CEU eTD Collection In partialfulfilmentthe requirements of for the degree of Master ofLawinHuman RIGHTS VIOLATIONS: WILL THE KING EVER SUBMIT HIMSELF TO HIMSELF SUBMIT EVER THEKING WILL VIOLATIONS: RIGHTS CRIMINAL RESPONSIBILITY OF HEADS OF STATE FORHUMAN OF STATE OFHEADS CRIMINAL RESPONSIBILITY Supervisor: Professor Ana Filipa Vrdoljak Department ofLegalStudies Central European University Budapest, Hungary Walter Acii Ojok Submittedto THE LAW? Rights 2009 By CEU eTD Collection be inspired by my life journey. Many more thanks go tomy family, especially my to siblings back in whoUganda, Ihopewill of public international law thatI would nothave asmuch appreciated if haddoneI not work. this this thesis. Ialso particularly thank her for encouraging me explore,to to afurther depth, a realm I would like toexpress my Professorgratitude to Ana Vrdoljak for supervising and guidingme in ACKNOWLEDGEMENTS i CEU eTD Collection SYSTEM...... 53 CHAPTER 4: THE POTENTIAL WITHIN THEROME STATUTE PERCEPTION...... 26 OFHEADS OFSTATE:CHANGING CHAPTER 3:IMMUNITIES ILTOS OAD NOCMN...... 6 VIOLATIONS: TOWARDS ENFORCEMENT...... RIGHTS REPRESSION OFHUMAN CHAPTER 2:ACRIMINAL HPE :ITOUTO ...... 1 ...... CHAPTER 1: INTRODUCTION iv EXECUTIVE SUMMARY...... i ACKNOWLEDGEMENTS...... 4.1 Understanding the Rome Statute’s Two Pillar ...... 53 System 3.3 The Evolving International Jurisprudential...... 39 Trends 3.2 Doctrinal History and Theories of Officials ...... 32 Immunities 3.1 A Typological Overview of the Doctrine; aPost-Modernist Enquiry...... 26 2.4 Culpability of Heads of State for Human Rights ...... 20 Violations 2.3 Increasing Focus on Individual Criminal Responsibility...... 17 2.2 The Emerging International Criminal Law: Roles and ...... 13 Potentials 2.1 Redress of Human Rights Violations in the Post ...... 6 1945 Era 1.1 Exceptions. 3.3.2 Does not Immunity Equal Impunity? Evaluating ICJ’sArrest Warrant 4Prong the3.3.1 From Arrest toCharles Warrant (Yerodia), Taylor,to Al Bashir. 2.4.2 2.4.2 The Obstacles of Personal and Functional immunities The Paradoxof 2.4.1 Diminishing Criminal Legal Responsibility Summary ...... 44 Layout of Thesis ...... 5 TABLE OF CONTENTS OF TABLE ii ...... 23 ...... 21 ...... 40 CEU eTD Collection BIBLIOGRAPHY...... 93 ANDCONCLUSION...91 CHAPTER 5:GENERALRECOMMENDATIONS 5.1 A Way Forward and Conclusion...... 91 Obligation to Give Effect tothe Arrest Warrant. The Arrest4.1.5 Warrant Al forPresidentOmar Bashir: DebateonState The Party 4.1.4 Supposed Conflict Between theTwoImmunity Clauses (Article 27 andArticle 98) Laws Applicableto 4.1.3 the Courtand Other actors 4.1.2 ICC Crimes, Jurisdictionand Rationale: An Overview 4.1.1 Historical Reasons and Purpose ofthe Rome Statute iii ...... 72 ...... 58 ...... 56 ...... 57 61 CEU eTD Collection reflective of established international customary law. customary of international established reflective as and basisconsidered the mystical truth as isa nearly accepted claim the rhetorically Yet relations’ immunities. to official interstate is‘stability linkingof above, noresearch there assumptions of immunity to the rigor of modern legal investigation. For example, as noted underlyingthe theoretical very reviewedsubject little of But immunities. works scholarly the narrative hardly yet presentedquestioned, without any sound scholarly basis proof.or Official from Foreign Criminal Jurisdiction is Jurisdiction Criminal Foreign from Official of State on Immunities report 2008 LawCommission’s International by the advanced currently reason andthe hasstronger, only immunity leadersgrown retaining on of state insistence the however, contrast, sharp In immunities. blanket of supportive less become increasingly have jurisprudence and scholarship on subject,the notes literature, legal of andanalysis review broad a has comprised which research, confidence. The particularly those that expressly purport derogateto immunities—will also risk the loss of public impunity. If strugglethis islost, the massive human normativerights frameworks—and officials immune otherwise from isprosecution final the battleground in fightthe against establishing headsand of that of responsibility of criminal high-ranking the state other state is thesis the of premise main The rules. these to subject be should violations rights human gross other and crimes international of prosecution the whether examining of view the with general, in Second, much has been written on the doctrinal history of and rationales for official First, is that the theories that for centuries have anchored the notion of official immunities This thesis reassesses the doctrine of head-of-state immunities and, of official immunities official of and, immunities head-of-state of doctrine the reassesses thesis This EXECUTIVE SUMMARY iv the sakestable relations of among States inter alia, the following:-the trite law . A CEU eTD Collection cases of international crimes would do irreparable damage to interstate relations. The research The relations. interstate to damage irreparable do would crimes international cases of in immunities official of restriction further that claim the support to exists evidence whether sponsored andterror suppressing state violations be ofhuman met. rights in the human rights arena. Yet without the removal of relations. It is quite ironical why the idea of retributive action continues to inform the arguments in a restrictions haveresulted the that advanced the argument not have and immunities onofficial restrictions accepted transactions, against fight andoverall court the access to to right respect needthe to (dueto prosecution individual’s claim criminal draws the culpability. impactattentionno the Yet, to of delayed buttressedby immunity for claim the officials state that isalter only not an procedural and does is view This states. other of officials high-ranking and state of heads for issued courts/tribunals international of warrants arrest the executing from states preventing as immunity on law the of interprets currentstate the view inisthat scholarly anemerging aboverooted decisions, the on states this should extension occurregardless ofthe existing binding prosecutorial extends even to cases of crimes of peremptory norms of norms peremptory of cases of crimes to even extends fact of April 112000 of suits against suits the In light of the findings, this thesis urges a redirection of the debate to the question of in for sphereof have example, the commercial spheres, inother states Lastly, Pinochetcase Third,judicialhanded major some down decisions thewithin lastdecadewith regard to by various serving seniorstateofficials (DRC international treaties to prosecute such crimes. In a similar tone, are perhaps are tone, asimilar In such crimes. prosecute to treaties international argue that, under customary law, immunity international undercustomary arguethat, v. Belgium), the tit for tat pattern of retributive action to threaten interstate Qaddafi case, Qaddafi , most notably, , most immunity) v impunity on the due process rights of victim’s, their and immunity the Case ConcerningtheArrest Warrant jus cogens jus Al-Adsani v.UnitedKingdom, Al-Adsani . obstacles, hardly can the goal of status. The argument is that argument The status. obligation ratione personae imposed and in and CEU eTD Collection police force. These concerns are addressed in detail, and recommendations are offered. My areoffered. recommendations and detail, in addressed are concerns These force. police an mechanismitis acourtwithout inpositionenforcement of claim ofthe ICC lightor that the consider I Second, immunity; official to is entitled ordinarily who state asovereign of as president position official AlBashir’s given warrant, arrest ICC’s of the of state execution the the debate about the warrant in two ways. First, I look at the question of both the legality of andSudan’s incumbent Omar president, haveinjected critical HassanAlBashir. I legal analysis into 4Marchthe issuedfor Warrant andArrest of 2009 ICCinternational currently againststanding analogy. by covered been also have immunity international enjoy who officials ranking heads of state since they enjoy the most blanketform of immunities. The situations of other high- of the study, this study scope Asregardsthe debate. in immunity-impunity (ICC) the Court Criminal of International the is limited to consideration of the criminal responsibility of functional necessities of state officials. can that respect solutions sametime at the immunities, and removal the of for against and arguments the weighs challenges, epistemological out the sets keyconcepts, defines perspective, edge of evolution.this human protectionthe of since1945andnotes atthe as repression trend criminality of rights impunity impunity discourse. onimmunity- not scholarship it merebutresearch-based promotes legal rhetoric, debates, filling while agapincurrent therefore, violations. Inessence, human effective redressof rights the and relations ofinterstate abalance thepreservation between amovement towards urges also purposes and challenges posed in contemporary legal legal literature. posedin andpurposes contemporary challenges In order to provide research that is action oriented, this thesis considers as a case in point asacase considers thesis this isoriented, action that provide research to In order Chapter 1 is a general introduction of the subject, that is, the research, the history, and the Chapter 3 examines the notion of thenotion immunity examines from of a post-modern Chapter IV, vi the finalthe chapter Chapter 2 , evaluates the possible role possible the evaluates reviews the evolution the reviews incumbent CEU eTD Collection The world would thus be a safer place for the travel bothof heads of state and average citizens. normative frameworksliein not procedural absolute immunity butrather elsewhere, is, that in in utilizing existing a manner that leaves major human rights violators no place to hide. were an as if they criminal tribunals/courts international from originate that warrants arrest to give effect to necessary measures all taking by immunity in ending be proactive to community international for the is recommendation The effect. to that factual evidence ifis no stability there interstate for responsible is immunity that belief the aside put community international the of members that isit recommended Therefore system. justice of criminal any components essential are the immunity between Article 27andArticle 98of Romethe could Statute beresolved. suggests how regard to tension the with that Analysis isprovided of arrest. warrant March 2009 against Omar Al Bashir“twothis pillar system notion” inbuilt and its mechanisms byillustrating cooperation thecase and particularly the obligation of states parties to give effect to the 4 effectively execute decisions that come from the Statute’s “ Statute’s come the from that decisions execute effectively “ Statute’s Rome of is will been lacking the has what Rather, suggest. not is ICCis madethe and that matter, argument the this of for resolution battleground ultimate the states if taskagainstimpunitythe is toemerge The victorious. findingis that ICC the provides is commitment Unitedmemberof the individual required Nations Security of Council and UN than legal findings inones suggest thisimmunity-impunity battle, that, many more there are political challenges in the process of taking custody of incumbent heads of state. Unwavering inherently lacking in asmanyenforcement capabilities, scholars and practitioners seem to The conclusion is drawn that both timely execution of arrest warrants and speedy trials speedy and warrants arrest of execution timely both that drawn is conclusion The obligation erga omnes . The conclusion is that solutions to the threat of interstate chaos interstate of threat the to solutions that is conclusion The . vii judicial pillar enforcement pillar .” The thesis presents ” to CEU eTD Collection Am. U. Int'l L. Rev. 897. Arrest Warrant forSudanese President OmarAl-Bashir” AmericanUniversity International Law Review 2009 24 4 Justice,Volume 7(2009) Issue 2 Oxford University Press, 2009, pg 325. 3 2 concepts.” separate quite are responsibility cited to I.C.J. Rep I.C.J. to cited 11 April2000 (Democratic Republic of Congo the Rights” (The Hague; Boston: KluwerAcademic Publisher, 1997)9. Courts.” ( Berlin; New Springer,York 2005), “The State Immunity Controversy Internationalin Law : Private Suits Against Sovereign States inDomestic on the Congo 1 individual criminal responsibility are mutually atexclusive norms—not conflict. international law scholars international Paola Gaeta leaders? indicted of lawfully seekProfessor arrest the jurisdiction with tribunals criminal international when context horizontal in the arrest from immunity and in context from vertical the makeprosecution immunity between is to case, adistinction there for individualcourts/tribunals In on states dependentof execution the theirarrest warrants. this by of criminal international incumbent heads state issued lawfully against warrants the absolute inviolability of the official from all coercive acts of foreign states. of Warrant April Congo 11 2000(DRC Arrest the in concerning case the of Justice, Court —aswasInternational bythe affirmed courts foreign before highrankingand ofstate heads of prosecution officials the prohibit other serving only not does immunity personal law, international In state. of heads serving of prosecution full impactof if examines the inaccurate one however,is Paola Gaeta “Does President Al Bashir Enjoy Immunity from Arrest?” Journal of International Criminal Id., See, e.g See The Arrest Warrant Case The Arrest e.g Cassese Antonio “WhenSenior State Officials May Be Tried ForInternational Crimes? Some Comments In legal the prevailingbe scholarships, view seemsto thatofficial immunity and doctrine Given the above, a conundrum would arise in relations to states’ execution of arrest of execution states’ to in relations arise would conundrum a above, the Given Lucas Buzzard “Holding an Arsonist's Feet to the Fire? - The Legality and Enforceability of the ICC's the of Enforceability and Legality -The Fire? the to Feet Arsonist's an “Holding Buzzard Lucas v. Belgium Case”, at p ara 60 ara para 58 4 , the court stated “ think there is there is a distinction to be made. This view has also has view This made. be to a distinction is is there there think European JournalInternational of Law CHAPTER 1: INTRODUCTION CHAPTER see v. Belgium,) the nature of the immunity immunity guarantees of the also Belgium,)nature the Brohmer Jürgen “State Immunity and the Violationof Human v. Belgium),[2002] I.C.J. Rep.536 3I.L.M. [Congo Immunity from criminal jurisdiction and individual criminal 1 See The Case Concerning the Arrest Warrant of Warrant Arrest the Concerning Case The , 13(2002) 853,also , immunity rationae 2 see 3 and many others many and personae 1 Bankas, Ernest K. This distinction This v. Belgium on the CEU eTD Collection Bashir’s recent bid for a re-election despite the grave charges standing against him. against standing charges grave the despite a re-election forbid recent Bashir’s absolute thatconfers framework normative human in facerights of an occurs overarching the moreover,meaningful This, redress. avenuesfor victimsviolations uncheckedandwithout the in perpetuity. power state cling to incentivebecome to have an protections suchloosely regulated some states, enjoy forsuch immunity, the sake of stable relations among States.” to officials State needfor tothe “due[...] accord priority to haveCommission the urged as states states., majority by of be the wellreceived immunity appears to personal thatabsolute indicates Jurisdiction Foreign from Official State of Immunity on Convention UN draft the on report in years,is in recent indictments a smokesreality screen. leaders’ instate may rise appear asapromising demonstrating what that words, other 9 Kolodkin). Jurisdiction, U.N.Doc. A/CN.4/601 (May 29, 2008) (prepared by Special Rapporteur Roman Anatolevich 8 2009) page14. 7 6 5 sentence.” of form some served seventeen only government, or state of heads sixty-seven against ninety-nineindictments reveals of “[o]ut that of State, Heads studies onProsecuting current and former. Recent studies, such as the Ellen Lutz and Caitlin Reiger’s collection headsjurisprudence and immunities the subjectof official states— of the prosecution of on of case in leadership positions. suspects of burdens handmaidenjustice theprosecution unduly butarulebecomes notthe that of been echoed by the ICJ. International Law Commission [ILC], Preliminary report on Immunity of State officials from Foreign Criminal Press, University Cambridge (NewYork: (eds). ofState”, Heads “Prosecuting Reiger Caitlin and L. Lutz Ellen Id., para 58 54 Para Case, Warrant Arrest SeeThe See David M Crane “From Karadzic to Omar Bashir” On the other hand, the International Law Commission’s (ILC) May 2008 preliminary 2008 May (ILC) Commission’s Law International the hand, other the On As a matter of matter drew of methodology,host oflegal literatureand As on work a this a 9 The effect may be a spiral of wrongdoing, that by and large leaves continuing 5 Precisely therefore, immunity although claimed beto a procedural rule 2 New York Times , Excerpts, July also see 24, 2008, Al 8 To the aid of the leaders of 7 In 6 CEU eTD Collection 16 15 14 13 12 55 ICLQ 411-426; Lorna McGregor, “State Immunity Jusand Cogens” (2006) 55 ICLQ 437-445. 11 relations among States.” draft to accord “due priority [...] to the need forState officials to enjoy such immunity, forthe sake of stable Jones Aristide Tachiona in claim torture the to Rights, Human of 10 exceptions immunity. tostate human list questions of onthe rights and ignored already Immunity Property Their States of immunity. official retain they one is right tobe sceptical of the outcome of such alaw, given the strong insistence of states that Jurisdiction, Criminal Foreign from Officials State of Immunity on Convention the on continues disregard the jurisdiction over such andprovidescrimes an unequivocal mandatetostates that they may official positions of offenders in such circumstances. As the drafting process of Foreign Affairs, Mr. Yerodia Abdulaye. This initiative resultedMinister Congo’s inby the International committed allegedly Courtcrimes of war the over jurisdiction universal implement to sought Belgium when case, Warrant Arrest 11 April the is, this of example known well most venuesbeen denied.The inhas state also foreign headsstate of incumbent redress against pursue to procedural immunity option arena, upheld.the Inthecriminal was unequivocally unfortunate indecision AlAdsani from the ranges lackof success This was successful. incourts foreign states headsof incumbent See see Christopher Keith Hall, “UN Convention on State Immunity: The Need for a Human Rights Protocol” (2006) See See See See See Bouzari Al-Adsani UN Doc (A/CN.4/577, para. 126,). The UN General Assembly expects the ILC, in its work on the ongoing Tachiona Jones Lafontant v. Just during the past two decades, none of several Justduringdecades, claims pasttwo none several againstbrought the of civil torture 14 SaudiArabia in Kingdom in the United 2006. in the U.S, to Douzard to in theU.S, v. Saudi Arabia [2006]UKHL 26 v. v. Islamic Republic of OntarioIran, Superior Court of Justice (01.05.02) 114 A.C.W.S.(3d) 57; 2002 v. v. Mugabe, 00Civ. 6666 (US District Court So. of District NY 2001). Aristide, 844 F. Supp. 12 (US E.D. NY 1994) United (No.2) (35763/97) European Court of Human Rights 21 November2001 paras 35 –41 11 This would be the second normative blow in less than a decade. 10 The 2004 UnitedNations Convention on Jurisdictional the v. v. The Republic of Iran inCourt The Superior theRepublic ofIran Ontario The United Kingdom, United The 3 v. Mugabe, 16 In all the above civil claims, absolute 12 which went to the European Court European the to which went 13 and, previously, to Lafontant and, to previously, 15 , and to v. CEU eTD Collection 20 such as genocide, warcrimes, andcrimes against humanity. of evenifheisaccused she or state, of another courts the before proceedings headis immunefrom criminalandcivil absence ofstate of waiver, anincumbent the both a state 19 18 17 King,” theDivine of thedoctrine of asa“relic treated was immunity head-of-state of defence the where and forum judicial a international at occurred of doctrine the rejection first the where Tribunals, Nuremberg of the practice The criminal investigation. to open state engage liftinrulersexpect forwould immunity andleave to themselves practices that them is to unrealistic immunity. It law state of on official the current for the a sound foundation not criticized in many paperthis on The grounds. reliance solely on ICJarestrongly of the that This view and international crimes. and other genocide accused of disregard immunity even donotempower to ifinstruments states the heads of theyare state, of international law, as it then was (and today still could be), it has been “ on relied the ICJ subject, law)on the law (treaty hard inWarrant the DRCCongoJustice decision (ICJ)2002Arrest thus urges stronger initiatives, if state if initiatives, urgesstronger state leadersthus aretobe tojustice.brought intellectual theories in order to insulate leaders from prosecution. This paper has established and modern in be clothed not should mentality wrong” no do can “king the that argument the See Robert Jackson, “ Report to President”the (1945) 39 Supra ArrestThe Warrant Case para 59 (DRC Congo Id.,., para 59 See the Case Concerning Arrestthe Warrant of April 112000, decisionof ICJ the of Feb 2002 This opinion today forms the basis for the argument that international human rights human international that argument the for basis the forms today opinion This jurisdiction under these conventions. remain These Affairs. opposableForeign for Ministers of those including law, international customary under to them requiring extend thereby their criminal jurisdiction, such extradition, extension or of jurisdiction in no way of prosecution affects immunities before obligations States on impose crimes although various international conventions on preventionthe andpunishment of certain serious the courts of a foreign State, even where those courts exercise such a 19 v. 4 Belgium) AJIL , 178, 182 18 The decision went on to state that. state to on went decision The state practice v. Belgium. state practices firmly establishedfirmly 20 can be a foundation for 17 to hold under that, to Due to the lack of jus cogens , in my view, is ” that, in crimes CEU eTD Collection Court. obstructing and the International theAl Bashirof Criminal Sudan arrest surrenderto of Omar Articleprovisions of 98and27,particularly legal currentwith regard tothe is absurdity that state and offers new ways for resolving emerging conflicts from seeminglythe contradictory Part IVexplores thepotential system thewithin Romefor Statute trying anincumbenthead of of theoriesthe immunity, increasinglyunderpinning although losing modern Finally, acceptance. andfunctional necessityimmunities,is whileis removal against of adiscussion preserved. There from immunity redefines and a post-modern for thearguments key perspective, concepts, weighs of notion the on 3takes Chapter crimes. international of be seenasthecore cometo have today in actions which certain stage,” lastly, and, “criminalization stage,” the “enforcement the stage,” “prescriptive the stage,” “declaratory the stage,” is, “enunciative law; the that human rights shaped have that stages five the on emphasis an with violations, rights human redress to need contemporary legal Chapterlegal 2examinesevolving international literature. tothe responses its challenges, researchthe its in through of and history,a review purpose, discussion 1.1 Summary Layout of Thesis The thesis is structured as follows: Chapter I presents a general introduction to the subject of 5 CEU eTD Collection 25 24 23 TUL. 8 NewCentury, of the Dawn the at Protection Rights Human of System Inter-American the of Perspectives and Human Rights Crimes 22 also discussion municipal matterregulated at the municipal sphere is outside the regulatory powers of international law. Forfurther Journal of International Law (London/New York: Routledge, 1997)pg 209. 