Immunities of State Officials, International Crimes, and Foreign Domestic Courts: A Reply to Dapo Akande and Sangeeta Shah
Abstract
The present contribution will not provide yet another analysis of the law of immunities in relation to international crimes; this has been done elsewhere.1 It is instead a response to certain views put forward by Dapo Akande and Sangeeta Shah.2 Akande and Shah disagree with my own conclusion that jus cogens can, and does, prevail over state immunity. They however advance an alternative approach favouring the denial of immunity, and their conclusion as to the lifting of immunity in civil proceedings manifests that the disagreement is not as wide as it could seem.3 The aim of this contribution is to clarify whether, in attacking my views, Akande and Shah have moved the debate forward, or made an original case against the primacy of jus cogens. The following analysis will demonstrate that these objections to the primacy of jus cogens over immunities rely only on factors and evidence that support the conclusions reached in that contribution, disregard the evidence that would stand in their way, and ascribe to some authorities the impact they have never been intended to produce. This writer agrees that, in terms of restrictive immunity theory, whether or not an act is jure imperii or sovereign does not depend on its legality, but on whether it is ‘intrinsically governmental’.4 But it is then argued that if the relevant acts are associated with the policies of the state, and carried out using state apparatus, they should be considered official acts. The approach that…
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