Immunity of State officials from foreign criminal jurisdiction (ILC): A critical review of the compilation of recent State practice re immunity ratione materiae
Since 2007, the International Law Commission has been working on the topic “Immunity of State officials from foreign criminal jurisdiction”. At its 76th session in Geneva, the second reading of the draft articles on this topic continued. In particular, the ILC discussed Draft article 7 on the non-applicability of immunity ratione materiae to certain crimes under international law (DA 7), which remains the most contentious.
In his Second Report, the Special Rapporteur Mr Claudio Grossman Guiloff presented a survey of State practice from recent years, which, in his opinion, reaffirms the existence of these exceptions.
The ICLRC prepared a brief providing a critical review of that selection of cases as to whether it can be relied on in order to substantiate the exceptions under DA 7. A thorough examination of the cases presented is important as the Commission prepares to finalize its work on the topic and in view of the need to exercise particular caution in substantiating its findings.
For most of the surveyed cases, it is unclear whether immunity was actually considered, whether there were grounds for it, and why it was not applied. Deficiencies in the survey have been identified that reduce its evidential value: the inclusion of cases involving crimes not listed in DA 7, as well as cases in which the non-application of immunity can be explained by other reasons not related to the content of DA 7. The representativeness of the sample is also questionable: it covers cases from only eight countries, six of which are European.
It is concluded that the presented compilation of cases, due to insufficient thoroughness and doubts about the relevance of many specific cases to the issue under consideration, cannot be used to confirm the existence in international law of the exceptions provided for in DA 7, and for the same reasons does not give a basis for speaking about a trend towards their formation in international law.
OTHER PUBLICATONS
.jpg)
Areas of professional expertise: Education In 2013, Aleksei graduated from the IKBFU (Kaliningrad). In 2015, he obtained an LL.M. degree with a specialization in international law from the University of Göttingen (Germany). He also completed an exchange semester at the University of Kiel (Germany). In 2024, the degree of Doctor of Law (Dr. jur.) was awarded following the defence of the dissertation at the University of Göttingen. The dissertation was written in the field of international law and concerned the right to regulate in investment and trade law. In 2016, Aleksei received the “International Law in the 21st Century” Award from the ICLRC. The previous year, the Society of International Economic Law highly commended his paper on WTO law in an essay competition on international economic law. Professional Experience From 2016 to 2017, Aleksei worked as a research assistant at the Institute of International and European Law at the University of Göttingen. Later, Aleksei joined the WTO Expertise Center in Moscow, where he handled inter-State trade disputes from 2017 to 2019. He was a member of the litigation team that achieved the first win in a WTO dispute initiated by Russia. Aleksei participated in over ten inter-State disputes, including panel and Appellate Body proceedings, representing complainants, respondents and third parties. He also took part in WTO committee meetings and conducted practical seminars on trade law for representatives of government agencies and large businesses. Aleksei has developed and taught law courses at three universities in both Russian and English. In 2022, he joined the School of International Law at the Faculty of Law of the Higher School of Economics (Moscow), as an Associate Professor, where he teaches subjects related to public international law. In 2024, Aleksei coached the winning team in the moot court competition «Dispute Settlement in the Eurasian Economic Union.» He also received a certificate of appreciation from the School of International Law (HSE University). Before joining the ICLRC, Aleksei worked with the Center as an expert, and in 2020, he officially became part of the team, focusing on issues linked to public international law.
Author of the monograph: Petrenko, Aleksei. The Right to Regulate in International Economic Law: Towards a General Theory with Lessons from the GATS / A. Petrenko. - Göttingen : Universitätsverlag Göttingen, 2024. - 227 p.