21 ofsanction” by threats the supported sovereign, include JohnAustin (1790-1859). scholars Such sense. strictest in the ‘law’ valid was law’ if ‘international doubted scholars state. of another territory prevailed matter.” internal an at as[purely] was considered the time, nationals own and their states between relationship “the when as a period era above the describes signalled a non-interference approachlegal regimes. domestic internal respective andtheir states to eventsredress of human rights violations, occurring regardless of the gravity of the abuses, was left to withinindividual 2.1 Redress ofHuman Rights Violations inthe Post1945the Era redress inadequate. redress was internal its that or violation a redress to unable or unwilling is inquestion state the that today, Id., Supra Malanczuk 8editionpages 209-211 See See See PeterMalanczuk, loc., cit., fn27 pages17. Wolfgang Kaleck, Michael Ratner, Tobias Singelnstein and Peter Weiss (eds), Weiss Peter and Singelnstein Tobias Ratner, Michael Kaleck, Wolfgang J. INT'L & COMP. L. PeterMalanczuk,“Akehurst Akehurst's ModernIntroduction to International Law” 7 CHAPTER 2: A CRIMINAL REPRESSION OF HUMAN RIGHTS OFHUMAN REPRESSION 2: ACRIMINAL CHAPTER Also, this ofinfancywas period in the internationaldevelopment of law. Infact some II), World War decade after first duringleast the (and at era War II pre-World In the see Jose .E. Alveraz,“International OrganizationAs Law-Makers, Oxford University Press 200. Human Rights Law (2008)Review 8(3): 571-577. VIOLATIONS: TOWARDS ENFORCEMENT TOWARDS VIOLATIONS: 5(2000): 40-46 22 (1998) 2 pg 325 discussing (1998)2pg325 Kelsen’s theory argued monist which he that no in International law simply did not offer an alternative. Peter Malanczuk Peter alternative. an offer not did lawsimply International 24 To Austin, anything other than “the than ToAustin, a other command anything of general See François Rigaux “HanKelsen on International Law” 6 25 was not law. In his view, international law did law international view, his In law. not was 23 The focus sovereignty, on absolute which 21 Also It didnot matter then, as it does see Cancado Cancado Trindade, CurrentState InternationalProsecution of th revised ed. revised European CEU eTD Collection the International Covenant onCivil and Political Rights and its two Optional Protocols. Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and 33 Seriously (1977); See also, M.CRANSTON, What Are HumanRights? (London: Bodley Head,(1973). because they may simply be providing “benefits” other than “rights”. Also See Ronald Dworkin, Taking Rights 32 Politics and Dynamics of Human Rights (New York: Oceana Publications, Inc., 1968) 98. 31 30 29 xvii, 461 pp. Reprinted 2003 by LawbookThe Ltd. Exchange, ISBN 1-58477-325-1. as we understand today did not take off as a claim enforceable at international law. atinternational enforceable not off take didas aclaim as weunderstandtoday human rights to be perceived as strictly a legal concept. Made even more complex,human rights right,” “human Nations.jurisprudential Besides a and the about controversies theoretical whatconstituted auspices United wasestablished underthe the legal international of moremuch order vibrant hindrances, some stuntedits of which growtheven duringwhen theera, post-WWII a new a and inhabitants. its and state that between existing hostile however relationship [typelaw” of] is “inter-state by law international an definition opinion, Kelsen’s 28 law.” international of subjects are exclusively and solely States, “since the law of nations is based oncommon consent of individual States, and not of individual human beings, 27 26 era through the adoption of the Universal Declaration of Human Rights (UHDR) in 1948, States.” and“regulate between therelationship govern beings” but“individual of States.” human individual of not law “a is law international that in1912 wrote law) international of supporter strong regime. LassaOppenheim (a it law sawasa international encompassing wholly definition. this meet not The International Bill of Rights consists of three main international human rights instruments, namely; the Human Jennings and Watts edition, Oppenheim’s International Law, vol.1 (2008) Oxford Publishers. Oppenheim wrote; Id., pg 17. Id., supra Maurice Cranston Maurice Id., Id.,., See Hans KelsenPrinciples of International Law (1952) pg 201 New York: Rinehart & Company, Inc.[1952]. pg 201 The current International Bill of of Rights, Bill International The current Considered on its own, human rights as a theory alsohad some major conceptual fn 27., Malanczuk cautioned that international human rights treaties should be interpreted with care with be interpreted should treaties rights human international that cautioned Malanczuk 27., fn 31 the linking of human rights to “morality” made it even much difficult for difficult much even it made “morality” to rights human of linking the , What Are Human Rights? (London: Bodley Head,(1973), 26 However, this is not to say that scholars who believed in the validity of 27 HansKelsenfollowed in 1952 with a similarview. 7 33 which duringoriginated War the post-World II 30 This relationship excluded internal See Moses Moskowitz, The Moses Moskowitz, 32 29 designed to 28 In CEU eTD Collection before the Court.” the before 37 36 http://www.un.org/en/documents/udhr/(Last visited Oct 29 2009) 35 nations.....” all and peoples all for of achievement standard acommon as RIGHTS HUMAN OF DECLARATION UNIVERSAL 34 moreover, was in a nonbindingpresented “declaration.” of practice a norm” the for standard “common a towards understanding an of expression an of form the in emerged achieving human rights and freedoms for all peoples and nations.” for standard andcommon of principle “a statement merely its face valueas UDHR the at neighbouring states and international peace. Such states, in the words of Lord Browne-Wilkinson repression that would result in gross human rights violations of policies pursue deliberate determined to wereregimes that there War experiences World II and also affect both the security of states would be illogical. Moreover, many world leaders knew very well even from their pre- adecision leave forin human violations individual Holocaust, hands the to redress rights of jurisdiction. such itwas denied its creation, of in process the ICJwhen, to the state(s) their cases against court only to states in its Article 34 (1). of UNinby the access to the was established Charter for restricted exampleexpressly 1945, the which (ICJ), Justice of Court International The plane. international the on claims such hear to competence hadtheadjudicatorial that a single court not was there justiciable, be consideredto for remedying human rights violations at international law. Even if the claims in the UDHR were basis legal a provide in itself it could nor claim, legal justiciable an internationally import itself Article 34 (1) of the Statute of the International Court of at UThant justice in1971 remarks provides General that “Only seeUNSecretary Also states Id., may be parties in cases The preamble of the UDHR provides that “Now, Therefore THE GENERAL ASSEMBLY proclaims THIS proclaims ASSEMBLY GENERAL THE Therefore “Now, that UDHR provides of the preamble The 35 TheUniversal Declaration of Human Rights was adopted on December10, 1948, Yet in a world shocked and still threatened by the horrors of of World horrors and andYet in bythe WarII the shocked still a world threatened 34 rather than as an establishment of a “legal right” in the proper sense, and, in proper “legal the of a right” establishment as than an rather 37 Thus victims of human rights violations could not take 8 35 At the time of its adoption, states took 36 This declaration could not in CEU eTD Collection 42 trial. for over handed wasnever and Netherlands 41 IMT, Nuremberg, (14 Nov, 1945-Oct 1946) p. 41. before Criminals War of Major Trial Tribunal, Military International of the decision 3quoting pg Heidelberg, Berlin 40 International, (1997) pg 97 Oxford University Press. 39 Commissioner of Police for the Metropolis and ors (Appellants) Ex Parte Pinochet of 24 March 1999 pg 6. 38 by adopted General UnitedAssemblythe on Nations 11 December 1946. International Law codifyCommission to the Nuremberg and which Principles Judgement, was states that had not consented to its jurisdiction dissipated when the United Nations directed the law. international of matter relation to gross law” in “international of at enforcement attempt as root firstsuccessful the Nuremberg took human rights individualsbeinternational law such provisions commit who canthe of enforced.”crimes violations thatII. wereWar World of atrocities addressed the of perpetrators individual of trials in the role adjudicating at military theinternational an law” international international “upholding of name the in claim to arose, plane as a regimes.” their of own shortcomings the over adjudicate to never“were prepared case, in Pinochet’s Convention on Prevention the and of Crime Punishment Genocidethe of 1948 (hereinafter of Nations United the was first The law. international of matter as rights human of protection direction. In 1948 and1949,twomajorinternational instruments emerged that providedfor anew taken have law international of level the at violations rights human redressing about Noting that the attempt to try the German Emperor after WWI aborted because the Emperor took refuge in refuge took Emperor the because aborted WWI after Emperor German the try to attempt the that Noting Lord Browne-WilkinsonOpinion of Lordsthe of Appeal forJudgment in thecause Regina v.Bartle and The See See 39 See AccordingNuremberg’s to ChiefRobert Jackson,Prosecutor “[itis]... and only by punishing Ciara Damgaard, Individual Criminal Responsibility for International Core Crimes 2008, Springers-verlag Maurizio Ragazzi “The Concept of International Obligations Erga Omnes”, Oxford monograph of monograph Oxford Omnes”, Erga Obligations of International Concept “The Ragazzi Maurizio Lord Browne-Wilkinson Opinion speech in Pinochet case cited earlier, pg 6 earlier, case cited in Pinochet speech Opinion Browne-Wilkinson Lord Doubts about the Nuremberg Charter and questions about its authority to try nationals of nationals try to authority its about questions and Charter Nuremberg the about Doubts Thus, of with questionable Charter 1946 (although of Nuremberg the then legitimacy) 38 41 9 42 Since then, questions 40 CEU eTD Collection 1946 that genocide is crimea contrary to the spirit and aims of the United Nations. the declaration made by the General Assembly of the United Nations in its resolution 96(I) dated 11 December 49 countries other on prosecutionof war crimes, placing the samesuch obligation bring to shall prosecuteand onthe country Convention], persons, the [of regardlessin which of the breaches crimestheirgrave nationality, such took place before as its owncommitted, be courts." to ordered have to or committed, have 48 Convention also see ICRC website at http://www.icrc.org/web/Eng/siteeng0.nsf/html/genevaconventions soldiering committed by soldiering parties. committed any contracting state humanity,against for with the provision wrongs trial such rape,murder, andof as torture, child Additional of Protocols for auniversal jurisdiction1977, provided over warcrimes crimes and is nowar). there when even territories of civilians in war time andin situations of by occupation (thatforeign powers is, occupation of Convention whichin (IV), provide was adopted 1949 to specificprotection totreatmentrelating tribunals international before genocide committing of accused persons of trials to door the opened 47 punished, whether they are constitutionally responsible rulers, public officials or private individuals.” 46 jurisdiction. penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its tried by a competent tribunal of the State in the territory of which the act was committed, orby suchinternational 45 condemned by the civilized world. 1946 that genocide is a crime under international law,contrary to the spirit and aims of Unitedthe Nations and the declaration made by the General Assembly of the United Nations in its resolution 96(I) dated 11 December 44 Dec 1948,entered forceinto on12 Jan 1952. 43 war, either or by ina time of crimespeace canoccur genocide,definition of which as either crimes, international as werecategorized human rights of mass violations systematic, defencenor ajustification for non punishment. crime.” is an“international wartime,” timein or peace Convention), Genocide the called crimes and crimes against humanity, which by definition may occur in war time and also in times also and time in war occur may bydefinition which humanity, against crimes and crimes Article 1 of the Convention read together with Paragraph one of the preamble which reads “..Having considered “..Having reads which preamble the one of Paragraph with together read Convention of the 1 Article to alleged persons for search to obligation the be under "shall party each that declared Conventions Geneva The Article IV provide that “Persons committing genocide or any of the other acts enumerated in Article 3 shall be Article VI provides that: Persons charged with genocide or any of the other acts enumerated in article III shall be considered “..Having reads which preamble the one of Paragraph with together read Convention of the 1 Article Unanimously adopted without abstention by UN GA Resolution 260 (III) A of UNthe General Assembly on9 See Article 1, 2, 3-39 and 40-67. And foroccupied territories see SectionIII Also fordetailed discussion of the 45 ; it officialthe additionally would that position provided neitherof perpetrator the bea 43 which overtly declared that genocide, whether “committed whether genocide, whichdeclared that overtly 47 The Convention, when considered together with its two its with together considered when Convention, The 10 46 And the second instrument was the Geneva the was instrument second the And This language implies universal jurisdiction forthe 44 48 In its Article IV, the Convention the IV, Article its In Thus, from that point onward, 49 or as war CEU eTD Collection 57 56 53. Article of Treaties, law the on Convention Vienna character” permitted and which can be modified only by a subsequent norm of general international law having the same accepted and recognized by the international community of States as a whole as a norm from which no derogationis 55 54 53 http://www.un.org/documents/ga/res/39/a39r046.htm (Last visited Oct 29 2009). (“hereinafter Torture the Convention”) adopted on 10Dec 1984, Meering 93, A/RES/39/46.no 52 prosecution." "common of enemies mankindall andall nations have an inequal interest their apprehension and are because offenders the state byany offences arepunishable juscogens observation that committed.” wherever torture over jurisdiction in universal taking states justifies torture of crime of international nature the cogens crime jus cogens of category he went.” wherever international as an torture of [accrediting objective the “[...] in hisspeech, observed Browne-Wilkinson crime] was to ensure a general jurisdiction so that the torturer was not safe 51 Convention also see ICRC website at http://www.icrc.org/genevaconventions (Last visited Oct 2009) 50 behindPinochet, theextradition Augusto which inLondon inof occurred 1998/1999. Convention) of called1984. Torture the and PunishmentAgainst Degradingor Other Cruel, Treatment (hereinafter Torture or Inhuman Convention Nations United is the plane international the on redress rights human of significance Romethe Statute of 1998, for which Internationalthe hasCriminal jurisdiction.Court of occupation. Demjanjuk Id., pg 7 Article 53 of The Vienna Convention on the law of Treaties,3). 7(Pinochet defines pg at speech Jus cogens orBrowne-Wilkinson’s peremptory SeeLord Supra norm “[as] a norm Regina United Nations ConventionAgainst Torture Otherand Cruel, Inhumanor Degrading Treatment orPunishment Article 1, 2, 3-39 and Article 40-67.1, 2, Andforoccupied territories see SectionIII Alsofordetailed discussion of the See Article 8 of the Rome Statute. A third crucial humanlegal A third instrumentcrucial iscredited for theevergrowing that rights v. Bartle and The Commissioner of Police for the Metropolis and ors Ex Parte No3 Pinochet No3 Parte Ex ors and Metropolis the for of Police Commissioner The and Bartle v. Petrovsky (1985) 603F. Supp. 1468; 776 F. 2d. 57United States Court of AppealDecision. 57 50 The crimes in both conventions are listed among the core crimes in Article 8 of Article in crimes core the among listed are conventions both in crimes The 54 Like the two previous crimes discussed above, torture also falls under the 55 and, as correctly stated by the English Law Lord, “[t]he jus “[t]he Lord, Law English the by stated correctly as and, 56 This view was echoed in Demeanour v. Petro sky,in v. Thisview inDemeanour the wasechoed Petro 52 This convention was the principle legal framework legal principle the was convention This 11 51 53 As Lord CEU eTD Collection PUBL. ORDER 193 (1982), inD'Amato (ed. 1994), pp. 227-229 64 65 Rights (New York United Nations. 1983. UN Doc.ST/HR/2/Rev.2 UN Sales No. E.83.XIV 2. Chap II para 67.14 63 62 61 60 immunity. of the grounds claimant, a torture victim by the Government of Kuwait was denied civil compensationin the UK courts on the became enactedinbindingstage,” During“enforcement conventions. modalities the subsequent the“prescriptivemore values stage,” when specificFrom and became arose general this process instruments. international in terms general more in declared were identified values the which in stage,” “declaratory came the Then identified. were sharedvalues where universally stage,” sums up the evolution humanof as occurringinfiverights Thefirst stages. wasthe “enunciative 59 February 2002 General List No.121 (International Court of Justice), available at http://icj-cij.org. [2006] Al-Adsani in torture for claim civil unsuccessful marked and ever increasing legal importance,marked and everincreasing legal under conventions.” jurisdiction these exercise courts such a those where law[...]even international customary under immunities conventions on the prevention“the decision, whichruled international various from be ArrestWarrant that drawn ICJ the and punishment hierarchy theory, arestill laggingbehind the doctrine of immunity.official conclusion This can of certain serious crimes [...]in no way affects 58 which is the main theme of this thesis. As first noted in the Arrest Warrant case immunity, official of doctrine the is them among problematic most the and numerous, are norms Mugabe Supra Lafontant Tachiona Jones Al-Adsani See Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congothe See See the 1971 Address by then UN Secretary General U Thant at United Nations Actions in the Field of Human Excerpts from M. Cherif Bassiouni, International Criminal Law and Human Rights, 9 YALE J. OF WORLD 60 v. The Arrest WarrantCase In conclusion, contemporary human rights have come a long way in the acquisition of acquisition in the way long a come have rights human contemporary conclusion, In The challenges in applyinguniversal in jurisdiction relation the aboveto threejus cogens 61 before the Houseof in Lords Unitedin Kingdom, and thethe U.S.cases v. Tachiona of Saudi Arabia[2006]UKHL 26 and Lafontant v. Aristide, v. v. v. Mugabe,00 Civ. 6666 (US District Court So. District of NY 2001). Aristide, 844 F. Supp. 12 (US NY E.D. 1994). United (No.2) (35763/97) EuropeanCourt ofRights Human 21November 35–41;2001 paras The para 59 62 63 it seems clear that jus cogens norms, despite the normative 64 12 albeit amid major obstacles. Cherif Bassiouni Cherif obstacles. major amid albeit v. United Kingdom, 59 in Jones v. Saudi Arabia v. Saudi inJones 58 v. and later in the later and Belgium), 14 65 CEU eTD Collection 71 May 2006. State 70 Free of University the at Law Evidence of and Law of Procedural Department to submitted Thesis 69 68 67 263”, Robert Jennings and Arthur Watts (eds), Opprenheim’s International Law (9 als Individual Criminal Responsibility forCore International (2008Sprinher-Verlag Crimes Berlin Heidelberg) 28,also “International Criminal law”,2 Criminal Law and Procedure”(LondonCambridge University Press,2007) pg,5.,also judicial forum and the reluctance of nations toprosecute perpetrators internationalof crimes.” criminal international an of absence “the by stunted been not growth its had old years 175 been Swanepoel,have in scholarly works and ICLcouldalbeit 2008respectively,according 2006 to Law” in International Public of newbranch itis “a relatively Nuremberg, datesalthough back that the1945/1946 Trials2008, observes that, to hasahistory of ICL 66 stage.” “rudimentary termed International Criminal Law (ICL),has developed gradually. establishment, contemporary this scholars, of a number To law. international of regime criminal emerging within discipline corpus of the publicinternational law developing afully-fledged Law: RolesandPotentials 2.2 TheEmergingInternational Criminal (2.2). section next the in aswill beis community at, illustrated tobewhereinternational currently appears This stage binding rights. legally certain forof theviolation law ininternational areprescribed penalties of enforcement were put in place. The fifth stage is the “criminalization stage”; during this stage, Swanepoel loc.,cit., fn 80, pg 21. Damgaard, loc.cit., fn 74, pg 28 Cornelis Francois Swanepoel “The Emergence of InternationalModern Criminal Justice Order” (2006) Doctoral 4 page loc. Id.,. Antonio Cassese, International Criminal law, Second Edition (Oxford) University Press, 2008)4 See see Georg Schewarzenberger, “The Problem of an International Criminal Law” (1950)3 Current Legal Problems Legal Current (1950)3 Law” Criminal International an of Problem “The Schewarzenberger, seeGeorg Robert Cryer, HakanFriman, Darryl Robinson, ElizabethWilmshurst “AnIntroduction to International The past two decades, is witnessing a steady growth in legal scholarship discussing an in discussing legal scholarship asteady decades, isgrowth witnessing two The past 68 Swanepoel nd ., edn.(London, Oxford University Press, 2008)pg4,also 69 and Damgaard 13 70 expresses in views similarseparate 66 th Antonio Cassese, writing in edn, London,1994) 5-7. 67 see and still is in the see Ciara Damgaard, Ciara Antonio Cassese, Antonio 71 CEU eTD Collection 75 Peterson, 2005 www.robertjackson.org (Last visited Oct 29, 2009). 74 the atrocitiesWarthe ofWorldcould IIhave beentried. ( applied retroactively be had to of Charter Nuremberg whythe thereason this lackwas that Ehrenfreund alsoargued during in “Reflection Nuremberg hisEhrenfreund,on the that whoremarked Trial”, 2005speech, espoused inby U.S.Judge(retired)The Norbert agreementwith that viewwould be above exist.” not does law international of branch a Such law. criminal international an of existence 73 72 humanity,against aggression genocide,torture, terrorism)makeand and to thosewhoengage in (war crimes, crimes conduct of categories both proscribe certain to designed rules international of body “a as defined be can ICL views, Cassese’s In law. international public of umbrella itself not aself-contained regime. ICL was conceived and has continued togrow under the broad above the especially considering comment. by are debatable, posited SchwarzenbergerThe arguments both andEhrenfreund therefore would flyin the faceof mass the of scholarshipin used drafting of the NurembergCharter. the scholarly view suggesting points, thatNuremberg was applying newlaw and notexisting law of theaggression, to question whenreferring said he crime,” international renowned ICL whowritingscholar, in that ICL did1947 argued not exist atthetime; “[a]n Remarks of Norbert Ehrenfreund, “Reflection on Nuremberg Trial” June 13, 2005 Transcribed by Charlene J. by Charlene Transcribed 2005 13, June Trial” Nuremberg on “Reflection Ehrenfreund, ofNorbert Remarks Georg Schwarzenberger, “The Judgment of Nuremberg” (1947)21 peace” against “crime old the for beanew name to known is of“Aggression” crime The Id., had to draft the penalties that went with those crimes. jurisdiction. writehad They to laws.hadthe They write to the statutes thatcrimes. the fit They there shouldThat summerof 1945therepresentatives of thefourAlliedmet powers in ... London todecide if be an international trial....There was no law. There was no court. There was no The possibility of The beingpossibility however, isICL anyolder,of refuted bySchwarzenberger, a Therefore, whileTherefore, weshouldas a regardICL in neverthelessisdevelopment it in progress, ex postfacto ) as there were no international criminal statutes under which statutes criminal international no were ) asthere 14 74 75 Tulane Law Review While these views raise interesting raise views these While 329at349. 