Immunity of Government Officials from Foreign Criminal Jurisdiction:Theoretical Basis and Clarification of Rules
In the realm of international law,clarity has long been lacking regarding the para-meters of immunity from foreign criminal jurisdiction for government officials.This immunity can be delineated into two distinct categories:personal immunity and functional immunity,each distinguished by variances in subjects,timing,and scope.Personal immunity primarily revolves around the individuals protected by such immunity and is commonly perceived as absolute,while functional immunity pertains to the specific acts shielded from prosecution.The former exhibits ambiguity regarding the range of subjects,while the latter lacks clarity concerning the scope of the exempted actions.Moreover,an ongoing academic discourse grapples with the characteriza-tion of jurisdictional immunity as either a procedural entitlement or a substantive defense within the domain of international law.A thorough examination of the theoretical underpinnings of both forms of immunity suggests that personal immunity should find its foundation in the doctrine of state responsibility.Consequently,it should be reserved for individuals recognized under interna-tional law as possessing representative roles,including heads of state,government leaders,and foreign ministers.Conversely,functional immunity ought to be predicated upon the principle of non-interference in domestic affairs,though exceptions may be warranted for offenses delineated in international law or activities conducted within a foreign state's jurisdiction without its explicit consent.
Immunity from Criminal JurisdictionPersonal ImmunityFunctional Immu-nityDoctrine of NecessityPrinciple of Non-Interference in Internal Affairs
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