L'absence d'immunité des agents de l'Etat en cas de crime international: pourquoi en débattre encore?

During its work on the immunity of State officials from foreign criminal jurisdiction, the members of the International Law Commission were deeply split. A vote was necessary to adopt the provision codifying the exceptions to immunity ratione materiae in case of international crimes, which is unprecedented. Yet, the very active opposition of the minority is surprising because it challenges longstanding developments of international law, if not the very foundations of the system of international criminal justice. This article aims at identifying the aspects of the régime of immunity ratione materiae that should be regarded as now settled and those that are still debatable. The authors focus first on the main source of difficulties in the codification of this topic, namely, two assumptions on which the works of the ILC blindly relies: the « principle/exception » logic and the « procedural/substantive » character of immunity ratione materiae. Second, they analyse the existing alternative solutions, that in favour of immunity and that in favour of the absence of immunity in the case of international crimes, with the purpose of evaluating their systemic effects.