72 “presupposes the 73 CEU eTD Collection 82 criminally prosecute and thereby repress human rights violations occurring in territories, their violations rights occurring human and repress thereby prosecute criminally impress needthe key states potential: to human rights-oriented two (i) upon potential the to mustStates, gradually to turn protectionthe humanof beings[...]” This in my ICL gives opinion, of legitimate interests the safeguarding duly law,course while of added that “International 81 80 Statute of the International Court of Justice, and to the hierarchy stipulated therein. notedcontrary, as by and Cassese,there regard given Damgaard, Article be should Cryer, 38ofthe to however, do not treat the laws of criminal tribunals or courts as the primary source of ICL. On the approach approach has been gradually supplanted by a human-rights-oriented-approach [...] Prosecutorv. DuskoTadic in for formerChamber the Appeal International Tribunal The centered. Yugoslavia (ICTY) 77 76 of interstate conflict. ishe amatter Aggression, notes, bygovernments.” committed own those their abuses including “[g]enocide andcrimes against humanity toprotectpersonsevolved from human gross rights that “[w]ar crimes [for example] originate from the lawsaccretion.” and customs law criminally makes international hascome author intoresponsible beingbygradual the of war,” liable.”such conductscriminally 79 78 courts.” international criminal law to be would lawapplicable the international criminal sense, strictest general international law.” under jurisdiction given been have tribunals or courts international which over offences “those as Tadic case ICTY 1995 para 97 Id Cryer, Hakan Friman, Darryl Robinson, Elizabeth Wilmshurst, loc. cit., fn. 74 page 1 Id., Id., page 4 Wise E.M et al“International Criminal Law: Cases and Materials.” Cryer loc., cit., fn 74 page 2 ., pg 1 page 4 Interestingly, almost all ICL crimes ICL all almost Interestingly, 79 On ICL crimes, Cryer considers that the sources of ICL crimes are varied. He states He varied. are crimes of ICL sources the that considers Cryer crimes, OnICL 77 The other suggested definition is by Robert Cryer, who defines international crimes international who defines is Cryer, by definition Robert suggested Theother 81 78 drew this link when it noted that: “A State-sovereign-oriented Wise, who espouses a similar view, wrote in 2006 that “[i]n the 76 Cassese adds that the list of “acts for whose accomplishment whose for listof “acts the that Casseseadds and their constitutive elements are human-rights right human-rights are elements constitutive their and 15 ( New 2000)4. York, The above views, 82 The Tribunal 80 and that and CEU eTD Collection international law traditionally aimed toprotect. aimed law traditionally international Rep 2006 86 security. and peace international and human rights between is there is linkage a close Second that neverprosecuted. get most part adjudicate by such leadership theirshortcomings. Thus own crimes a regime’s would forthe fairly not oppressive is do regimes 2.1 that, inlesson Thefirst Chapter discussed future. as the secure to need the and past the of lessons the both from arisen has era, II War post-World as wrongful acts attributable growth, This most state. the only to of backjust the which dates to omissionsacts and in or internationalwhich conventional law would havebeenregardedmerely criminalize to continues and criminalized has It mandates. these fulfill to inorder sovereignty inroads human intosuchas being”sacredspheres making “individual traditionally the major and human rights and for fundamental freedoms for all without distinction[ ...] distinction[ without 85 all for freedoms fundamental for and rights human 84 83 makers new law bearersand new rights actors, new and law ischanging, international of law. The“ of international and of purpose ICL have inmany ways led itto resolutely from depart traditionalthe conception nature above,the Giventhe gravecrimes. governmental of inthecommission culpable officials further increase its role in directly prosecuting andpunishing individuals, including high-ranking could ICL courts, and tribunals criminal international of system growing its through (ii) and added toICLlists, crimesbeing are revisited, traditional being emphasis also with an placedon criminal repression of violations. Lastly, as new crimes that are prevalent in the present timeemerging. With newthis rise, upholdingindividual asget amatterrights internationalof a demands See Jose .E. Alveraz “International Organization as Law-Makers” (Oxford University Press, New York , 2005) New York Press, University (Oxford Law-Makers” as Organization “International Alveraz .E. SeeJose Id., Forfurther discussion see Article 1(3) of Charter. the To achieve international co-operation[....]in promoting and encouraging respect for Note that states traditionally enjoyed exclusive monopoly overinternational law Chapter II. subjects 84 In fact the two are dependent variables. ” it seeks to protect are not” itseeks toprotect “ the 16 83 ICL is asserting the increasing importance of ICLimportance is increasing the asserting subjects 85 Third, perceptionthe ” that conventional 86 are CEU eTD Collection priority. universal the becoming isincreasingly human enforce rights tobetter how chapter, previous the 90 Nov. 1945-Oct 1945. Also See United Nations General Assembly Resolution177 (II), paragraph (a). 89 of humanity as much as genocide and other warcrimes do in thepresent-day. conscience the shock longer no would piracy that is difference only The character. constitute its among rape murder, 88 obsolete as it does not meet the modern requirement of international crimes. jurisdictionthe of the nascent International Criminal Court (ICC). Some commentators thatargue piracy becomehas 87 to impossible [be] would it authors, individual their to directly crimes of acts attributing “without notes, correctly asCassese Second, impotent. proved laws domestic parts, most the of international law be enforced.” entities,it and[that is] only by who individuals punishing commit such cancrimes provisionsthe by abstract bymen,not lawarecommitted international against “crimes proclaim to that first the Nuremberg wasperhaps trials at The in sections. previous the discussed some of were which grown alongside International Criminal Law, particularly majorlegalthrough developments, has that isanotion forcrimes international responsibility bear direct perpetrator(s) individual Responsibility Criminal on Individual Focus 2.3 Increasing law. international humanity.” of conscience the to shocking crimes international “core perpetrator’s state, with the assumption that domestic laws would punish domestic would perpetrators. punish the with laws that state, assumption perpetrator’s the the on squarely doing” wrong “international for responsibility placed which responsibility Judgment of the International Military Tribunal, (IMT) Trial of Major Criminals before the IMT, Nuremberg (14 This is not to say that piracy did not have an element of human rights violation, that act infact had an element of This probably explains why piracy althoughone of the oldest international crimes is not among the crimes within See Antonio Cassese,International Criminal law, (Oxford, 2008)2 ednpg 33 The idea that the state as an abstract entity should be kept separate from crimes sothat from crimes beseparate kept entity should as an abstract state the The ideathat This proclamation arose because of the gaps in the traditional perception of state of perception in traditional the gaps becauseof the arose This proclamation 88 This explains the increasing shift to the concept of individual criminal responsibility at responsibility criminal individual of concept the to shift increasing the explains This 89 17 87 As is illustrated in this and inthis is illustrated As 90 For CEU eTD Collection 98 International Criminal Justice 5 (2007), 913-915. 97 96 95 as corporations or states. or as corporations a “individual”Damgaard, word the “natural law incriminal entities denotes such andnot person” 94 Heidelberg, 2008)12 93 92 91 in [...] crime complicity of collective andrelevance thesignificance negates by splitting the term intoparts, two thatis “individual[ly]”“criminal and responsibility.” rea).” actus and crimes (mensrea of element andobjective subjective the determine question thus is, of theThe two criminality. which individual of existence level the implies would criminality collective best definition, By serve question. the deterrence goal of criminal justice. victim” one one fact, author, one of paradigm a“mononuclear builton law[...] criminal traditional that opines Manacorda, Stefano maxim in Latin the encapsulated principle general explaining collective criminality.” collective explaining criminality individualas criminal as responsibility a principle [would be]inadequatefor responsibility to international crimes in that “such categorization cannot account for macro Stefano Manacorda “The Principle of Individual Criminal Responsibility,” AConceptual Framework Journal of Javid Gadirov “ Mapping Criminal Justice” Supra page 1 Ciara Damgaard, “Individual Criminal Responsibility Corefor International Crimes”( Berlin: Springers-verlag Attonio Cassee Supra page 36 Id.,., Id., Id.,, Id., pg 13 pg 12 pg 33 With tothis notion,reference Damgaarddefines individualcriminal Clara responsibility Critics of thisnotion argue that overemphasisindividual on criminal responsibility commission of which he/she has not in some way participated, or for an omission that cannot be attributed omission to an him/her. for or participated, way some in not has he/she which of commission that beheldaccountable noonemay forhe/she acts hasnot or performed in the responsibility. for responsible the unlawful actionsof others,whichencompassed iscriminally inthe term “collective being to opposed as actions, unlawful own his for responsible a phrase commonly employed describeto the scenario where an individual is criminally 94 ” She thus defines individual criminal responsibility as:- responsibility criminal individual defines thus ” She 95 98 This position, however, still leaves open one recurring one open leaves still however, position, This 97 raises difficulties in applying individual criminal 92 18 nulla poenasine culpa : 96 One suchcritic, 91 This is the 93 To CEU eTD Collection International Criminal Justice principle. above the reiterated Jurisdiction” Criminal Foreign from officials State of “Immunity With their adoption, these principles became part of international law. international of part became principles these adoption, their With formulated. of were in Nuremberg the LawCharter the Recognized of Principles International the basis, this On crimes. international for individually responsibility assigning of importance the responsibility yetare to convincingly counter this view. 2009), also 106 99 officials. includetheICTY Thesetribunals individualhigh international for criminal core regards to with responsibility state ranking crimes governingreinforce of theprinciple statutes that andadopted Judgments andPrinciples Nuremberg the on built have which courts, or tribunals criminal international other of birth law. international under responsibility from him/her relieve not IV and III inPrinciple affirmation the was principles person’s criminal liability the person’sreflects individual culpability” The has view beenserved goalof deterrent prevailing “each the lawisbetter that criminal when 105 104 103 not relieve him from responsibility under international law, provided a moral choice was infact possible to him 102 (Last visited Oct 29,09). Tribunal adopted by United Nationsthe in1950. principles The can be found on http://deoxy.org/wc/wc-nurem.htm 101 UN Doc A/64/Add 1 (1946). 100 Trial. to Emperor German the Article 25 of The Rome Statute of the International Criminal Court, www.icc-cpi.int/menus/icc (Last visited Oct Supra Article 6 of ICTR Statute, Article 6 of ICTY Statute. For details information on ICTY see www.icty.org Id., see (Last Principle III visited Oct 2009) Id., Principle iv, states that The fact that a person acted pursuant to order of his Government or of a superior does Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the See United Nations General Assembly Resolution177 (II), paragraph (a). GA Res 95, UN GAOR, 1stSession, Vittorio Emanuele Orlando Challenging International Criminal Justice On the Aborted Decisionto Bring In addition, the recent ILC’s May 2008 preliminary report of the Rapporteur onthe of Rapporteur the ILC’s MayIn addition,report recent 2008 preliminary the This was position the framersthe of Principlesthe in of Nuremberg adopted recognizing see Gerhard Werle “Individual Criminal Responsibility inArticle 25 ICC Statute” See 5 4(2007)953-975.no. www.unictr.org (Last visited Oct 2009) 104 , ICTR, 19 105 102 and the ICC. that official capacity of an offender does 103 This ideal have inspired the 106 99 ; proponents of collective of ; proponents 101 At the heart of these Journal of 100 CEU eTD Collection compliance of domestic laws with international law. international lawswith of domestic compliance necessary the elementof the has introduced for example, law, of rule of the definition the above theoretical by with vested co-exist inheadsof immunity theirstate of unclearhow office becomes reason assumption. But, rule of law has been defined in many ways. The UN’s the governed are equally subject to the same law of land.” samelaw of the tothe areequallysubject governed the Kanyeihamba contends that, the core of assumption of the rule of law is that “both the rulers and any distinction. all without persons to law equally the law;applies rule of that 2.4 CulpabilityofHeadsStateforHumanRightsViolations prosecution.” in criminal impleaded be directly cannot therefore and law, English or international http://www.unep.org/ourplanet/imgversn/153/annan.html (Last visited Nov 2009). 112 111 Zimbabwe, 1-4November2007. Pg 17 Opportunities, presented symposiumat the onthe Rule of Law, Human Rights and Constitutionalism Harare, a on 110 proceeding criminal ofa nature indirect to effect give 109 United States Justice (ICJ), immunity isimmunity Justice (ICJ), regarded Unitedthe Kingdom, Court European of the andHuman Rights, International the Court of 140 139 5 May-6 June and 7 July-8 August 2008. Jurisdiction, UN Doc A/CN.4/601 by Special Rapporteur Roman AnatolevichKolodkin ,ILC 60th session Geneva, 138 137 of comity.” asagesture [...] foreign state to state forum the immunity jurists, by has been and“a ForU.S of scattered fragmented. granted a matter privilege definitions. practice (including injudicial date),rulings to still have notacquired universally agreed on to the report, both the concept of “immunity” and that of “state official,” although widely used in concern. a similar raised also Jurisdiction” Criminal Foreign from Officials State of immunity. on treaty multilateral of a absence Accordingmisuse long Fox, thistothe immunity.muddled isattributable of to thedoctrine long have that concepts and terminologies key of misuse and use the of study the to attention Enquiry 3.1 ATypologicalOverviewoftheDoctrine; a Post-Modernist See the Decision on the Arrest Warrant Case cited earlier. cited Case Warrant Arrest the on Decision Seethe See Republic of Austria International Law Commission, Preliminary Report on Immunity of State Officials from Foreign Hazel Criminal Fox The Law of State Immunity (2008) 2 Id., CHAPTER 3: IMMUNITIES OF HEADS OF STATE: CHANGING OFSTATE: HEADS OF 3: IMMUNITIES CHAPTER The above variances have also characterized the meanings various scholars have scholars various meanings the characterized also have variances above The As earlier raised in the introductory part of this work, very little research has paid 139 Because of been of has lack focus Because of definition fieldthe the the a common of v. Noriega (1990). v. Altmann, US Supreme Court, 327 F3d 1246 (2004), Also see Clinton 141 not PERCEPTION as merely a gesture of of comity agesture as merely nd Edn Oxford University Press pg 2 137 26 The recent report of the ILC on the “Immunity 140 In contrast, in the jurisprudence of jurisprudence inthe contrast, In but a legal right and a rule 138 v. According Jones CEU eTD Collection 194-211. Immunities of States and Their Property” 150 149 49 No. Supplement Session, Fifty-ninth (A/59/49). Assembly, General the of Records Official annex, 59/38, resolution Assembly General See 2006. in force into Entered 2004. December on2 Nations United the of Assembly General 148 2. page 1402, Paper 2006 Year Series Legal bepress Model Westphalian the to 147 146 145 144 Publishers, 1984) pp.1 143 cites Stein in :LdR/VR, pp 132. 142 state but to the ruler of a state Badr writing immunity”back in1984defined“sovereign as accrues not immunity to the that the not tobe held responsiblefor by their acts of (judicial)the organs states.” other organs its and state a of right “the mean to immunity” “sovereign defined Stein, citing Brohmer, meaning “state immunity.” meaning “state immunity.” the Convention was to cover the jurisdictional immunity of states and their property, and in its in and property, their and states of immunity jurisdictional the cover to was Convention the personae. rationae officials state to accrue “representatives.” including state in term Articleiteven of its as though “state” paragraphs 1, defined definition the word and Jurisdictional Property their 2004 Convention Immunity on States of “sovereign” isused innot international present-day instruments. It is thus surprisingnot that the word meaning. Besides,the its because contextual vagueandarchaic of uncommon perhaps been has term (“sovereign”) the the usageof years,in recent However, ruler. the inference to mean the “topmost position.” no higher power.” For Further Article 2 (1), (b), (iv) “State means (iv) representatives State of the acting in thatcapacity;” discussion on the Convention Id., Peter Malanczuk, Akehurst’s Modern Introductionsee to International Law 7edn. cited earlier pages 188-189 AntonioDavid Cassese,International criminal law, 2nd (Oxford;ed. New York: Oxford University Press,2008): 302 P. Stewart, See Gamal Moursi Badr, State Immunity, AnAnalytical and Prognostic View (Berlin: Martinus Nijhoff “The UN Convention on Jurisdictional See Jackson N. Maogoto The Final Balance Sheet? The International Criminal Court's Challenges and Concessions and Challenges Court's Criminal International The Sheet? Balance Final The Maogoto N. Jackson See JurgenBrohmer, “State Immunity Violationthe and of Human Rights” (Berlin: Martinus Nijhoff, 1997)pp. 3, United Nations Conventionon Jurisdictional Immunities of States and TheirProperty. Adopted by the 144 Another opinion is that of Peter Malanczuk, who sees “sovereign immunity” as immunity” who sees“sovereign Malanczuk, is of Peter that opinion Another 147 In the medieval era, the sovereign in no doubt was the monarch and by and monarch the was doubt no in sovereign the era, medieval the In 145 The vague word here is “sovereign,” a word associated byVattel associated aword is “sovereign,” here Thevagueword 146 143 149 In Jackson Maogoto words “to be sovereign is beto subject to ; in other words, what Antonio Cassese defines as “official as defines Cassese Antonio what words, in other ; The American Journal of International Law Yet, the Convention hardly dealt with the immunities that 150 The title alone, suggests that the intended scope intendedscope the that of alone, Thetitle suggests 27 , Vol.99, No. 1(Jan., 2005) 148 does not employ the 142 However, CEU eTD Collection under international law to ofheads State and all persons its over and territory over exercise has jurisdiction to right the “[e]very State that provided an understanding of instancesthe “immunity”when may Articlearise. 2thus provided law and ininternational “immunity,” a butrecognizedexistence its omitted definition to United NationsDeclaration Draft of RightsandDutiesthe of of States 1949. 2009 by LawbookThe Exchange, Ltd. 1949. Also see Bowett, D.W.Self-Defence inInternational Law. New York: Praeger, [1958]. Page 43 Reprinted 155 154 153 152 151 definition, universally accepted immunity on the other hand refers to immunity that accrues to the state as a man-made entity. diplomats. State state by extension ruler and tothe accrues immunity that for term correct is the immunity” “Official immunity’. ‘state rather but immunity’, ‘official meaning not as immunity’ entity.” is a distinct ruler thenation’s that and state the is solely sovereign the that recognition growing is now There itself. state the to state [...] somefissures equated 1967, haveseparated head-of- conceptual ancientnotion the the that personae.” ratione State of heads law to own prejudiceterms, privileges this is“without to underand immunitiesinternational accorded by the U.S. District Court Judge Victorby Marrero DistrictCourt U.S. the Asstated be is andthusshouldpractice of this reconsidered. extremely conflation troublesome The “state officials.” iswith conflated “state” if little word legal use willthe be of instrument draft, titled the Convention on Immunity of Officials from Foreign Criminal Jurisdiction. See Declaration of the Rights and Duties of States of128 1949, note supra in YearbookReport Preliminary ICL of The See the International Law Commission, See Tachiona Supra See Article 3 (2.) states that “The present Convention is without prejudice to privileges and immunities accorded immunities and privileges to prejudice without is Convention present “The that states 3(2.) Article The second problematic term is “immunity” itself. The term, which also lacks a which Theterm, also itself. is “immunity” term The second problematic v . Mugabe, 2001US Dist. LEXIS 18712, 33-34 (US S.D. NY 2001). 154 ratione personae first appeared (in a universally accepted document) in document) the accepted a (in first appeared universally 151 153 In addition, the ILC is currently preparing a separate a preparing iscurrently ILC the Inaddition, The correct usage thus would be to treat ‘sovereign usagethuswould Thecorrect betotreat 28 .” in Tachiona 2001caseof the 155 v. The declaration The Mugabe “since 152 This CEU eTD Collection proceedings before “certain international criminal courts, where they have jurisdiction.” have they where courts, criminal international “certain before proceedings 161 160 159 2002Report page 64 para3. 158 of 14 February 2002 para 60page General list No 21. 157 Warrant Case jurisdiction.” having courts international useful explanation in reason the of why the ICJ’sopinion immunityapply “certain would not to State.” a territorial of authorities administrative or judicial the of jurisdiction the from “immunities means immunities jurisdictional State” authoritiesa territorial of competent by the jurisdiction of exercise to, the follows: Immunity means “the privilege of exemption from, orsuspension of, ornon amenability as be defined could immunities” “jurisdictional “immunity” and that terms suggested Rapporteur does not imply absence of immunity, while absence of immunity does not imply jurisdiction."' 156 for Sierra Court by Special theinvocation the basisbe of the also The could above state. another principlethe sovereign equality, of fromprohibits which astate adjudicating conductof the wouldbeviolating courts whichthe state; if were, they of another powers thecoercive exercising jurisdiction’.” from ‘immunity for phrase shorthand common the is “‘Immunity’ that stated specifically immunities.” “jurisdictional means case, Warrant ICJArrest the to according “immunity,” This a state.” of “jurisdiction the Article 2suggests term that the “immunity” asmeaning should be understood “immunity” from thingsto the immunities subject therein, recognizedbyinternational law.” The ICJ stated that “..an incumbent or former Minister for Foreign Affairs may be subject to criminal to maybesubject Affairs Foreign for Minister former or incumbent “..an that stated ICJ The Article 2, paragraph 1(Draft), the Second Report on the Jurisdictional Immunities of States and theirProperty. See separate joint opinionby Judges Higgins, Kooijmans and Buergenthal inthe Arrest Warrant case, pgICJ Case Concerning The WarrantArrest 2000(Democratic of 11 April RepublicCongo v. Decision ofthe Belgium) Article 2 of the Draft Declaration of the Rights and Duties of States of 1949. The ICJ stated that "jurisdiction Id.,., In the ILC report on “Jurisdictional Immunities of States and Their Property,” the special note 61, paras 24-25. 