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Foreign Official Immunity in the International Law Commission: The Meanings of “Official Capacity”

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This short essay examines the definition of “act performed in an official capacity” in the International Law Commission’s work on the topic of Immunity of State Officials from Foreign Criminal Jurisdiction. International law relies on the concept of “official capacity” in different contexts, and the concept must take its meaning in each context from the purpose it is intended to serve. The fact that a person inflicts pain and suffering in an official capacity within the definition of torture under international law, for example, does not necessarily mean that he is entitled to immunity from foreign criminal jurisdiction for his acts of torture. The essay faults the ILC’s Fourth Report for conflating these different concepts of official capacity and argues that serious international crimes — those crimes over which nations may exercise universal jurisdiction — should not be considered official acts for purposes of immunity.

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