of foreign jurisdictions, as safe havens for illicit spoils belonging to political leaders and their associates – particularly in oil-rich countries where political elites latch onto natural resources as a source of power, foreign influence, and illicit enrichment – have shaped the landscape of international relations over the past decades. They have grown in tandem with rising inequality, conflict, and human rights violations, refocusing the attention of the international community onto dictatorial-style kleptocracies where these problems have become most prominent. In a bid to amass, retain, and grow their influence, kleptocrats encircle themselves with “yes men” – enthusiastic professional middlemen aiding them in the accumulation of illicit fortunes, such as by laundering millions of dollars through the international financial system. With these destructive processes the impunity of kleptocratic elites grows and the misrule of law contaminates other states and the international community as a whole.

The then ICJ Judge Awn Shawkat Al-Khasawneh defined immunity “[as] … an exception from the general rule that man is responsible legally and morally for his actions.”1 While it is widely acknowledged that serving high-ranking public officials enjoy immunity from the jurisdiction of foreign courts in most circumstances, there is an ongoing debate regarding how far the immunity entitlement extends and whether there are exceptions to it, particularly in cases of serious criminal wrongs. The present chapter reviews the conceptual, doctrinal, and theoretical foundations of the immunities of foreign officials, and their subjective, material, and temporal scopes. It also examines the rules that govern situations when foreign official immunity may not apply or may apply only to official acts, and the conditions for either of these outcomes. The chapter draws from recent developments in international criminal law, international human rights law, and transnational criminal law, and builds on the influential contribution of the ILC on the topic “Immunity of State Officials from Foreign Criminal Jurisdiction” included in the long-term program of work of the commission in 2006.