158 157 The jointopinion by Judges Higgins, Kooijmans, and Buergenthal 161 The logical view is that “such courts” arenot “such courts” viewisthat Thelogical 160 29 This distinction is essential in that it may offer may it that in essential is distinction This 156 The language of See 159 the ;and Arrest CEU eTD Collection 166 D.C., on 11April 1990, p.52. states”, paperdelivered atthe thirty-first annual convention of the International Study AssociationinWashington, 165 164 Immunities,” state) of another 163 conduct onthe adjudicate doesnot state sovereign (one states of sovereign equality from derives Chambers of SCSL, Case No. SCSL-2003-01-01 AR72(E). Para 51, SCSL stated that “principlethe of immunity 162 an of example as agood finance of minister a cites Forcese example, For sphere. international in the astate of behalf the on act or represent occasionally they because immunities international terms, however, do not eliminate the influx of persons who might want to be covered by on behalf of the state on the international plane. acting persons is, that approach, adescriptive of relies it Instead immunities. official to entitled be should that bearers office of list exhaustive an provide not does law International immunities. disputes. PresidentCharles Taylor of Liberia inthe 2004decision; even though amidst heavy scholarly legal personality” its “international Leone (SCSL)of State’ [...] must either represent that State or officially act on its behalf or both.” for the state. Przetacznik adds that “[t]he basic element of the notion is that ‘an official of foreignduties perform and relations international in state the represent who persons those to immunities immunities; in that, realm international the of Franciszek Przetacznik “Basic principles of international law concerning the protection of the officials of foreign of officials of the protection the law concerning international of principles “Basic Przetacznik Franciszek D.Akande, “International law Immunities and Internationalthe Criminal Court” M. Frulli, “The Question of Charles Taylor’s Immunity: Still in Search of a Balanced Application of Personal Prosecutor Id.,., p.52 The other confusing issue is the classification of the recipients of international law international of recipients the of classification is the issue confusing other The The above statementlimits the definition of state officialsfor the purpose of international organization, or adiplomatic member international an ofadelegation to to mission a international conference)permanent in of a the receivingmember state. diplomatic a officer, consular (a behalf its on officially act to or mission), special a of member diplomatic a or agent diplomatic (a Foreign Affairs) andis authorized by the sending to State in act capacitythe of its representative to act as An official of a foreign isState aperson whoits either, under its law, is invested with legal authority official representative (a head of State, a Head of government, or a Minister of 163 JICJ v. Charles Ghankay TaylorDecision onimmunity from jurisdictionMay Appeal31 2004,inthe no.2 (2004)1118,1126. 30 164 This may be an endless list. Przetacznik states Przetacznik list. Thismay be anendless 162 in its denial of the immunity claims of claims immunity the of denial its in AJIL , no. 98(2004):407, 409 166 The above The 165 CEU eTD Collection 171 of Montenegro. President ofthe immunities the concerned case This federation. within states are here meant entities The Section), Criminal (Third of Cassation Court 170 consideration.) 713-715. In the latter case the fact that the Minister was a member of a special mission was given high warrantscouldbenotandarrest issued for that them. immunity were entitledto onaspecial of mission China forTrade Commerce International and Magistrate’s Court in the United Kingdom, Street Bow in 2004 the cases separate In two been consistent. not also have caselaw through held that Israel’s Defence Minister and the Minister 169 privileged status” at 423 and committing their States in respect of major international obligations, will also be recognized as enjoying such a within the personal werethey neither diplomats since immunities to wereentitled concerned werenothere in international grounds whichlaw it upon could besaid theofficials that procureur de la République and the Head of Nationalin case. Warrant Arrest Wyngaert Van the den Security of state.” of a sovereign status the haveDjibouti, the ICJ notedbecouldnot applied by individuals heldanalogy to who such offices entitieswithin thatdidnot that serving heads headsof andstate, of government, ministers of foreign notaffairsextend “did and Naples) v. Milo Djukanovic immunity thatthe granted under customary international law to of (Tribunal Prosecutor Public It heldinits classification. its narrow to attempted Cassation law.” in customary unsettled appears personae 773;United Kingdom, District Court (Bow Street), 168 167 immunity. to have notentitlement yet aclear does way, in state another the represents sometimes officesometimes bearer,who signs financial thatarebindingdocuments and/or on state, the DRC Public Prosecutor (Tribunal of Naples) (Tribunal Prosecutor Public Forcese, page 137 Re General Shaul Mofaz Id.,., page 137. Also see Fox who argues “It remains to be seen whether other ministers, by reason of representing v. Recently, in regard to Djibouti’s claim that France infringed the immunities of the of immunities the infringed France that claim Djibouti’s to in regard Recently, Belgium Arrest Warrant Case dissent of Van den Wyngaert (ICJ 167 Forcese adds that “[w]hether these officials are also accorded immunity ratione accorded also are officials “[w]hether these addsthat Forcese , Judgment of 12 February 2004, reproduced inICLQ, Vol. 53,2004, pp.771- v. Milo Djukanovic Milo 170 A similar argument wasmadein the dissent byJudge Re Bo Xilai 171 31 168 , , Judgment of 8 November2005, ILR Vol 128,pp. However, the attempts to streamline this streamline to attempts the However, No. 49666,Judgment of 28 December2004. Italy, 169 In the same year, the Italian Court of Court Italian the year, same the In ad hoc ad Judge) cited earlier. cited Judge) CEU eTD Collection (viewing the diplomaticthe oldest of the three thepremise theories mainly for its ‘fictitious extra-territorial’ of in assumptions the host country as an extension of the territory of the Study Association in Washington, D.C., on 11 April 1990, p. 52. protectionof the the officials concerning law of foreign states”, ofinternational paperdelivered principles “Basic at the thirty-firstPrzetacznik annual seeFranciszek convention Also of publishers. the InternationalRoutledge 174 the position. foreign affairs, just as a brutal rebel leaderknown for his or her disregard of international law may be appointed to 173 172 necessity.” functional andof theory “the character) (theory of or representative representation” “sovereign of theory the extraterritoriality”, of “theory the were these immunities; official of notion the underpinned Immunities Officials of Theories and History 3.2 Doctrinal inherentthese conceptual problems is importantin streamlining thelaw of immunities. international scrutiny. subjectto such to arenot offices for appointment criteria anation’s In anycase, plane. on international the a state of behalf on the or act represent to is appointed any who to official may beextended Immunity scope. clear-cut them out.” instrumentalities incarrying or organs,agencies and “wereits two officials the own acts” that “informed courts by of Djibouti actscomplainedthe Government the that by of itsFrance were the Convention on Special Missions 1969.of Itfurther observed that at no stage were the French meaning Vienna of the Convention on DiplomaticRelations of were 1961, nor they covered by A university professor Djibouti known for his or her integrity is just as good for immunity if he becomes a minister of See PeterMalanczuk, Akehurst’s Introduction Modern450 Lawto450 Book International pg (1997) pgs Before the 19 the Before a have not does immunity of protection the of extension the is that reality concrete The v. 172 France at page 5 available on http://www.icj-cij.org/docket/files/136/14570.pdf. 174 th century, three theories the popularity overtime, havevaried of which thepopularity theories three century, However, by the mid 20 mid by However, the 32 th century, there came a consistent rejection of 173 Therefore, the correction of of some of correction the Therefore, CEU eTD Collection a brief discussion of each of the theories and their critiques is useful. exist andbe used” to long ceased “has theory extraterritoriality stated specifically Rapporteur the extraterritoriality, made no review of it, an indication that the theory is no longer noteworthy. longer no is theory the that indication an it, of review no made law. international in contemporary officials state to immunity of thegrant theories underlying only two asbeingthe theory character” “representative theory and 182 181 60th sessionGeneva, 5 May-6 June and 7 July-8 August 2008. UN Doc A/CN.4/601 International Law Commission, by Special Rapporteur Roman AnatolevichKolodkin ILC 180 179 178 177 176 http://www.library.ceu.hu/ (Last visited Oct 29 2009). Responsibility” aDoctoral Thesis submitted to the Central EuropeanUniversity 2007. CEU library. 175 Jurisdiction,” Criminal Foreign from Officials States.” their respective theirbut personalbenefit, ensure to the “effective performance functions”of their “on behalf of forgranted are not for Foreign Affairs Ministers to immunities accorded law, the international Relations, Diplomatic state.) sending the ICJ has Similarly theory. character” “representative pointedatthe state” respective their of behalf “on observed and functional necessity” “theory to the of attested functions” of their performance “effective in respectthe functions performance of to Ministersfor “[...]privileges the immunitiesand isnot tobenefitindividualsensure the butto ofpremised on the remaining two theories. The forth preambular paragraphForeign stated, that the rationale Affairs The Special Rapporteur Preliminary Report on Immunity of State officials from Foreign Criminal Jurisdiction,; Id., p. 22, para 53. DRC preamble. of 4 the para Id., 1961 April of 18 Relations Diplomatic on Convention Vienna Javid Gadirov, “Mapping International Justice: Immunity of State Officials and Individual Criminal Id., Id., page 41. Rapporteur The noted that “the theory of extraterritoriality has long ceased toexist and be used.”It page 40 v. Belgium, the Arrest warrant Case p. 22, para. 53. 175 Thus, during the drafting of the Preamble to the Viennathe Convention Preambleto on Thus, draftingthe the of during 182 and did not ho ahead any further consideration of the theory. Nonetheless, theory. the of consideration further any ahead ho not did and 176 179 “extraterritoriality theory” was omitted and Diplomatic Immunity was Immunity Diplomatic and omitted was theory” “extraterritoriality More recently, the ILC Special Rapporteur on “Immunity of State of diplomatic missions diplomatic of 180 33 also makes mention of “functional necessity” “functional of mention makes also as representingas States 181 178 As for the theory of that “[i]n customary “[i]n that .” 177 The reference to efficient CEU eTD Collection this as in every other case, is a fiction only, for diplomatic envoys are in reality not without, but without, not in reality are envoys diplomatic for only, fiction is a case, other every in as this in theory “extraterritoriality Lauterpacht, to According foreign territories. over jurisdiction also sovereignty, asit does purport not only claimto portion of the soil of another sovereign state, but sovereignists,For thisnotsit approach does definitely comfortable with notion the exclusiveof broke into the embassy would in state asked caseaburglar havejurisdiction Hersch jurisdiction. Lauterpacht which premises. Undoubtedly, in country country as not when that their dealings anddamages theretooccurwithin. daily the theory gave rise to many thorny questions in regards to the exercise of repaying due to a plearepaying dueto of incapable borrowing yet of is he/shedebts capable to a‘ghost’ ambassador or ‘absentee’ Treatise,volume 1, 792 (Lauterpacht, 8 abroad.” was 186 debtor the if as “behave to Ambassador the from debts of 10. 1- 1984) 185 Publishers, Nijhoff Martinus (Berlin: View Prognostic (Routledge publishers, 1995) 44,Reprinted 2000, also 184 183 was abroad.” (ambassador) if debtor the seekingGrotius was to“behave from debts recovery Ambassadors advisingof those as resident ambassadors were tobe deemed as outsidein theterritory which Further, that they resided. resident Keith Hamilton, writes views, In Grotius’ narratives. sweeping most theory’s the law)maintained international as of father the regarded (also such asHugoGrotius, proponents regarded missions in host state. of rather that sending but territory state’s in not receiving the as be deemed countries as an extension should state receiving the of inthesoil physically representatives), although (state its occupants of the territory of the sending state. Early oldest of the three theories. three the of oldest see Keith Hamilton, supra note153, pg 44.In which it iscited thatGrotius was advising those seeking recovery See Keith Hamilton, Richard Langhorne “The practice of diplomacy: its evolution, theory, and administration” Id.,., See H. Lauterpacht International Law Reports (1942)pg 269 Also see Lassa Oppenheim, International Law: A First is the “ theory of extraterritorialitytheory of alibi 183 as it is to explain the belief that suggest a person physically in a It is based on the notion that the diplomatic premises and thereby th ed, 1955. 186 For extrateritoralists 185 See It is nearly impossible to logically connect an logically connect to Itis impossible nearly 34 Gamal Moursi Badr, State Immunity, An Analytical and ” which some scholars regard as perhaps the , itwould likely be the sending state. 184 The theory The CEU eTD Collection Fitzmaurice noted that the “theory of extraterritoriality would not bear close examination” close bear not would extraterritoriality of “theory the that noted Fitzmaurice immunity of diplomats on the theory of extraterritoriality. Javid Gadirov wrote that Sir fiction of extraterritoriality.” literally. be taken not should that metaphor http://www.library.ceu.hu/ (Last visited Oct 29 2009) Responsibility” aDoctoral Thesis submitted to the Central EuropeanUniversity, 2007. See CEU library. 193 remains the territory of the receiving state, and does not constitute territory of the United States.” subject to the jurisdictionof the United States." Appellants contend that it is. ... AUnited States embassy, however, that “Informed as we must be by that192 practice the issue 191 before us is whetherby Allies, the embassy in Tehran is190 "territory ... Treatise,volume 1, 792 (Lauterpacht, 8 187 within the territorial jurisdiction of the United States.” not are embassies “United States that and States” United the of territory constitute not does and Republic ofIran held that the “United States embassy remains the territory of the receiving state, Republic inLondon. Lastly in the United States, the Court of Appeal in McKell v. Islamic in UnitedArab the premises of of recognition consulate’s Talaqthe the conducted divorce premises of the Consulatev. Radwan General were withinlaw worldtoday.” sound anywhereinthe or outside the British as appear be accepted to not does fiction which “artificial legal an and modern-day acceptance” Isles for the purposenotfoundhasany law which ofinternational as“anolder doctrine rejected was extraterritoriality of state” receiving the of within territories the 189 188 Javid Gadirov, “Mapping International Justice: Immunity of State Officials and Individual Criminal McKeel Radwan AL ET Tietz See H. Lauterpacht International Law Reports (1942)pg 269 Also see Lassa Oppenheim, International Law: A BadrSupra note 154 Id., pg 269. Thus in drafting thepreamble Vienna of the Convention, ILC the also justify declined to Thus, in 1953, in the case of Tietz et al. v. People’s Republic of Bulgaria, the theory of theory the Republic Bulgaria, of in etal.v.in People’s Thus, 1953, caseof Tietz the v. v. 191 Radwan (1),(1973)Fam. 24; [1972]3 W.L.R 735; [1972] 3All E.R967. Islamic Republic of (1983) Iran, US Court of Appeal NinthCircuit 722F.2d 582.The Courts stated to reject this theory during a hearing which sought clarification as to whether the whether to as clarification sought which hearing a during theory this reject to v. PeopleRepublicBulgaria, 28 ILR of Supreme369 at379, RestitutionCourt for establishedBerlin 189 th ed, 1955. 190 The followed British Courts suitinin Radwan 1973 188 187 35 Consequently, the theory was also called “the Badr opines that extraterritoriality was only a 192 193 ; so CEU eTD Collection on behalf of the state, it offers no theoretical explanation or justification for the protection of protection the for justification or explanation theoretical no offers it state, the of behalf on by supported functional necessity considerations. be to had but alone stood not has it wonder No flaws. without nonetheless is theory the may, respect to the territorial integrity and sovereignty of independent ensuring doing so in and states.state another of affairs in the otherwise or judicially interference states’ law. that the infringes state of another representatives the over state by one act a coercive of exercise the that is maintained, itin which “ is in is maxim, the This consent granted. encapsulated unless states, sovereign of other adjudicate conduct the to lack competence the deemed to sovereign.” equal an personifies] [or represents representative] [official because “theenvoy representatives aregranted state to immunities 199 198 197 personification, from notion of the stem representatives immunities tostate viewthat the propounds character Schooner Exchange court observed that “Anequal [sovereign] has authorityno overan equal in public international law”.Also See 196 195 194 end ofits in relevance legal discourses. jurisdiction. criminal foreign from officials State of immunity on duringAnatolevich did Kolodkin,report SpecialRapporteur), the May 2008 the (ILC See Yitiha Simbeye Immunity and International Criminal Law Yitiha Simbeye pg 95 The notion that state representatives personifies the state. the personifies representatives state that notion The Cited earlierUN Doc A/CN.4/601 page 41. See Id.,., See 198 supra Craige Forcese – De-imunizing Torture, page 133, Akande, loc.cit., fn pg 1 407 e.g Schreiber e.g Forcese and Akande have argued separately that the essence of the theory is to forbid is essence theory the of that to the separately have and Forcese Akande argued First, while this theory could justify the lawful public acts of a state representative taken representative ofastate acts public lawful the justify could theory while this First, The second theory, the The second theory, represented 195 v. v. and that of, sovereign equality among states. Mc Faddon cited earlier”. cited McFaddon Canada, 2002 SCC 62, [2002] 3 S.C.R at para 13, 216 D.L.R (4 state should enjoy from the jurisdiction of other states in international in states other of jurisdiction the from enjoy should state indirectly the “sovereignty equality andof states” thereby immunity the “theory of sovereignrepresentation,” 197 36 Thus as equals, sovereign states generally are generally states sovereign Thusequals, as par inparemnonhabetiurisdictionem 194 196 The former probably marks the marks probably former The In the words of Simbeye, the th ) 513, in which the supreme 199 Convincingly itas orrepresentative ” CEU eTD Collection as representing States short-termed political appointees) so much that their incarceration for grave crimes must for crimes grave incarceration much their that so appointees) political short-termed state’s function should whya itis First, unclear numerous. arealso necessity theory functional defects to the theory, be so strongly attached his her function of or [...]” or in performance the to one or two individuals, “official hinderhim immunity statewhich anyactof protects another of authority against would (more that Affairs, over Foreign of a Minister to respect with theICJstated judgment, warrant Arrest the who are benefitindividuals but to 203 1961 Relations onDiplomatic Convention Vienna the of The preamble theory. character representative Privileges andImmunities were premised upon theirfunctional needs asmuch as the official toenable the to necessary they that are lies fact plain inthe of a state representatives to immunities perform state functions. As earlier discussed, both the Diplomatic and Consular Convention, see the 5 seethe Convention, 202 201 p. 95. 200 having recourse. state other criminals have often ‘held the state hostage’ and used it asa shield from prosecution, without the very is ofthis gap, war a Because waiver. there save jurisdiction,where placinghim/her above hence as state level the same the at representatives place state to purports theory the Third, acts should enjoyduring his/hertermof it Second, also offersnoexplanationoffice. illegalitieswhy and ultravires immunity, before, or both capacity, inhis/herprivate by representative actstaken the ifunlawful private such acts are forbidden under the domestic law of the state. Supra, DRC v. Belgium cited earlier para 54 The The Vienna ConventiononConsular Relations contain analmost identical language as the Diplomatic Id., pg 95 Done at Vienna on 18 April 1961. Entered into force on24 April 1964. United Nations, Treaty Series, vol. 500, 200 The third theory isThe third theory providesthat th Preambular Para at http://untreaty.un.org/ilc/texts (Last visited Nov 2009) ;” “[r] 201 ensure theefficient performancethe of of functions diplomatic so did the Vienna Convention on Consular Relations. ealizing purpose that the of such privileges immunities isnotand to “functional “functional necessity” 37 203 . According to this theory, the basis of basis the theory, this to According . Just as with the representative character as with Justrepresentative the 202 Similarly, in Similarly, missions CEU eTD Collection http://www.benferencz.org/index.php?id=4&article=51 (Last visited Oct 29, 2009) 206 This may be evidence of transgression.the http://www.benferencz.org/index.php?id=4&article=51. (Visit Oct 2009) said hasprobable come. compelling Thus newerand sounder forreasons clothing state leadership from prosecution. 205 204 note, other the On representatives. state clothing for rationale sounder and newer a compelling wrote that it was "time diminishingsovereignty in era. relevanceof post-modern the to bringthe given, sovereigntyespecially comity, international of notion the of a re-embodiment or theory emerging down to earth.” necessity” theory, or of States.”any of the three theories todiscussed the need given be earlier. should for priority “due State Jurisdiction, Criminal Foreign from It Immunities may Official officials on works in fact, ILC likely the towhile that enjoycautioned Assembly General beNations an United the such ILC, the of programme immunity, for the sakeat the Sixth Committeeof of the Generalstable Assembly on new topics to be included relations in the long-term loosing all the threeamong traditional theoretical rationales for sounder ones. In 2007, at the discussion from leaders accountability. political cloth to devise’ political ‘suspect viewed as being areincreasingly theories the reason, refusal and orfailure to remove, prosecute and replace leaders accused of serious crimes. For this persistent states explain not do theories, other the with as This forbidden. it have to as function a state is on aeffect takenhavingsodevastating states foreign before as of accusations grave statefunction same yet the worry irreparable doneonaccountand to disruption if cause to about explain whyimpeachmentremove could suffice to high officialsfrom ranking without office, not does also theory necessity functional of application Thestrict exist. tasks samestate the individuals capableof performing competent in of other millions paralyze thestate entire which Benjamin B. Freencz International Law As We Enter the Century 21 the AsWeEnter Law International B. Freencz Benjamin have to quoted is School, Law of Columbia Henkin Louis Prof. as earth” to down Sovereignty bring to “Time (A/CN.4/577, para. 126) http://untreaty.un.org/ilc/sessions/59/59docs.htm (Last visited Oct 29 2009). So much are the criticisms that the entire doctrine of immunity seems at the brink of 204 This reference “stableto relations among States” does not sound typical “functionalof 38 206 205 That time has probably come, probably has time That Professor Louis Henkin once CEU eTD Collection 212 1983) p.14. See Badrciting Vattel.pg 11 immunities. of ground on unsuccessful were they and 211 title reclaim to sought M’Fadden owners rightful Several years later it stopped on itsway forrepair in Philadelphia“Balou”. apparently Vessel under War stress ofFrance a weather into andthe turned was ofboat The name Partners. and M’Fadden US citizen to a belonging 210 France. by the seas onhigh seized ship their of the recovery for 209 courts, there came the adoption of statutes qualifying official immunity in commercial in immunity official qualifying statutes of adoption the came there courts, law have] to presumed the submitted to of country.” the was thus [he/she a merchant, became and from throne the “if descend[ed] a sovereign words immunity.enjoy not would merchants officials as from acting state those which immuneand activities thatwere between those neutral ofdemandedthe rules drawn aline trade as in However,former increasinggradually role States. the took commerce, of jurisdiction other immunityabsolute meant total and unqualifiedstateimmunity and to its senior officials from the 208 79, 34, E.C.H.R. 273 [ Al- Adsani comity and good relations betweenstates through the ofrespect one other’s sovereignty.Supra E.C.H.R [2001]XI, immunity to a state in civil proceedings pursues the legitimate aim of complying with international law to promote 207 Exchange v.M’Fadden and others At its inception, earlier Trends 3.3 TheEvolvingInternationalJurisprudential decisions such as the widely citedimmunity as merely signs of good gesture, friendliness and reciprocity and nor a right. 