| ID | 155109 |
| Title Proper | Lingering issues of foreign official immunity in enforcing prohibition against torture in domestic courts |
| Other Title Information | Pinochet’s reasoning reassessed |
| Language | ENG |
| Author | Qinmin SHEN ; Shen, Qinmin |
| Summary / Abstract (Note) | Since the Pinochet judgment in 1999, the torture exception to foreign official immunity in domestic courts increasingly seems to have acquired an established status, in order to better enforce prohibition against torture. The recent Fifth Report of the UN International Law Commission’s Special Rapporteur on Immunity of State Officials from Foreign Criminal Jurisdiction casts this exception to State official immunity as a basically non-controversial issue. But a deeper analysis of the reasoning originated by Pinochet, against a backdrop of most recent scholarship, reveals a rather weak doctrinal foundation. The article explores the four main theories behind this exception claim, one after another, i.e. jus cogens, universal jurisdiction, characterization of torture as a non-official act, and dual responsibility for re-categorized torture acts, and points out the problems therein, albeit without rushing into hasty solutions. |
| `In' analytical Note | Chinese Journal of International Law Vol.16, No.2; Jun 2017: p.311–350 |
| Journal Source | Chinese Journal of International Law Vol: 16 No 2 |
| Key Words | Foreign Official Immunity ; Enforcing Prohibition ; Torture in Domestic Courts ; Pinochet’s Reasoning Reassessed |