Briefing Paper

Joanne Foakes
  • International courts do not have the capacity to prosecute all international crimes committed anywhere in the world.
  • Attempts in domestic courts to prosecute high-level foreign state officials for international crimes have generally ended in failure. But there have been some convictions of more junior officials for torture and crimes against humanity.
  • State officials are generally entitled to continuing immunity from foreign court proceedings for acts performed in their official capacity.
  • The practice of some courts and a substantial amount of commentary suggest that immunity does not apply to criminal prosecution of former officials for international crimes committed while they were in office, but the exact limits of this exception to immunity are not clear. There remains a tension between the requirements of justice and the need to conduct international relations smoothly and effectively.
  • The International Law Commission of the UN is working on the subject but it is uncertain whether it will help resolve the current uncertainties in a way that reflects the delicate balance of interests in play.