1821 US its ICLhas butthe legal jurisdictions rejected efficacy case of The Schooner European in some and immunity American for hasbeen a common premise comity international Id., Gamal Moursi Badr “State Immunity” An Analytical And Prognostic View (Berlin: Martinus Nijhoff Publishers Exchange” Schooner “The called boat private ofa navy of France by units capture forceful the concerns case The TheSchooner Exchange v.M’Fadden andothers 11 U.S.116 (1812). 302 plaintiffThe were denied a hearing See Controller & Auditor General BeforeECHR, Al –Adsanithe in Like any aspect of international law, the rule on official immunities has not been static. been not has immunities official on rule the law, international of aspect any Like v. United Kingdom] v. v. Davison, [1996]2 N.Z.L.R. 278. UnitedThe Kingdom 2001,itobserved was“ the grant of that sovereign 209 tooktheimmunity. standpoint absolute of 39 207 212 since the notion by contrast regard bycontrast notion since the Thusfrom work the municipalof 210 The notion of 211 208 In Vattel’s CEU eTD Collection April 2000, Belgium in so doing violated the immunities of the then Minister for Foreign Affairs of the Congo” of the Affairs Foreign for Minister then of the immunities the violated doing so in Belgium 2000, April 215 United Nations”, as well as “the diplomatic immunity of the Ministerfor Foreign Affairs of equalitya sovereign of sovereign State. “principle the State”, another of territory the on authority its exercise not may amongState a that “principle all Membersoffice of the Democratic Republicof of the Congo, Mr. Abdulayethe Yerodia. ContendingUnited that Belgium isviolating the arrest warrant issued11 April onby 2000 a Belgian investigating judge against Ministerthe forForeign Affairs in Nations, as laid214 down I.C.J.in Rep. 3 I.L.M. Article 536 [Congo v. Belgium cited to I.C.J. Rep.]. http://www.icj-cij.org/docket/files2, paragraph (Oct 2009)213 1, of the Charter of the of April Warrant2000 11 Arrest the concerned in that acase immunity 3.3.1 From the Arrest Warrant (Yerodia), toCharles Taylor, to Al Bashir. decade. one last in the down handed decisions prominent three the than evolution the illustrate better can Nothing abuse. rights human gross and crimes international involve that cases in immunity qualified towards movement the of drivers major the been have jurisdiction from immune were otherwise who officials trial to bring to effort their principally and tribunals criminal immunity. of notion the roll-back on first marked This the approach. restrictive of the birth the transactions—thus Affairs,—equating the that function to that of a Head of State —to hold that: immunities, law international becoming Minister of Foreign Affairs. before committed allegedly humanity against crimes and crimes war interalia for Yerodia, Abdulaye Mr. Minister, Foreign (DRC) Congo’s then of arrest the for Judge investigating Para 46 “...assuming that it had jurisdiction under international law to issue and circulate the arrest warrant of 11 warrant arrest the circulate and toissue law international under jurisdiction had it that “...assuming 46 Para “international an concerning of adispute respect in Belgium against proceedings instituted Congo) (the DRC The Caseconcerning Arrestthe Warrant of 11 April 2000 (Democratic Republic of Congo the v. Belgium), [2002] In awakethe February of ICJhadfirst2002, the its opportunity deal to with official international of rise the arena, law criminal international and rights human the In relations with all other States, occupies aposition such that, like the Headof State or the [...] a Minister for Foreign Affairs, responsible for the conduct of his orher State’s 215 the Court narrowed on the function of the Minister of Foreign 214 In finding the measure by Belgian Court in violation of 40 213 issued by a Belgium CEU eTD Collection 223 notwithstanding the fact that Mr. Yerodia has ceased to be Ministerfor Foreign Affairs. 220 219 bearers had a firm establishment in international. 218 222 221 during committed acts and Affairs Foreign the for period of office.” Minister as office assumed concerned person the before performed acts between matter, that for or, capacity “private a in performed been have to claimed those and capacity, “official” 217 216 Yerodia for enjoyed impunity alleged the crimes. was circulated.” warrant that own choosing, cancel warrant arrestof the 11 April 2000 and soinform whom authoritiesto the by ten votes to six, the court directed that “[...]the Kingdom of Belgium must, by means of its of grave crimeshadchanged. in cases immunity rule the that persuaded by of wasnot argument the Affairs, Court Foreign the she when enjoysabroad full immunity from criminal jurisdiction and inviolability.” And that, “th[ese] functions [...] are such that, throughout the duration of his or her office, he or circulate the arrest warrant of arrest the 11 April 2000[...]” circulate official immunity,“[...]assumingit that hadjurisdiction lawunder international issue to and law. international under officials state to accorded immunities humanity overrode crimes against crimes or war suggestion that juris a opinion practice or state during time spent in office. spent time during or before committed acts between make to adistinction was there that argument Belgium’s Id Id., Id., Para 57 Id., para 55 Id. DRC Congo The Arrest WarrantCase Id ., ., , Arrest Warrant Case paras 57 -62 Para 53 para 55 states “[N]o distinction can be drawn between acts performed by a Minister for Foreign Affairs in an para 76 A The ICJ nonetheless emphasized that its conclusion was not a suggestion that Mr. Relying on the aforesaid functions and the representative character of a Minister of v. Belgium Para 53 the State solely by virtue of his or her office. her or his of virtue by solely State the Head of Government, heor sheis recognized under international law as representative of rrest Warrant case Warrant rrest , , para 51, the ICJ stated that the notionof official immunity and the inviolability of its 220 222 218 Thus concluded byfinding Belgium in violation of Mr.Yerodia’s The ICJ went on to state “The warrant is still extant, and remains unlawful, Inthis regard,itstated that it was unable find to in anywhere 41 223 221 It went on to listfour scenarios in which Mr. In regard to the warrant already circulated, warrant tothe regard In 216 219 The ICJ also declined to accept to declined The ICJalso 217 CEU eTD Collection decision, immunitydecision, should not apply. international‘certain courts with jurisdiction’ head he state. of was still while was commenced SCSL the before proceedings criminal his thought even Ghankay Taylor Charles ex-president immunitySpecial Liberian Courtof Leone’s (SCSL),unanimously the cloakSierra to of denied (Last visited Oct 27 2009). (ICC-02/05-01/09),Bashir Pre-TrialChamber 4 March1, 2009http://www.icc-cpi.int/iccdocs/doc/doc639078.pdf 231 230 229 Immunities, Related Problems, And Article 98 of the Rome Statute, (Criminal law Forum, 2002)430 228 international court having jurisdiction.” 92 disagree with incumbent Heads the ofState and InternationaltheCriminal Court,” Journal of Security Conflict and Law 14 (2009)71- parallel drawnwas not aparty. SarahWilliam and Lena Sherifby “Thein Arrest Warrant forthePresident al-Bashir: ImmunitiesICJ of between227 ICC, ICTY and the226 ICTR whenMay 2004. mentioning those “certain225 Liberia. over state another of authority judicial of exercise the coercive powers of another state as for its Warrant of Arrest and judicial action to tantamountpar in non habetparem iurisdictionem, to 224 Chamber Iwhen issuing anArrestforWarrant presidentBashir 4Marchthe on 2009. issue a fresh warrant since Taylor at the time of the decision had ceased to hold office. held it immunity otherwise Taylor’s (upheld claim), would tore- nonethelessproceeded have Chapter 3.3.1. jurisdiction,” with international “certain courts before trial including,be a tried, Yerodia could Decision on the Prosecution’s Id., Note 179 Prosecutor Application for a Warrant of ArrestMeaning “no state may exercise jurisdictionAgainstover other states without its consent” Also see OmarSteffenWirth Hassan Ahmad Al Bashir, Al astate as Liberia which to SCSL ofthe nature based treaty the given controversial, very been has however, This Prosecutor Id Id.,. ., , see Para 42 “We come to the conclusion that the Special Court [SCSL] is an international criminal court” criminal aninternational is [SCSL] Court Special the that conclusion the to “We come 42 Para , see A Judgment consistent with that of the SCSL was followed by the ICC Pre-Trial years in on relying the Two later, part v. v. 224 Charles Ghankay Taylorpara., 42. Charles Ghankay TaylorCase No. SCLSL-2002-01-1DecisiononImmunity From Jurisdiction, 31 specifically mentioning the ICTY, ICTR and the ICC.For adetail discussion see 227 Premising official immunity squarely on the doctrine of doctrine the on squarely immunity official Premising 228 the SCSL contended that it was not exercising the exercising not was it that contended SCSL the 226 obita dictum 42 to which in the light of the ICJ Arrest Warrant Arrest ICJ the of light the in which to 225 The SCSL categorized itself among the referredabove, 31 May2004,the on 229 It went on reiterate that had it had that reiterate on went It 231 230 ThePre- CEU eTD Collection http://www.ejiltalk.org/is-sudanese-president-bashir-immune-from-arrest/ (Last visited Oct, 2009). 236 either obligations or rights fora third State without its consent.” 235 234 responsibility criminal underfrom this person Statute,a nor exempt shall case in no it,shall in and of official itself, constitutea government or a ground for representative reductionelected an of sentence.parliament, onofficial capacity. Inparticular, official capacity as a Head of State orGovernment, a memberof a Government or 233 232 inapplicable circumstance; the I will argue this 4.3.1 in Chapter view, I would consider calling partof on dereliction’ the Court. a ‘negligentthe it commentators that thestates. silence non-consenting on regimes treaty of imposition the meantforbids that principle treaty the in delve that the Pre-Chambernot also did It parties. non state of tonationals accords statute Rome the which exemption the did not find Article with the Rome98 Statute—to which Article 27 would apply to Al Bashir. a party),Sudan is referral, in pursuant tothe not that bewould (regardless conducted accordance case.” present the [of a country] which is not a party to the Statute, has no effect on the Court’s jurisdiction over Trial Chamber held that in it’s opinion “the current position of Omar Al Bashir ashead of a state whole. statutory frameworksituation, asprovided well as any said into the investigation the that accepted hadalso theCouncil that meant United Nations prosecution for in arisingthe Statute, there article by inCouncil of tothe situationthe ICC,pursuantto 13(b), theDarfur Security the from, will the take Elementsplace thein Statute in order to achieveaccordance this core goal. In the view of the Pre-Trial Chamber, the referral of of withCrimes the immunity impunity derogates and observed thatArticle 27, which expressly and the Rules as a Dapo “IsSudaneseAkande, PresidentImmune Bashir from Arrest?” EJIL Analysis July 11 2009.Available at Id., ICC AL Bashir Arrest warrant Decision para 45 See Id., This rule was codified inthe Convention on the Law of Treaties of 1969, which states that treaties do not “create para 41 Article 27 (1) provides that “(1) This Statute shall apply equally to all persons without any distinctionbased 235 234 The Pre-Trial Chamber however made nomentioned of applicationthe of Article 98 and This as we shall see in Chapter IV became an issue of heated debate with some debatewith heated became IV anissueof see This inChapter asweshall In essence, implying that the UN Security council had accepted that all implying UNSecurity In hadcouncil essence, thatthe acceptedthat prosecutions 232 Itwent on to state that one of the core goals of the Statute isput to an end to 43 236 233 However, in my However, was included in CEU eTD Collection may thus be tried by those countries’ courts in accordance with the relevant rules of domestic law.” ofdomestic rules relevant the with inaccordance courts countries’ bythose betried thus may 241 officials] enjoy impunity in respect of the crime s they might have committed.” the waive could official accused the of nationality of state represented the is that The second countries. home in their be tried could they therefore, and, countries, own in their prosecution equated withequated impunity. 240 responsibility.” criminal al1 from itapplies whom to person the exonerate cannot it offences; certain Remarks, 237 commit.” findingnot asuggestion was state that officials “enjoys in impunity of crimesrespect they [...] war criminal was a major setback in the fight against impunity.According to the ICJ however,its Prong Exceptions. 3.3.2 DoesImmunity notEqual Impunity? Evaluating ICJ’s Arrest Warrant 4 immunity—much as are still left with the aforementioned dilemma. pavinginternational wayfor exercise to judicialtribunals withoutrole the inherences of jurisprudence international Alla steady of threecases,reveal inaccumulation by all these states. arrestwarrants international execution andthe jurisdiction of lies however, back,with universal progress has notbeen hindered on the part of international criminal courts or tribunals. The draw that renewed testament both Al Bashir,) andICCOmar SCSLTaylor is, the (that followed, 239 238 barprocedural Id., Para 61 “First, such persons enjoy no criminal immunity under international law in their own countries, and See Jan Wouters “The Judgement of the International Court of Justice in the Arrest Warrant Case: Some Critical Some Case: Warrant Arrest the in of Justice Court International of the Judgement “The Wouters SeeJan Id., 61 and 60 para Case Warrant Arrest The Arrest Warrant Case para 67 the ICJ stated that “Jurisdictional immunity may well bar prosecution for a certain period or for The first is that such state officials are not under international law immune from criminal from immune law international under not are officials state such is that first The Although the ICJ ArrestAlthough Warrant widely criticized, decision ICJ the was For many For upholdingthe commentators, immunity of Abdoulayefor Yerodia, asuspected Leiden Journal of International Law 238 Intheview,immunity soughtcourt’s uphold the court to the wasonlya temporary 239 that did not absolve the officials of their crimes and that, thus, should not be not should thus, that, and crimes their of officials the absolve not did that para 60. para 240 It went It on fourto present situations/cases its toargue position. The court noted that “immunity from jurisdiction ... does not mean that [ state 16no.2 (2003) 253-267 44 237 the two cases that two the 241 CEU eTD Collection 246 247 outstanding arrest warrant,see para . conclusion and on its decisionon admissibility but departed onthe question of ordering Belgium to cancel the 245 244 longer enjoy all of the immunities accorded by international law in other States. 243 immunity.” that waive to decides represented orhave represent power.” immunity will be waived by his be tried inhis own own country in withaccordance rules relevantthe of domestic laworthathis State “is not high as long as there has been no change of 242 circumstances.” such of Court the by given examples about sanguine than less “[they][felt] that noted but conclusion, Opinion of Judges Higgins, and Koolijmans, Buergenthal with concurred majority’sthe Separate theJointOn latter, the by court. the presented options of redress the feasibility the fours scenarios outlined above. However, within the court, itself there were already responsibility,doubts about the of absolve notimmunity criminal does isargument that perpetrators procedural and only court’s understanding meaning impunity immunity of claim and inimpunity. the that beyondresults case, thethis In of impunity has to closelyitself both asthe denied examine baseto Perhapsthe court wasakey error be this the construed in the context“impunity”, eventhough an was madeargument against equating immunity impunity.with of the jurisdiction and, in this regard, the ICC, the ICTY, and the ICTR were mentioned. have official international that situation, ‘certain betriedcould before anincumbent courts’ immunity. international to entitled be longer no also would she or he office, hold immunity of the official so that a trial could proceed. Id., Id., Id. Id., Id., Id., , Para 60 and 61 Joint Separate Opinion of Judges Higgins,Koolijmans Buergenthaland para 78 These agreed with courts the Para 61 Thirdly, after a person ceases to hold the office of Minister for Foreign Affairs, he or she will no para However, the ICJ’s majority’s opinion did not explain what they understand by the term the by understand they what explain not did opinion majority’s ICJ’s the However, 247 61 With regard to the possibility of trial before “certain international courts,” the Joint the courts,” international “certain before trial of possibility the to regard With “Secondly, they will cease to enjoy immunity from foreignjurisdiction if the State which they 246 To these judges, the probability that a Minister for Affairswill Foreign a Minister that Tothese probability judges,the 45 242 The third is that, if an official ceases to ceases official if an that, is third The 244 243 In the last Inthe 245 CEU eTD Collection justice...” particularly in theperpetrators, areaof appropriatemeasuresthe inrespectof [and to]take impunity from “[the]resulting failureby to meetStates their obligations toinvestigate violations; for the Protection and Promotion of Human Rights Through Action to Combat Impunity views systems.” judicial incompetent E/CN.4/2005/102/Add.1 (2005). Set of Principles for the Protection and Promotionof Human Rights Through Action to Combat Impunity’ , Independent Expert to Update the Set of Principles to CombatImpunity, Diane Orentlicher: Addendum: Updated 254 253 http://www.derechos.org/wi/1/1.html 252 251 250 249 248 goinvestigate crimes leave unpunished.” orprosecute crimes the to to domestically, will “[...]the core of the problem of impunity, [is that] national authorities that are notwilling or able leads immunity to “[i]n [...] that practice, synonymous impunity not concepts should andnotare be the two therefore conflated,” majority’s opinion, said from much infuture international courts criminal this respect.” thattoo expect to risky “also is it that and ‘rare’ is occurrence an such “[i]n that view the of was Opinion theory, the Court may [have been] right: immunity and “[...]can be either “[...]can violations orcondoned, committed, by agents of state.” the rights human for accountability of lack “the as Derechos by defined has context, rights human understanding ofimpunity is very not from different mainstreamother views. Impunity in the holdsinhappened this caseof as precisely what the Mr. Yerodia. Economic and Social Council, ‘Promotion and Protection of Human Rights: Impunity: Report of the Id.,supra note 202 Derechos Human Rights, “What is Impunity?” Available at Without Impunity, June 1998 V.I No.1 Id., Id., Id., Dissenting opinionof Judge ad hoc Van denWyngaert, page 160 Justice Van den Wyngaert (ICJ ad hoc Judge), who wrote vehemently in dissent from the from in dissent vehemently wrote who Judge), hoc ad (ICJ Wyngaert den Van Justice 254 de jure de or de facto 253 Likewise, Principle 1 of the United Nations’ Set of Principles , legitimized or by bylaws enshrinedamnesty or corrupted de facto 46 impunity.” 252 249 Derechos adds impunity that To Judge Van To Wyngaert, den 251 JudgeWyngaert’s 250 248 She but CEU eTD Collection procedure should be used as handmaidens of justice but to not defeatit.” 258 electionsee http://www.nytimes.com/2010/04/27/world/africa/27sudan.html (last visited June 2010). so Roberthas Mugabe of Zimbabwe andPresident Yoweri Museveni of Uganda. For details onSudan’s 2010 257 II), p. 143, para. 7 ‘defeats justice.’ ‘defeats be a‘ be said to cannot rules the cases, other denied maxim the context, the criminal In kindredress. of any years for more he wins two more consecutive terms, victims of the Darfur atrocities will have to wait for 15 256 255 happening. Inthe countries and hencecould stand the trial ignores therein practicality problematic of such a year term. five- another for decades,re-elected wasrecently two over in has for been who power Bashir, example, For theirindividual freeto the electorate. as Al president,Omar Sudan’s will opposed relinquishes official the until wait to have office,victims if the addition, In light. to be brought forcannot officials some heads of state, the and punish prosecute, allegedviolations. the choice to vacate office or duty contained ininternational human normativerights framework toeffectively investigate, not is dependent on dependent political on determinations. not andtimely judicial imply aspeedy,remedy adequate redressinthesecases Effective redressed. effectively are officials state high-ranking by committed violations immunity, of regime necessitates whether equalimpunity immunity examination the under does of whether, the President AlBashir came to powerthroughMilitary a Coup 21 years ago and has beenin powersince then and See Communication No. 821/1998, Id, see the definition of effective remedy, page 5. See the dictum of B.Odoki,CJ in Presidential Election PetitionNo. 1/2001 pg 10 para 3 that. “Rules of very much applies. Whether the rules of immunity are procedural or not, in this case and These views both place emphasis on effective judicial redress. Thus, a determination of a determination Thus, redress. judicial effective on emphasis place both views These Secondly, tosuggest that such officials do not enjoy international immunity in their own 257 At the same time, he is wanted by the ICC for genocide and other graves crimes. If 258 Arrest Warrant case Warrant Arrest I therefore find it difficult agree to with the ICJ argument on all fronts. Chongwe Zambia v. itself, of proponents possibility this need toexplain why 255 The need for redress is consistent with the positive the with is consistent redress for need The 256 47 If immunity barsmust investigation, abuses by handmaidens of justice’ handmaidens of adopted on 25 October 2000, in 2000, October 25 on adopted justice delayedis ; to the contrary they contrary the ; to GAOR , A/56/40, (vol. CEU eTD Collection criminal proceedings. criminal office. took abar legalincludes commenced continuation that the beforeof president against the proceedings 263 262 Press. University Cambridge Reiger, place. first inthe jurisdiction universal of establishment is powerful of murderous, to prosecute the leaders reason military states fortheir the and political justice. ahead of considerations political place measures that other before their own the domestic courts. even officials of prosecution barthe top lawsthat immunity havein placenational some states 261 before. from 260 acts personal his/her also but office, in while criminal proceedings against the presidentduring his term in office.This just doesonly not protection president the 259 Whengranted himinternational immunity. the countryredress abroad, was sought he where a position that to was elevated Instead, suspect the minister. hebecame a government before long have committed to heisalleged crimes for trial stood Yerodia ensure that to law regime example. The Democratic Republic of the Congo refused and/or neglected to employ its criminal is aclear TheYerodiacase provide redressdomestically. adequate inability to or unwillingness victims want this kind of resolution,instead but that domestic courts have refused orhave shown is that not often is abroad why redress reason sought the logic.case, In any defies penalties leaders wouldimprisonmentshortcomings adjudicatetheirandcondemn orother to themselves those that assumption the scenarios, such In abusers. their of hands in the victims for redress officials to the country where they enjoy overwhelming power and control is,in essence, to leave immunity the Congo did not in the first place use its domestic laws to try Mr. Yerodia, since international Victims seek redress abroad often not because they like it but rather because nationally they cannot get one get cannot they nationally because but rather it like they because not often abroad redress seek Victims Forstatistics and other detailed analysis Id., Article 248 of Pakistan the Constitution1993. Also see Section308 of the Constitution of Nigeria, 1999. See, Pakistan, InPakistan, the Constitution, inArticles 248(2) and (3) bars any initiationor continuationof any Id.,., does not does 260 With such a provision, warcriminals power could seizestate simply defeat to cover him domestically. The ICJ suggestion also fails to acknowledge fails Thehim that suggestion ICJ to domestically. cover also 261 In addition, many states have putin place amnesty laws, and embraced see 259 “Prosecuting Heads of State” (2009) Edited by EllenL. Lutz , Caitlin In Pakistan, this prohibition of suits against the president 48 263 Thus,remit to prosecutionthe of such 262 Admittedly, the reluctance the Admittedly, . CEU eTD Collection 270 269 http://news.bbc.co.uk/onthisday/hi/dates/stories/december/25(Oct 2009). bydeath squada firing in 1998 after asecret military tribunal found them bothguilty of crimes against statethe 268 Divisionupdated April 2003, also 267 Law, 19(2006), international humanitarian law, humanitarian international of breaches indictedinteralia, grave by Ahmad was Mr. ICCfor, Harun, the Affairs, Internal 266 265 264 wrongs. own their adjudicate not will that regimes are there that notion Browne-Wilkinson’s supports clearly case This regime. legal internal its in existing gaps impunity the fill to offered who those suing wielded political powerdid notwaive hisimmunity,instead inbut stood way the justiceof by with regard to Taylor’s immunity. Taylor’s to regard with Iraq with case wasthe invasion, as “unfortunate” some through perhaps change, regime a is there when occurs fortune of kind first The In most cases,any hasstate from practices such waiver butfrom not resulted consistent fortune. post of Minister in Charge of Humanitarian Affairs. immunity. his of retention for the torally state Liberian the still got Taylor Charles seemed” change former regime. the of brutality to unsympathetic are who leaders new in brings that change fundamental a instead but guard, the of merely achange be not to has change regime the that cases indicate past See earlier. cited Immunity, onTaylor’s Decision Leone of Sierra Court Special Seethe to sentenced and tried were wife Elena his and Ceausescu Nicolae president Romanian deposed the example, For Law ,American Iraq, Against Force of Use Pre-emptive the and Law “International M. Ackerman, David ROBERT CRYER ROBERT ICC Situation and Cases at http://www.icc-cpi.int/menus/icc/situations and cases/(Last visited Oct 2009) Regina Case No SCSL-2003-1-AR72 decision of May 31 2004. Pg 6-7 The third suggestion made by the ICJ was in relation to the state’s waiver of immunity. waiver thestate’s of inrelation to made ICJwas suggestion bythe The third v. 269 Exparte Pinochet Supra Lord Brown-Wilkinson Lord Supra Pinochet Exparte In fact, Liberia filed a separate pleading before the Special Court of Leone of Sierra Special Court the before pleading aseparate filed Liberia Infact, 264 268 The other exampleis The situationin Minister other WhenSudanese the Sudan. of In the case of Liberia, even when there was what a “fundamental regime “ Sudan, Resolution 1593, and International Criminal Justice see Prosecuting Heads of State 2009 supra. 2009 State of Heads Prosecuting 265 Sudanrespondedindicted ministerthe bypromoting the to 270 There was a similar occurrence in Pinochet trial in Pinochet occurrence asimilar Therewas 49 267 266 or Panama. Furthermore, the experiences in experiences the Panama. Furthermore, or ” Leiden Journal of International CEU eTD Collection but no police force, the no trial would take place. Secondly, the challenges involved in involvedSecondly, taking place. challenges notrial butnopolice the force, the take would jurisdiction have which courts,” international “certain those to states other of officials ranking asblockingfrom is immunity andstates interpreted sovereign surrenderof arrest the high- if it that is suggestion in this flaw first The force police no but jurisdiction have that courts” man. free million Euros. The alternative would be that Habré would be allowed to walk out of Senegal from of 27 donors a payment on Habre’s trial Senegal then conditioning that was a Watch reported in buttrial fact has into thetrial turned amoney-making enterprise. decades, since forforward nearly 1990. two going been have trial stand may he that so him apprehend to efforts but known, well is Senegal also waived, and,like Mengistu,he was tried andsentenced todeath in absentia. His locationin international donors do not provide €27 million in trial costs toSenegal.” (Last visited if Nov 2009) Senegal leave to Habré allow to threatened has Wade Abdoulaye President “Senegalese Watch Rights Human 276 Mariezcurrena,and eds., supra n. 13,p. 278 at p. 296. 275 AppealCases Amnesty International 274 visited Nov 20 2009) 273 272 271 Zimbabwehand would not him for trial.over death,to and, subsequently, lifein imprisonment to absentia government becausethe of Milosevic caseEthiopiaof Yugoslavia. In the hisimmunity,sentenced of Mengistu, him waived of HaileMengistu Mariam of HusseinEthiopia, Habre someand, of Chad, to Slobodan extent, frustrated by the non cooperation of third states. state. of a head longer no was Pinochet though even proceedings See http://www.hrw.org/en/news/2009/02/20/belgium-asks-world-court-act-former-chad-dictator According R. Brody, ‘The Prosecution of Hissene Habré: International Accountability, National Impunity’, in Roht-Ariaza Victims, Habre’s of Voices CHAD: Trail” to Brought is Habre Hissene Die Before to Want See“WeDon’t See Amnesty International Report 2009 available at http://thereport.amnesty.org/en/regions/africa/ethiopia JointSeparate (Last Opinionof Judges Higgins, Koolijmans and Buergenthal earlier. cited Trial SeePinochet The ICJ’s fourth scenario is the trial of a head of state before “certain international before “certain of state is a head trial of the scenario The ICJ’sfourth 276 AI index: AFR 20/009/2006 August 2006. 274 273 50 His host, Senegal, has not only delayed Habre’s delayed only not has Senegal, host, His The immunity The immunity of 272 This non cooperation happenedin thecases cooperation non This Hissène Habré Hissène 275 271 In 2009, Human Human In Rights 2009, A waiver may also be also may Awaiver of of Chad was CEU eTD Collection surrender willvoluntarily not headsof state when indicted police will do forces not tobut have jurisdiction stand trial that courts” international “certain isclear what immediately It not itbarssince prosecutions. and when atrocities,states since it bars investigations, but also tothe punishment of gross human rights violations continue their justice. of attainment lack of cooperation.sentences.their serving from them prevented and trials their frustrated effectively illnesses Milosevic, InImmunity these two thussick,cases, standtrial. tooweak them,andare tooold,intheto casesof they Pinochet or too Hence the victims of is“long atplay,by time of realpolitikthe law”finally hand the thatreaches often the not onlydetain Because indictees. mechanisms lack which neededto arrest effective courts,” international waited, “certain those longfor waits areunreasonably there that show experiences These andother but also did not get to see the 280 http://news.bbc.co.uk/2/hi/europe/4796470.stm (Last visited Nov 15, 2009) 279 278 Nov 2009) 277 unexecuted. returned was Taylor, Charles of arrest the for Ghana to transmitted was which Arrest, of Warrant Leone’s pursuit, butdied pronouncementthe without of a finaljudgment. law immunities. 2008. mid- until years, 12 for trial evaded successfully nevertheless Karadzic ICJ. the by mentioned courts” international “certain of those one by ICTY, indicted the Serbska)was of Replublika the Radovan self-styledcustody of becannot (the president Karadzic an incumbent overemphasized. See See Milosevic Found Dead in His Cell, BBC news, Saturday 11, March 2006 available Id.,. at See The Guardian, at http://www.guardian.co.uk/world/2008/jul/22/warcrimes.internationalcrime (Last visited 277 Case No SCSL-2003-1-AR72 decision of May 31 2004. In general, Immunity presents a major structural obstacle not only to the prevention of prevention the to only not obstacle structural major a presents Immunity general, In Interestingly, even after his arrest, he still went on to raise claims related to international 278 Slobodan Milosevic of the former Yugoslavia was arrested after two years of 280 A final example is the ICC’s attempt to take custody of Omar Al Bashir. 51 279 The Special Court of Sierra CEU eTD Collection granting immunity to a foreign state. foreign a to immunity granting procedural rule, in itself is used to deflect acknowledgment and examination of the impunity which often results by Journal of International Law Vol.18 no.5 EJIL (2008): 903 281 immunity to aforeign state.” acknowledgmentrule…deflects and of examination impunitythe which often results by granting immunity a procedural “theframingas of asonecontrary, scholaracknowledged, rightly be Onthe considered tenable. of justice cannot criminal aspect andprocedural substantive provides very valuable aidtoimpunity. the In regard, ICJ’sthis theoretical dichotomy regarding Lorna McGregor “Torture and State Immunity: Deflecting Impunity, Distorting Sovereignty” The European 281 52 í 919 McGregor arguesthat the framing of immunity as a CEU eTD Collection Force on 1 282 17 July on Court (ICC) Establishment1998. Criminal an of International 4 Oct 2004. Doc ICC-CPI-20041001-77 at http://www.icc-cpi.int(accessed Oct 2009) 287 Article 13 (b) of the statute. See included. are also Referrals Council ofUN Security by way jurisdiction court’s comeunder that states those that agreements with ICC the for thepurpose of effecting its arrest warrants. Although still unresolved,I strongly think 286 http://www.isrcl.org/Papers/2008/OBrien.pdf. during the International Society for the Reform of Criminal Law Dublin, 12, Julythis definition.08 at See Address by Ms Patricia O’Brien, Legal Adviser to the Departmentcpi.int/Menus/ICC/Reports+on+activities/(LastvisitedOct14,2009).Many of Foreign Affairs, Ireland scholars and legal practitioners adoptedNations General Assembly of 1 Nov 2007. The is report can be found at http://www.icc- 285 http://www.un.org/News/Press/docs/2009/sgsm12094.doc.htm 284 January 2001, and 16 January 2002. 283 http://www.icc-cpi.int(last visited Oct 3, 2009.) states bythe represented system” pillar two address to the United Nations General Assembly, described the Rome Statute as establishing a “ structure. systemic among other things, to shed light on the statute’s implementation features and the statute’s attempts, Thischapter global on scale. the human rights of in the security tool amajor as stands statute the Yet feature. implementation statute’s the of doubt raised have commentators adoption, “ICC Statute”) 4.1 Understanding theRomeStatute’s Two Pillar System CHAPTER 4: THE POTENTIAL WITHIN THE ROME STATUTE SYSTEM STATUTE ROME THE WITHIN POTENTIAL THE 4: CHAPTER TheRome Statute of Internationalthe Criminal Court was adopted 17July,1998by120 States and Entered into In fact ICC-UN entered into an agreement pursuant to Article 2 of the Rome Statute and entered into force on the These referto states that are party to the Rome Statute but also include those that enter into temporary These statements are contained in the Third Annual Report of the International Criminal Court to the United Judge Phillippe Kirsch was first President of the International Criminal Court and Judge 2003-2009. See As corrected by procés-verbauxthe of 10 November1998, 12July 1999, 30 November1999, 8May 2000, 17 The Judge president of Phillippeof The Court Kirsch, International the Judge president Criminal The Rome Statute of the International Criminal Court (hereinafter “the Rome Statute” or st July 2002, as of October 3, 2009, 110 states have ratified the Statute, a copy can be found on 282 was adopted by the UN Diplomatic Conference of Plenipotentiaries on the 285 ; ‘a judicial pillar represented by the Court, and an enforcement pillar 286 and by internationalextension organizations.’ 53 283 However, since its since However, 287 This systemic This 284 in his2007 CEU eTD Collection conferred 292 291 http://asiapacific.amnesty.org/library/Index/ENGIOR530072007?open&of=ENG-385( Last visited Oct 2009) courts to exercise universal jurisdiction overconduct amounting to a crime under international law.” 290 289 Also see Antonio Cassese, International Criminal Law, 2 Edn (2008) pg 31Oxford University Press. limitation with respect any totimeand and immunity of place. defence See the http://www.un.org/millennium/law/iv-1.htm removed peace, or ofwar time in committed whether crime, international 288 since its adoption in1949. Convention Geneva the under breaches grave the constituted have Humanity against Crimes of Unitedthe Nations in adoption the of Genocidethe in Convention 1948. international crimes. For example, genocide was the first crime to be enlisted under the auspicesneither is the requirementbased onthat the theystrong must reminder be punished. that theSome crimes of these by governed samethe law. for crimeswhich theare ICCthe has are Statute, Rome the under when acting oldest parties), and state the court (the pillars the clarify that jurisdiction of are not as a system should viewingin statute the Importantly, judicial organ. the co-operation structured new; of systems,andof core degree the thean understanding littlestatute’s of alsoadd very would to but organs judicial statute’s the of interdependency the out leave only not would this as system, wouldbeinterpret difficult or applyto to text without of RomeStatute the the perceivingit as a example, isjudicial inherently powers function. a expected ofenforcementorgan deprived to It for how, explains importantly it yet scholarship, legal in emphasised not isoften framework states have been reluctant to carry carry out to been havereluctant states permitting their courts to do so). Supra, Amnesty Amnesty Study. Supra, See Atonnio Cassese, International Criminal Law, 2Edn (2008) pg 31Oxford University Press. According to a study by Amnesty International, “ approximately 125 countries have legislation permitting their See Supra Geneva Conventions 1949 and the Additional Protocol Iand II of 1977 an genocide declared it 1951, Jan 12 on force into entered Dec 1948, 9 on adopted Convention SeeGenocide The third aspect of the ICC statute is the complementarity principle. This principle is 290 , requiring all states to prosecute wherever these crimes are committed, an obligation 289 For each of these crimes, a universal jurisdiction was long jurisdiction each For auniversal of crimes, these 292 Thus, the international obligation to domestically prosecute domestically to obligation international the Thus, 291 (though nearly 125 states have put in have legislation put place nearly (though 125 states 54 288 War Crimes and CEU eTD Collection enforcement of international justice.” of international enforcement 298 Icc-cpt.int/press. www. at Court, ofthe jurisdiction the accepted has d’Ivoire Côte of Republic the that confirms SeeRegistrar Statute. Rome 3 of the paragraph 12, Article with accordance in sent was declaration The 2002. September of19 events the since territory onits committed crimes to respect 297 296 international community as a whole must not go unpunished....” 295 294 whether they are constitutionally responsible rulers, public officials or private individuals." See Article VI. 293 international law isnot flouted by unwillingunable or orun-cooperating states. the ICC pursuant to its Chapter VII powers,to the Rome Statute.whenever it deems fit. In so doing, it it innotparty even investigation d’Ivoire though was its Côte ICC accepting declaration territory ensures that is the such example a One to particular situation. with mayrespect anagreement ICC. It enter the beto party need not this astate In effect. that to is agreement an there parties where non-state in of situations occurring territories investigate permits andprosecute theICCto Rome Statute conventions, various the under asrequired crimes these wereprosecuting states insome of adoption tothe prior hasexisted Rome crimes the the of Statute 1998. unwillingness or inability to prosecute. to inability or unwillingness this regard, ICCisthe toinvestigate mandated andorprosecutor wherever nationally is there an by gounpunished.of perpetrators ensuring crimes mostthe not of that serious concern do framers, the ICChas therefore been specifically impunity existing with tasked closing the gap, its of mind in this With ICC. an for need a been not have would there domestically, prosecution theirprevent as to so in thesecrimes accomplices leaderships) their (and themselves not See Paragraph X of the Statute cited earlier. The parties “resolved to guarantee lasting respect for and the and for respect lasting guarantee to “resolved parties The earlier. cited Statute the X of Paragraph See TheRepublic of Côte d’Ivoire acceptedhas theexercise of jurisdictionby Internationalthe Criminal Court with See Article 17 (1) (a) of the Rome Statute on inadmissibility and Para 10 of the Preamble. See Paragraph Supra. IV be punished, ofgenocide[...]shall committing the "[p]ersons that, states Convention Genocide ofthe IV PreambleSee Article of the ICC “affirms that that the most serious crimes of concern to the 297 Secondly, the UN Security Council has been permitted to remit cases to cases remit to been permitted has Council UN Security the Secondly, 296 To ensure that the above duty is given full effect, the 55 298 294 and also were 293 In fact, if fact, In 295 In CEU eTD Collection 306 305 303 international community as a whole must not go unpunished...” 304 of these crimes and thus to contribute to the prevention of such crimes” 302 301 available at http://www.icc-cpi 300 October3, 2009.) cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30E16/0/Rome_Statute_English.pdf(last visited 299 mosaic’ human family” the of ‘delicate tothe threat is “the existing to aresponse Statute the paragraph, preambular first its In existence. (ICC) Court Purpose oftheRomeStatute and 4.1.1 HistoricalReasons deeply shock the conscience of humanity.” of conscience the deeply shock that atrocities unimaginable of victims been have men and women children, of “[...]millions security security and well-being of world”the thepeace, threaten that “grave crimes (i) crimes, of categories of overlapping three perpetrators for the impunity put anend to to seeks therefore Rome Statute that states further The preamble unpunished. as awhole” the international to of community humanity crimes serious conscienceconcern most the and of interpreted asproviding needed. necessary interpreted the whenever assistance cooperation international enhanced by and complementarity of principle the level measures national by takingthrough at the isbestensured prosecution idea effective that See Rome Statute Preambular para 10 para Preambular Statute Rome See See fifthParagraph in which the statute echoes its determination (.. See Third Paragraph of the Statute on the affirmation “... See second Paragraph to, that begins with “Mindful that this century...” time), atany be shattered may mosaic delicate this that “[...]concerned Preamble ofthe Paragraph, Seefirst See Supra The Rome Statute of the International Criminal Court available on http://www.icc- Id.,., Id.,., preambular para 3. The first five preambular paragraphs of the Rome Statute of the International Criminal 305 302 299 and in so doing thus contribute to their prevention. The Statute is premised on the on ispremised Statute The prevention. their to contribute thus doing so in and Further the preambular noted concern Further preambular the noted growing the ‘impunity.’about culture of draws upon its history draws uponits history ofthe and some key reasons whythe cameICC into 304 300 , (ii) “unimaginable, (ii) thatdeeply atrocities shock the and disturbingfactin the that century pastthe 56 301 Yet perpetrators of grave crimes are left are of grave crimes perpetrators Yet that the most serious crimes of concern to the to put an end to impunity for the perpetrators the for impunity to end an put to 306 —which can be can —which 303 CEU eTD Collection to refersituations within territories of statespartiesthe envisionedother much it was not as that wouldensurestates that be able intended party to underArticle hand, 13(a)—was referrals state could be used to serve those purpose earlier theICC since unnecessary, ICTR andthe ICTY likethe adhoc tribunals further of creation the served by the ICTY and the ICTR. itfor UNSecurity Article opinewas Council Referral render 13(b)under commentators to that in accordance with Article 15. with in accordance Chapter VII referral under Article 13(b), withArticle Party Articlein 14, accordance 13(a) under State referral in Statute. 13of Article the out laid mechanisms” “triggerthree court’s This isdate July 1 2002. limited isAsdefinition adopted. for ICCliterally jurisdiction, the hasan inactive Edited by Carsten Stahn and Goran Sluiter. Martinus Nijhoff Publishers States referring their own cases to the318 ICC. 317 316 315 314 313 Statute” this of force 312 311 Geneva conventions 1949 310 309 308 307 genocide, as awhole.” community international to the concern of crimes serious An Overview Rationale: and 4.1.2 ICCCrimes,Jurisdiction See Foreword by Adriaan Bos, (2009)13 (ed) The Emerging Practice of International The Criminal Court, Article 13 (c) Article 13 (b) Article 13 (a) Article 13 of the Rome Statute of the International Criminal Court, 1998 cited earlier. It entered into force on1 July 2002 upon the 60 Article 11 (1) provides that “The Court has jurisdiction only with respect to crimes committed after Statute. Rome 5of the the entry SeeArticle into ofthe breaches grave the incorporate essentially it crimes, ofwar elements constitutive the 8for SeeArticle See Article 7 forthe constitutive elements forCrimes Against Humanity of Genocide. elements constitutive the for 6 SeeArticle Article 5 (1) The crimes within the remit of the court as listed in Article 5 (1) are, “limited to the most ratione temporis“only 308 crimes against humanity, against crimes 313 Even so, jurisdiction is exercised only upon activation by one of the of one by activation upon only is exercised jurisdiction so, Even 317 to crimes committed after the entry into force of force Statute.” of the into entry the after crimes committed to The rationales behind each of these triggers are as follows. As 309 316 war crimes, th and the Prosecutor’s propiomotu under Article 13 (c) ratification. 57 310 and lastly crimes of aggression of lastly crimes and 315 314 secondary jurisdiction UN Security UNSecurity Council These ‘triggers’ are These‘triggers’ 318 307 On the other the On Theseare 311 when a 312 CEU eTD Collection 325 324 323 situation asadmissible. admissibility requirement, unless that the state is eitherunwillingly orunable genuinely that is whenICC will treat a 322 321 92F44E08D695/280578/Statement_Registar2.pdf 17 July 2009 Rome, Italy.Available at http://www.icc-cpi.int/NR/rdonlyres/9EA855BC-A495-40AA-B5F8- 320 International Criminal Court,ed. Carsten Stahn and GoranSluiter. (Berlin: Martinus Nijhoff Publishers, 2009) 13. 319 involved. gets ICCshall the that has which for crimes jurisdiction failICC prosecute refuse to states or until safeguarding the independence. Court’s Article out. turned later thecase as be self-referrals would there 13 (c) was to enable the prosecutor to initiate prosecution on its own, thereby perpetrators’ In Prosecutor of with use islisted. lawstogether orders of their structure applicable Article 21,ahierarchical 4.1.3 LawsApplicable tothe CourtandOther actors essential in to avoidorder “animpunity gap.” are such prosecutions domestic AccordingRegistrar, Silvana Court’s Arbia, the to courts. Essentially therefore, the primary responsibility of prosecuting ICC crimes is with national stated that: See Article 21 of the Rome Statute above. earlier cited Id., Arbia, by Silvana SeeRemarks See Article 17 of the Rome Statute; under which the duty to prosecuteearlier. cited ICC crimes Arbia, by Silvana domestically SeeRemarks is an See Remarks by Silvana Arbia, ICC RegistrarNo Peace without Justice Roundtable onImplementing Legislation ofThe Practice Emerging The in Motion” in Court Criminal International “The Ocampo Moreno Luis See In nutshell,not even with respect to ICC crimes is the ICC a court of first instance. The second important aspect of the Rome Statute relates to its governing body of law. In body of its governing to relates Statute Rome aspect of the important The second Crimesand Rulesof and firstplace” only Procedure Evidence “in and “in the the place” second Article 21, paragraph 1, of the mandatesStatute the Court to apply its Statute, Elementsof thus leaving apotentially large number be of perpetrators to tried domestically. v. 322 Kony and others, the Pre-Trial Chamber II in its decision of Kony 2005 in its of 28 October Pre-Trial the Chamber decision and others, II And even then, the focus of the ICC will only be on the ‘ 320 324 58 319 The Prosecutor’s propio motu undermotu TheProsecutor’s propio most serious 321 It is 325 323 CEU eTD Collection 328 2002 are available at http://www.sc-sl.org/documents.html.16 January on Freetown at done Statute Court Special the containing Annex its and Leone Sierra for Court Special 327 Reconsideration, and Motion forClarification, ICC-02/04-01/05-60,PTC II, 28 October2005,para. 19. Pre-Trial Chamber II to Redact Factual Descriptions of Crimes in the Warrants of Arrest, Motion for sessionNew-York, in 3-10 September2002, Official Records, ICC-ASP/1/3 (Part II-A). by the Assembly of States Parties to the Rome Statute, in accordance with article 51 of the Rome Statute, at its first 330 329 Nijhoff:Berlin 2009) 281-304also see Emerging Practice ofthe International Criminal Court ICC. the after come and proceeded have both that tribunals international the 326 from national laws of legal systems of worldthe provided including[...] thoseprinciples are not Court by lawthe of derived generalprinciples “Failing that, And third, conflict.” lawarmed of international the of principles established the including law, international of rules and principles “treatiesis andthe 21 (1)(b),that to thenmaketo recourse insecond maythecourt the place and Evidence. Rules of Procedure andits of Elements Crimes Article 21 (1) (a), demands that thirdisthe it hierarchy the establishes.” theand content its of Court specificity is the second the existence, its is first the ways: shall inthree exceptional apply in the first place theRwanda.” Statute, andthe the Appeals “the that Judges of Chamber Appeals the of Courtshall Special beguidedby the decisions of the Chambera hierarchy without SCSL provides of the Statute Article asurvey20 (3)of the By contrast, of of the International Tribunals for the former Yugoslavia and for The Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Establishment the on Leone of Sierra Government the and Nations United the between Agreement The See Article 21 (1) (a) of the Rome Statute, referred rules, that is Rules of Procedure and Evidence, was adopted was Evidence, and ofProcedure Rules is that rules, referred RomeStatute, of the (a) (1) 21 SeeArticle Id., pp -285-304. See Pre-Trial Chamber II, Prosecutor II, Chamber SeePre-Trial Gilbert Bitti opinion “The Treatment Of Sources Of Law In The Jurisprudence Of The ICC” In “applicable law”, before the Court beyond the scope of article 21 of the Statute. rules and practice ofother jurisdictions, whether national or international, arenot assuch including establishedthe principles of internationalthe law of armed conflicts”. Accordingly, the and “where appropriate”, “applicable treaties principles andthe and rules ofinternational law, Gilbert Bitti,Gilbert commenting on uniquenessthe ofArticle 21,observes Articlethat 21is 327 v. at(Koninklijke Brill nv;The Netherlands , 2008) pp. 285-304. Kony et al., Decision on the Prosecutor’s Position On the Decision of 328 Bitti Bitti notes exitin thisthat not provision does any of 59 eds Carsten Stahn and Göran Sluiter ( Martinus 330 Only‘where and appropriate’ 329 326 The structure of The CEU eTD Collection 335 I’s 31 March 2006 DecisionDenying Leave to Appeal, 13 July 2006, ICC-01/04-168, paras 33-42. 334 333 of theInternational Criminal Court 332 331 gap, that there wasthe argue that tried to Thomas Lubanga Dyilo, v. in interpretation Prosecutor of the case this Chambersupheld TheAppeal gap inthe Statute. of Romethe Statute.” 51(5), Article with accordance as out supremethe law” prevails hence “[...] and the Rules and over Procedure of Evidencein stands Statute in the hierarchy,is which a there hierarchy the that“even within observes further enforcementpillars) should follow thishierarchy.Bitti agree to withseems position,this and he as mandate their under acting (when parties state indeedand commentators, academicians, of law. on sources applicable the isorder theacceptable established argumentationsitmeansin is alllegal RatherViennaTreaties. ontheLawsof whatthat Convention the of 38 in Article presented stipulated as law international of sources the disregard completely not does however, article, The before ICC. the to respect with be applied shall they in which order the and law the Court and in all decisionsand standards.” norms recognized internationally and law international with and Statute this ofwith inconsistent the Court, the hierarchy Bitti, loc. Cit., fn. 350, para 285 Id., Gilbert Bitti “The Treatment Of Sources Of Law In The Jurisprudence Of The ICC” In ICC” OfThe Jurisprudence The In Law Of Of Sources Treatment “The Bitti Gilbert Article 21 (1) C Appeals Chamber, Judgment on the Prosecutor’s Applicationfor Extraordinary Review of Pre-Trialthe Chamber ., para 284 given effect to by its provisions. The lacuna postulated by the Prosecutor is inexistent is Prosecutor the by postulated lacuna The provisions. its by to effect given noticeable in Statute the with regard to the power claimed in the ofsense anobjective not being decisions of first instance courts, namelyThe inexorable inferencedecisions isthatthe definesStatute exhaustively rightthe to appeal against of the Pre-Trial or Trial Chambers. No gap is Lastly, the application of the second or third sources of lawis subject to the existence of a In other words,Article 21should be regardedasacomplete statementon sources the of 331 334 in which it concluded contrary theaverment he it Prosecutors when contrary inwhich to concluded edsCarstenStahn and Göran Sluiter (Martinus Nijhoff:Berlin, 2009) 281-304 60 333 332 By extension I also think also I extension By The Emerging Practice 335 CEU eTD Collection claims based on official capacity with regard to prosecutions before the ICC, yet within the 340 339 338 procedural rules which may attach to the official capacity...” persons without any distinctionbased onofficial capacity.” Article 27 (2) adds that “Immunities orspecial 338 (2001): 429–458, p. 456. see 337 render as“ to purport expressly clauses (2)would (1)and 27 Article why wonder they Specifically, law. same the of hand other the by restored again is law the of hand one by suspended well obligations and rights whereby provision, claw-back a to similar which appears a component exist would there ICC, of the Statute as the instrument and Article 98 341 also Warrant forSudanese President Omar Al-Bashir” 336 Article 98) 4.1.4 SupposedConflict Clauses(Article 27and BetweentheTwoImmunity and Evidence. RulesProcedure the of in Article 21 (1) (b) or (c) cannotbe used just to add other procedural remedies to the Statute and objective. that to effect thus obliging the judge andEvidence, or Rulesby of the of Statute provisions the Procedure be express effect the given to resortnot would which objective an to Statute, the of thepurpose and object the or secondcontext the from inferred or third source of may be could bedefined which An “objective” Bitti Statute” “a gapin According as to law—inthe that order—to give Article 27 is titled “Irrelevance of official capacity.” governs 98 Article Article 27 (1) is on the “Irrelevance of official capacity” it provides that “This Statute shall apply equally to all Buzzard, and Gaeta loc., cit., fn 383 See Id.,., See SteffenWirth “Immunities, Related Problems, and Article 98 of the Rome Statute” Criminal Law Forum, 12 see Lucas Buzzard “Holding an Arsonist's Feet to the Fire? - The Legality and Enforceability of the ICC's Arrest ICC's ofthe Enforceability and Legality -The Fire? the to Feet Arsonist's an “Holding Buzzard Lucas Article 98 clause 2. Paola Gaeta “Does President Al Bashir Enjoy Immunity from Arrest?” para 286 The concern of most commentators of The concern 340 “ relates to how, in such an important ground-breaking international legal international ground-breaking important an in such how, to relates Cooperationwith respect to waiverof immunity and consent to surrender” 336 What law above the isthatthe subsidiary of means sources described 337 American University International Law Review 338 grappling with the legal construct of Article 27 Article of construct legal the with grappling 61 irrelevan JICJ t 341 ” any existing immunities existing ” any 7no. 2 (2009):315-332, also 24, (2009):897, 339 CEU eTD Collection waived allsuch immunities with respect to their nationals. See Sarah Williams and Lena Sherif loc. cit., fn 369 346 law.” agreed, by ratifying the Rome Statute, to waive their rights to procedural immunities under customary Court” internationalSecurity Criminal International the and of State Heads of Incumbent Immunities Bashir: 345 state.” another serious most of the perpetrators internationalthe for crimes is impunity preventedending from with requesting tasked a state court to surrender those perpetratorsproportions-the if they Gordian of are officialsknot of 344 that blamethe lies with language draftingthe of Article 98. party] notobtained. [non-state argue They surrenderby are thirdconsent State concerned the to state mayif never beissued—or, it isissued,if maynot be effect given immunity waiver of and indicteeathird national of of andan for arrest ‘a surrender’ asituation request whereby creates Stateshasinternationaladhere aduty which therequested law to under to. first with respect tonationals of third States, and second, where there is a subsisting agreement to same Statute, Article 98 (1) suggests anintention giveto effect to the rule of official immunities; surrender are not needed when dealing with ICC state parties,needed when surrender arenot with state dealing ICC in a similar2001, echoes view. immunity. are entitled to and state another of if are officials they perpetrators those surrender party to a state requesting been inplaced an inawkward position itiswhich virtually by prevented Article 98from withtasked for ending impunity of the mostperpetrators serious international the crimes, hasnot Inother words Article 98(1) is inapplicable because through State Party assent to the Statute they automatically STEFFEN WIRTH loc. cit., fn.1, also Lucas Buzzard loc., cit., fn. 364., at 932. He states that “ A straight reading of the two articles creates a logical 14, 1 (2009)71-92no SarahWilliams and Lena Sherif agree that “under Article 27 (2),states parties have Critics contend that this seemingly contradictory inArticle mismatch Critics provision contend98 this seemingly of that contradictory the The above stance is not limited to Buzzard alone; in fact Professor Steffen Wirth,Steffen writing Professor Buzzard alone; infact stanceisnotlimitedto The above One such critic, Lucas Buzzard, critic, One such 345 see He notes that, while waiver of immunity and consent for consent and immunity of waiver while that, notes He Sarah Williams and Lena Sherif “The Arrest Warrant for President al- President for Warrant Arrest “The Sherif Lena and Williams Sarah 344 writingquestionsin the whether ICC, 2009, although 62 343 346 the situation is different when it when is different situation the Journalof Conflict & 342 CEU eTD Collection behalf of the ICC at the national level. arrest: It must rely of onpowers national authorities. no independent has Court Thus the the because is removal this that of immunitystates Hemust correctly also be implied meaningless. to actionspractically takenonprovision 353 352 351 Immunities” 350 349 348 347 alsospeakstotheir Statute—and frame the of larger within isthe text situated where each reproduce wordfor wordthetextof 27andboth Article Article 98,asthisoffers anidea to resultin clausesreducing whole paragraphs of or a redundancytreaty to inutility.” or whichall free harmoniouslyadopt meaningis a reading them of gives andnot to to that would way ina atreaty of provisions applicable all read must “[...] interpreter treaty a principle, this to interpretation.” in treaty effectiveness of principle “the adopts if one irreconcilable position. above comply this request.” bound to with not aretherefore parties “States that vires” Al ultra it immunity. as contravenes Bashir’s Al andsurrenderis Article contrary president isBashir Statute itto 98(1)of Rome the an act States parties to to “the argues request that Geata Omar AlBashir, president, Sudan’s incumbent along a similar line. comesCommenting to non on thestate ICC’s parties. issuance and circulation of arrest warrants for published, interestingly, in samejournalthe and volume Id., Akande loc., cit., fn. 371 at 338 See The Journal of International Criminal Justice 7 no.2 (2009) pages 135 and 357 respectively Dapo Akande, “The Legal Nature of Security Council Referrals to the ICC and its Id., atImpact 315. on Al Bashir’s Id., Akande argues that Articlereading 27 as applying only to actions by Courtthe wouldparts render of that Id., Paola Gaeta loc.cit., fn 383 at 315 pg 456 Before exploring additional scholarly views on the debate, it is probably important to important is probably it debate, the on views scholarly additional exploring Before inherentlyprovisions isviewAkande (Article 27and98)arenot two of thatthe the Akande,Dapo scholar, other But one Journalof InternationalCriminal Justice 347 More Paolain argued More recently, Gaeta 2009 article, a Professor 7 (2009) 333-352 350 63 takes the opposite view in an article that was 348 On its probable legal effect, Gaeta opines Gaeta effect, legal probable Onits 351 in which Professor Gaeta takes the takes Gaeta in Professor which 349 352 353 According CEU eTD Collection that: to surrender and consent law. international and national in both contained procedure” of rules special and “immunities of application 358 immunities under customary international law.” “underArticle 27 (2), states parties have agreed, by ratifying the Rome Statute, to waive their rights to procedural 357 356 355 354 an itcreates immunity. hand,other 2ofArticlewords, the question clause of In other 27,expressly addresses the On statute. the under sentence of reduction or statute the of application the of exemption for serve asreason not shall position official that declares further The clause of an offender. clause, Article 27 (2) addresses specifically the question of immunity,it states that; capacity” isArticle 27 desired andinterpretation.contextual (1) reading titled “ Article 98 (1) addresses consent and waiverof immunity with respect nationals of non state party. For further discussion further For et al. and SCSL ICTR, ICTY, the Principles, codified the and IMT the in found are provisions Similar Article 27 (2) specifically addresses immunities. Article 27 (1) addresses officialcapacity. 356 first obtain the cooperation of that third State for the waiver of the immunity.” the ordiplomaticState of immunity or aperson of property a third State, unless Court can the the require requested would State which to act inconsistently with its obligationsassistance or under international law withsurrender respect for to request a with proceed not may Court “The Article 98(1)onthecontrary is titled “ As shown above, clause 1, of Article 27 is notan immunity clause but an jurisdiction over such a person.” whether under nationalinternational or law, shall not barthe from Court exercising its “Immunitiesor special procedural ruleswhich may attach to the official capacity ofaperson, person from criminal responsibility under this Statute[...]” In particular, official capacity as a Head of State or Government, [...]shall in no case exemptThis Statute a shall apply equally to all persons without any distinction based on official capacity. baring the selective application of the statute’s laws on account of capacity official the of laws on account statute’s the of application selective the baring and it stipulates as follows, that; immunity clause 357 see Sarah Williams and Lena Sherif loc. cit., fn. 369 page 77 para 3. They agree that ” and is situated in the cooperation regime in Chapter IX. It stipulates IX.It in Chapter regime inthecooperation issituated ” and , qualifying the provisions ofclause the , qualifying 1,andbaringspecifically provisions the 355 64 Cooperation with respect towaiver of immunity 354 Irrelevance of official of Irrelevance 358 official capacity official CEU eTD Collection contrary to the principle of effective treaty interpretation. treaty effective of principle the to contrary more would orbe texts givemeaning absurdto totwo out, Akande an indeed, correctly points as drafters; its of intention the been never have would that as inoperative, provisions the of one read with care to its draftersbe only not should text intentEach impression. but alsoa first-sight-type just in than more a demand way texts legal thatof gives it effect and does not render any is some tension. there that admits arereconcilable, Articles two the that argues who Akande, even fact, In reading. first on impression this had have commentators two provisions. obtain in aseparate obtain surrender orassistance’ with can the Court a inproceed before be isimmunity,place thefirst waived before the court can be found in violation of the provision of Article 98. Lastly, that which has to be resolved to issue is an law’ international with a ‘request of inconsistency the of determination the thequalifier, of virtue immunity. By the of waiver for the state that of cooperation the diplomatic immunity of a person or property of or state’ to the respect lawwith international under obligation state’s the with inconsistently ‘ if the is, qualifier assistance’” 362 361 appropriate basis.” assistance under this Part on the basis of an 360 359 The“court forward. seemsstraight The above Id., See Dapo Akande, loc., cit., fn 371 at 337 A third state by definition is any state that is not party to the Rome Statute. See Article 87 (5), (a) provides that ; “The Court may invite any State not party to this Statute to provide In a primafacie (note that this is not the same asthe issue of an arrest warrant under article 58). The request for surrender orassistance’ surrender for request ad hoc sense, Article 27 appears to beA number byArticle contradicted 98.of Article sense, 27appearsto which the court may through is cooperation regime of Article 87 (5) (a) agreement. ad hoc 360 Thisis asnapshot of the controversies surrounding the arrangement, an agreement with such State or any other orany State such with agreement an arrangement, ‘may’ notproceed 65 a third State a would require the requested state to ‘act would requested require the 362 Notwithstandingimportance of the 359 unless the Court can first obtain with a 361 However, interpretations However, ‘request for surrender or surrender for ‘request ‘request for CEU eTD Collection follows: Article 27 read together (clause 1, and 2) purports as“ purports toregard (clause 1, and2) follows: Article27read together and incontext lightitsof object andpurpose” good faith in accordance thewith Viennathe ordinary Convention meaning [given] on the to theLaws terms of of Treaties,the treaty in theirwhich requires a treaty to be “interpreted in 367 366 Ngudjolo Chui,10March2008, Pre-Trial ChamberI, ICC-01/04- 01/07-257. 365 prevails. significance greater a rights human accords which one the 364 363 ICC, of the in matters applicable laws of hierarchy in the law superior isthe Statute Rome the that principle In this regard, therefore,theproper interpretation of Article 27and98must beguidedby first the Katanga clear.lot is a former recognized humanrights.” stipulatedhierarchy in inArticlemust amanner beconsistentinternationally 21and with be inthe ICCshall the to lawsapplicable the of that“interpretation It provides inArticle 21(3). out is interpretation set theof principle general Rome the With Statute, to beregard interpreted. treaties. In fact, most treaties contain clauses or at least a guide on how their provisions should rule,the aforestated rule oughtnottobeas the understood in startingthe interpreting point 368 2. para 82 page 365, fn cit., loc. Sherif Lena and Williams seeSarah also interpretation, oftreaty rules by ordinary be filled cannot lacuna the that ICCand of the framework inthe lacuna a is there where to referred be only 21 may Article in to referred oflaw sources other that held has court ofthe jurisprudence the Article 21 of the Rome Statute, also Id,. Prosecutor Gilbert Bitti loc. cit., fn 356. The general guide to a human rights approach to interpreting treaty Article provision21 (3) ofis thatthe Rome Statute Id.,,loc.cit., fn 385 Bearing the above in mind, my interpretation of the two provisions would flow as Convention on the Law of Treaties[...] Statute, look at the general principlesof interpretation as set out in article 31 (1) of the Vienna in addition to applying general the ofprinciple interpretation outset in article 21 (3)ofthe contours of the statutory framework forin provided the the Statute, Rulesmust,Regulations, and Considering thisthat, as Chamber has repeatedly stated, the Chamber, indetermining the . 365 367 It stated: v. Germain Katanga, Decision on the Joinder of the Cases against Germain Katanga and Mathieu andnextby interpretation generalprinciples the in setoutof Articleas 31(1)of Prosecutor 364 The Pre-Trial Chamber I reiterated the above in above the Ireiterated Chamber ThePre-Trial 363 v. Germain Katanga Germain While the latter has not yet gained a concrete framework, the framework, yeta concrete gained hasnot latter Whilethe see ICC Decision on al Bashir’s Arrest Warrant, para 45, the PTC noted that noted PTC the 45, para Warrant, Arrest al Bashir’s on Decision ICC 366 368 66 Prosecutor v. Germain v. Prosecutor irrelevant ” the official CEU eTD Collection 373 warrants asthat is regulated by Article 58 372 371 a request could notcompletelydoes all issue/transmissionsprevent of for arrestanda ‘requests surrender’, since pursuant legal Even for and Article surrenderandassistance 98 separate so, instruments). arequest are to Article Bashiraslawful. against Al warrant 87 (b) be transmitted an arrest issuecirculation of and theCourt’s accepts and still,for surrender’, arrest ‘request to none states entities but to the 370 27. Article that directed Article to an the statutethat mean would as This a whole parties). appliesstate both states(ICC to by the the ICC and represented to pillar ICC stateenforcement an parties, and (ICC) whichcourt would be the nature of 369 considerationsArticle 98. of Articlepursuantto 58,under conditions separate and termsand inmyviewindependently the of are made of for warrants arrest IX,applications by Chapter regime of regulated cooperation the surrender’ should notbe confused with Warrants of Arrest. issue. parties should cooperation states of the seeking andsurrender’ for arrest a ‘request not whenor whether determining “court” specifically applies not as a contrary.save providedthe to triggered, expressly where ‘principle’ ofthe the provision statute that in words, other Suggesting, Statute.” Rome principle of the “a core butArticle 27is statingthat of Articlerather an27 exceptioncutsWarrant of Arrestfor President Al Bashir, the ICC Pre-trial Chamber re-echoed this position,across directed the Statute. of operation underthe the Rome brought persons atStatute the as law) any of accused national international immunitiesand or (under special procedures capacity, a whole provided the Statute is Gaeta, See Article 58 of the Rome Statute. Rome of 58 the SeeArticle See Article 98 begins with“The Court may not proceed with a request forsurrender or assistance....” ICC by the represented pillar a judicial system, pillar asatwo establishes Kirch, Judge to according statute, Rome The al Bashir Arrest Warrant Decision Warrant Arrest al Bashir Article 98 should have been one such an exception but it is not. First, Article 98 Article First, not. is it but exception an such one been have should 98 Article loc. cit., fn 1 372 This should explain why even Geata, who is critical of the ICC the of critical is who Geata, even why explain should This In my view Article 98 seems not barring the issue and circulation of arrest 373 paras 44-45 The logical explanation is that the two (a warrant of of arrest (a warrant two the is that Thelogical explanation 371 As earlier mentioned, ‘a request for arrest and for arrest ‘a request mentioned, As earlier 67 369 Inits March issuing2009 decision a While the latter is While inand latter situated the 370 CEU eTD Collection 379 378 Ass’n, 137 F.3d 1293,1298 (11th Cir.1998). Underwriting, also Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998). Bankers Ins. Co. 377 376 pursuant to Article 58 375 374 with “ proceed “shall” in “may”; Article 27,Article “The word 98employs itstates, the “ Court consider language. totheuseof is choice issueof verb other the contrast the drafter’s In to regional organization.” anyappropriate or Organization Police Criminal “International act inconsistently [...]” create “problems to non-native English speakers,” English non-native “problems to create only should “may”)and (“shall” thesecontradistinctions useof the arguesthat Gaeta realm. with a inproceed tocourt degree offlexibility to hasbeen not granted determination the whetherof or canon that these two are notsynonyms. two these canon that “shall” is by no means the same as “may” within alegal interpretation regime. It is an established ‘shall’ [...] normally creates an obligation impervious to judicial discretion.” & Lerach Hynes WeissBershad Milberg process.” review mandatory than rather discretionary suggests a was distinguished that “[t]he use of a permissive verb —‘may review’ instead of ‘shall review’— In adistinction. needfor the decision supports ambiguity so as isweed out to import “may.”Their verb tothe to meaning attributed than rather ‘discretionary’ the convey with clarity the nature of a given power. The plethora of judicial Lexecon, Inc. supra. case Rastelli Rastelli See Gaeta loc., cit., fn. 359 at 328 issued Warrant Arrest an from different is assistance and surrender for a request earlier As noted (1) 98 Article See Article 87 (1) (b) of the Rome Statute request for surrenderrequest for or assistance; v. Warden, Metro. Correctional Center, 782 F.2d 17, 23(2d Cir. 1986); v. a request for surrendera requestfor orassistance” Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998). see Lopez 375 v. This a clear utilization of non mandatory suggest someword that Davis, 531 U.S. 230,241 (2001) 377 Use of the verb “shall” generally carries a ‘mandatory’ , the US Court expressly stated that “The mandatory “The that stated expressly Court US the , a duty which squarely is placedwithin the Court’s Rastelli v.Warden, Center Rastelli Metro.Correctional 68 376 aview Ifind not very convincing. The verb which would require the requested State to State requested whichwould require the v. Florida Res. Prop. & Cas. Jt. 378 Further in Further see ,Lexecon Inc. ,Lexecon 379 Lexecon, Inc. v. Inc. Lexecon, v. Milberg may 374 ” not The , it , CEU eTD Collection Bashir (ICC-02/05-01/09),Pre-Trial ChamberI, 4March 2009, para 41-45. 384 383 382 each request. on determination 381 case-basis case-by- a may necessitate Italso state. third of the cooperation obtain obligations on the requested state under international law. The court must also satisfy itself that it has failed to 380 ( sub-heading isin toArticle 27.This have its evident accorded notsame range of appears to application the in 1 Chamber Trial point. view her speaks totheflexibility thecourt’s within reach when making Article use of 98. for waiver for immunity a negotiation option of intostate cooperation a thirdwith entering of therein, requirements preliminary several the contrary, On the mandatory useofverbcharacter. suggest that the provision the a “may”the gave context present on official capacity.” on official “ states statement capacity application. heading. inform must Such categorization interpreter of an each radiusprovision’s orof range provisions ArticleArticle 98 and 27independently,each isprovision under a sub-distinct statute. provisionsa within to given sub-headings applicable, the where account into taking whole, in harmonious context, statutory broader in their read mustbe legal asidetexts manoeuvres. Those translations with careother andtreat interpretation Article 27 sub-heading. Gaeta loc., cit., fn 359 at 328 Itmay include; the determination of whether aparticularly request posses competing international legal See Decision on the Prosecution’s Application for aWarrant of Arrest against Omar Hassan Ahmad Al Bashir, Al IA Sutherland, Statutes and Statutory Construction (2002) 25, 6th ed. Rev.Norman J.Singer. Additionally, while context is important, nothing in the text of Article 98 read in the read 98 Article of text in the nothing important, is context while Additionally, Gaeta further makesGaeta further tothe Spanishreference and French version of statute the to buttress Article 27 appears to speakArticle generally 27appears to termsinbroad and“ on the ” and is directed at the Rome Statute as a whole; this can be seen from its from opening as be seen a whole; can this Rome atthe Statute ” andis directed “Cooperation with surrender”) waiver ofimmunityandconsent to “Cooperation respectto 381 This Statute ‘shall apply equally to allpersons’ ‘shallapplyequally ‘without distinctionThis Statute based any But it may be safer to rely more on established canons of of statutory canons relymoremay Butitestablished on be saferto the Omar Al Bashir Arrest Warrant case. Al Bashir Arrest the Omar 383 The encompassing character of The characterof encompassing provision this was confirmed byPre- 69 380 384 coupled with the discretionary the with coupled Article 98, on the other hand, other the on 98, Article 382 Looking at the two Irrelevance of official Irrelevance of and CEU eTD Collection statute’s adherence to the treaty lawprinciple treaty the to adherence statute’s law, international to reference with extensive was drafted within or that statute the Articleof itshould 98.Instead strengthen them. statute. ‘core principle,’ the underlying principle of Article of 27 must be read into every provision of the a that state. This duty squarely rest courtandthe with is not any open to major loopholes. including the waiver of obstacles (in this case immunity)in the event the indictee is nationala of 98 allows the court, in a separateArticle 27.agreement, Thus, with reference to those states (non-contracting to seek parties), the provision their of Article consent with parties.non-state Recognizing not basic this does undermine rule the overall of object the with respect to cooperation, court the of dealing the toaddress,particularly,be created hadto aprovision its Thus terms. andthereby statute, consent tothe not wouldsome states aware that also were its drafters mind, voluntary consent becameThe the means Romeconsent. their without bystates third on which rights, confer nor Statute obligations, statescreate not do treaties that became party being to the Statute. a treaty With this in is governed by this principle. As such the treaty rule of 27. Article in embodied principle in the I Chamber obligations or rights for athird State without its consent.” 389 388 387 386 385 inconsistentlywouldwhich [...]”.) State toact require the requested its openingphrase See Article 34 of the Vienna Convention on the Laws of Treaties, states that TheRome“A treaty statute althoughdoes annot independent create statuteeither does awhole. as not operate statute in the isolationpermeates 27 ofArticle internationalin embodied law. principle the words, other In The ICC DecisionforIssue of Arrest Warrant for OmarAl Bashir page 45 Article 98 387 Since the Rome Statute operates within the broader umbrella of international law—and international of umbrella broader the within operates Statute Rome the Since This notreducein reading does material any the particulars provisionsof content other (“TheCourtmay not proceed with arequest forsurrender or assistance Omar Al Bashir Arrestwarrant decision 386 Thisbe said ofArticlecannot 98.Asanembodimentof a pacta tertiisnecpacta nocentnecprosunt 70 388 Article 98 stands as evidence to the asevidenceto Article 98stands restated the superiority nature of superiority the restated 385 The ICC Pre-Trial ; the principle ; the 389 CEU eTD Collection 397 396 without delay in order to resolve Court matter. the the with consult shall State that request, of the execution the prevent or may impede which problems identifies 395 394 393 392 President of ICC the since March2009 and See http://www.iccnow.org/?mod=judgespresidency (Last visited 2009) 391 Headquarters in New York on 18April 2002. (CICC) during the9thsession of Preparatorythe Commission for Internationalthe Criminal Court atUN InternationalCriminal Court during anevent hosted by the NGOfor International Coalitionthe Criminal Court 390 and of thescope any such immunity.” existnotisat all, dobecause immunities decide ICC rather “up itthe but to existence the to on becausesurrender such not Germany — as inadmissibleanICCrequestto thinks whenacting on rendered be simply will immunity official of claims any Legislation, Implementing ICC German interesting illustration of how Commission Internationalthe of Criminal Court and nowJudgeof ICC, the Germany intends to interpret Article 98. He states that under the prohibits the trial in suspects of statute andin the that person, attendance suspect’s the without is permitted Rome Statute when and when withnot tocooperate ICC, the Courtwouldthe practically never function. elective. He argues that drafter’s intentifas ensuring thatcooperate the with duty to is court the mandatory notand states had the last say sumsas to whetherthis in orwhat not heto cooperatecoinedimmunity beforeas or“the theto Courtelect principle at any time.” Andhe correctly notes may “states that bring their viewsregarding problems conceived with of who has the last say.” itimmunitiesnot proceed with decide to exist, will inArticle requestthe asisprovided 98.” See Hans-Peter Kaul loc., cit., fn 409 para 8. it which to in relation Part this under request a receives Party State a “ Where that provides which 97 Article See Id.,., also see Article 97 and Article 119 of the Rome Statute Id.,., Id.,., Hans-PeterKaul, hasbeen ICC Pre-TrialJudge in the Division(since September 2003) Secondand Vice Id., See presentation by Hans-PeterKaul, Head of the German Delegation to the Preparatory Commission of the page 8 page Judge Hans-Peter Kaul, Judge Hans-Peter This is a very logical opinion, particularly when one considers that no trial under the under trial no that considers one when particularly opinion, logical very a is This 390 former head of the German Delegation to the Preparatory the to Delegation German of formerheadthe absentia 392 He adds that “if the Court comes to the conclusion that 394 This is expressly in forprovided Article 97. . In conclusion, I am of the view that the two 71 396 He rationalizes the 391 offers a very offers a 395 397 Kaul 393 CEU eTD Collection Party Obligation toGive Effect tothe Arrest Warrant. 4.1.5 TheArrest Warrant for President OmarAl Bashir: The Debate onState matter. attention this on has courts that state of drawn the no now, Iknow Asof interpretation. for of Justice Court to International matter the refer the needed, if may, henceforth which ICC, the to be sent should 27 Article and 98 Article of interpretation any conceived ICCat the problems the would that to I argue time, problem the with conceived views may regarding theirfor bring assistance, a request of upon receipt states, International Court of Justice in conformity with the Statute of that Court.” make recommendations onfurthermeans ofsettlement of dispute,the including referral to the Resolution1593 of 2005, See Res/1593/2005. 400 399 398 2009 measures of 4 March judicial unprecedented States Parties.” negotiationsthrough settled not is which withinStatute this of application or threeinterpretation the to relating months of their commencementArticle 119,whichprovides, that;“Any dispute more other two or between StatesParties shall be referred of,to or settlement of thedisputes relating to the Rome AssemblyStatute, should be dealt with in accordance with of interpretation the relatingitany to would dispute that by Article 21, alsobeadvisable established as discussed Failing above. suggestions, above the andfurtherbasing on hierarchy the provisions, although to some extent confusing, are notinherently at odds. They can be reconciled The situation in Darfur Sudan was referred to the Office of the Prosecutor of the ICC by UN Security Council by UN Security ICC of the Prosecutor the of Office the to was referred Sudan Darfur in situation The Id., Article 119 of the Rome Statute The UN Security Council referral The UNSecurity Mindful of aboveprovision,the Article and provisionthe of of 97whichprovides that 398 It further adds that “the Assembly may itself seek to settle the dispute or may 400 of situation in Darfur, Sudan to the ICC and the ICC 72 401 against President Omar Al Bashir of againstAl BashirPresidentOmar of Sudan 399 CEU eTD Collection Plan?” 402 cpi.int/iccdocs/doc/doc639078.pdf(Last visited Oct 27 2009). Bashir (ICC-02/05-01/09),Pre-Trial Chamber 1,4March2009 http://www.icc- 401 legal debate. of lot hasspurreda and5 others 405 Sudan, Trbune, 18 December,2008, at http://www.sudantribune.com/spip.php?article29615 (Last visited Oct,09) ending all our agreements with United Nations” see Sudan President Vow not to Extradite a Single Cat to the ICC,404 Security Council, and in many ways itwas.” International Law 403 strategy.” pragmatic term of alonger part as request, the substantiates evidence the that assuming arrest, Bashir’s Al President current request for the with (asis case the state of head incumbent state’s another over the state one of authority of the arrest and surrender the exercise which requires arequest, of such execution the whether immediately clear is not it of Sudan’s head of Plainly, immunities. law jurisdictional of on state obscure of current because the arises dilemma state), is not at odds by court interpreting Articlesimply 98(1) with the with cooperate to obligation can avoid their Rome the partiesStatute to States is that contention The of IX of Rome the inChapter terms Statute. with 6 March2009, cooperation accordance the States Parties’ to andon for submitted cooperation assistance questioning request legality of the victims of inDarfur. atrocities victims of the gesture in measure of andSecurity for asa“bold”,Council courageous” “strong support redress rejected in rejected accusedhasunequivocally of the nationality of state the Sudan, Onground, crimes. international of prosecution criminal to relating norms those and state of heads incumbent an for immunities of between rules the conflict apparent due to the court, the surrender to and Bashir’s arrest Decision on the Prosecution’s Application for aWarrant of Arrest Against Omar Hassan Ahmad Al Bashir, Al Article 98 (1) of the Rome Statute has been the subject of analysis in the previous section 4.1.2 Mahaz Faidul, spokespersonforPresident Al Bashir, continuedhas to threaten that“it will be nothing less than See Also see Robert Cryer Robert see Also ChristopherGosnell “The RequestArrest Warrantforan inAl Bashir, Idealistic Posturing orCalculated Journal ofInternational Criminal Justice To addto these now emerges a complexities, sharp scholarly legal in divide scholarship toto the ICC’s present assertion of jurisdiction on its territory and over its nationals. its over and territory its on jurisdiction of assertion present ICC’s the , 19(2006),195–222 Cryerstated that “Resolution1593 might be as strong actionseenby the “ Sudan, Resolution1593, andInternationalCriminal Justice 403 Others view the measures as insufficient to secure Al 6(2008), 841-85. authorThe views “the decision the to seek 405 in a manner in Al immunity. thata accords Bashir This 73 402 While some see the combined ICC and UN ” Leiden Journal of 404 CEU eTD Collection CriminalJurisdiction of ForeignState, discussed inChapter 3. 407 into Force of the Rome Statute, Judge Phillipe Kirsch. 406 ArrestWarrant for Al Bashir are express UN Security order to fully cooperate with the ICC), the other states that received the ICC seemwant actto to with impunity. who by occupy high offices seem protected governmental —and immunity—yetthey lawof the challengesenormous lyingin ahead effortthe tosecuring the criminal responsibility of those the it justiceasawhole; demonstrates internationalalso impact on criminal wide-ranging legallyParties inStates do aboverequestnot should hasa receiptof currently orshouldthe ICC what the about discussion the Therefore, subjects. unclear on legal discourse characterize often that interpolations and extrapolations usual the of devoid not is debate this that likely obscure. remains itstands as of law the state actual the new. Therefore, not is it although delineated immunity neverbeen is authoritatively law has an area of that head-of-state andfurther emphasise. needno warrants arrest of outstanding number the in evident very are challenges the yet absentia, in trial permit not does statute ICC the suspects, Chapter VII Security Council’s mandates. As concerns continuity of proceedings against charged in Darfur to the ICC and overall judicial if referred situation theResolution the legalweight, 1593of 2005that decisions, any, of the relationship between Article 13 (b), the law. international enjoy party to theRomeunder not over Statute ICC and the UN immunities that Omar Al Bashir should, as a sitting president of a sovereign state, that is more The International Law Commission Special Rapporteur is currently working on“Official Immunity From entry since Years Five Marks See ICC executed. been has only one but Warrants 8 Arrest issued have Judges The One scholarly view argues that, with the exception is withof which viewOneSudan, (upon there exception arguesthat, the scholarly an At their deepest level, the issues, as you will see, relate to the enforceability of the ICC’s not legally obliged to cooperate with the court. According cooperate to with court. the to legally obliged 74 406 On the other hand, other the On 407 It is very CEU eTD Collection than that.” than respect to crimes committed inthe territory orby nationals of states not parties to the ICC Statute. It is the nothingSecurity more Council is simply a mechanism designed to trigger the jurisdictionof the ICC, admittedly also with 416 415 that theCourt has issued awarrant that cannotbe enforced Al-Bashir while is in power.” 414 413 412 411 http://www.ggs.kuleuven.be/nieuw/publications/working%20papers/new_series/wp48.pdf (Last visited May 2010). THE ICC’S ARREST WARRANT FOR OMAR AL-BASHIR” Working Paper No. 48 - April 2010 410 Int'l L. Rev. 897 Warrant forSudanese President Omar Al-Bashir” American University International Law Review 2009 24 Am. U. 409 Justice,Volume 7(2009) Issue 2 Oxford University Press, 2009, pg 325. 408 states without theirimposition treaty court) onthird regimes the consent. of lawsa the may forbid be that of (regardless treaty treaties aninternational establishing criminal Gaeta, Paolo framework is “simply a ‘trigger mechanism’” ‘trigger a “simply is framework the views of Buzzard and resolution. In VII Chapter Security Council a UN by justGaeta,be tempered cannot above rule the that and, a UN Security Council referral within the Rome Statute rule, treaty-based tothe emphasis butassigns makes similararguments, Buzzard and “act ofArticleisSudan it issued ultravires.” 98 an therefore incontravention was from first obtaining partiesawaiver without cooperationICC states andassistance from request cooperation of terms Article 98.In Gaeta’s view, theleading ICCdecision exponent,the to treaty-based of ICC,thedelimitingthe character language of theResolution 1593, and legalandno thus of effect. law” international under enjoy should Bashir Al that immunity the contravenes waiver, official Bashir in his current positionscholarly, cooperation for the ICC’s request assistanceinand the arrestand Al surrender of as a head of state of a sovereign third state in the absence of an Id., Lucas Buzzard loc., cit., fn 431 at 932 Id.,., at 329 Id.,., pg 325 Gaeta loc., cit., fn. 9 page 325 Arrest ICC's the of Enforceability and Legality -The Fire? the to Feet Arsonist's an “Holding Buzzard Lucas Paola Gaeta “Does President Al Bashir Enjoy Immunity from Arrest?” Journal of International Criminal Supra, Michiel Blommestijn, Cedric Ryngaert, “EXPLORING THE OBLIGATIONS FOR STATES ACTUPON TO OBLIGATIONS FORSTATES “EXPLORING THE Ryngaert, Cedric Blommestijn, Michiel Paola 408 Gaeta, in pg330 Gaeta states that “ As [...] already noted above, under the ICC Statute a referral by Lacus Buzzard, 412 They base their conclusion on three key considerations, viz; the 409 and Michiel Blommestijn, Cedric Ryngaert, Cedric Blommestijn, Michiel and Buzzard adds “In the case of Al-Bashir, this inconsistency may mean may inconsistency this ofAl-Bashir, case the “In adds Buzzard 416 75 like any other which should not be understood not should which other any like 415 414 Buzzard states Buzzard 410 to argue that to in separate 413 Lacus 411 CEU eTD Collection effective treaty interpretation; requiring provisions of a treaty to read as whole taking inaccount read aswhole taking to a treaty of provisions requiring interpretation; treaty effective of principle the account into taking Statute Rome the of reading holistic a on draws also He VII. Chapter under security and international peace to in situation asathreat Darfur the determined relies on legalthe nature of UNChapterthe VII Security Council Resolution 1593, which (2010) International & Comparative Law Quarterly 205. 421 Immunities” Al Bashir’s on 420 Justice 419 organizationsinternational other and to cooperateregional fully.”concerned and States all “urges” Statute, the under obligation no have Statute Rome 418 questionof Al Bashir’s immunity, states that give effect to ICC’s request will do so in breachwhen itcomesof to his immunity.officials of non-State Parties” In his view in the absence of a definitive SC resolution on the not througha Security Council resolution, does not have the automatic authority to disregard immunities, especially isin group this perhaps of Dapo Akande, that arrestand legal to surrenderAl if theirobligation jurisdiction.Bashirhe enters Theleadingview by Gaeta: are well in articulated can that terms up bethe argument summed urging is no more than a call“fully cooperate.” to UNMemberStates “urges”other merely since it to give supportis concerned Sudan than other states from to cooperation themandatory as far inso force courtlimited has if other states so wish. The overall 417 Council. UNSecurity the of Organs serve asSubsidiary to mandate VII byaUNChapter created both or placing the ICC on the same footingas a measure elevating as the thetreaty based-ICCICTY into a orSubsidiary the Organ ICTRof the UN Securitywhich, Council unlike the ICC, were Ssenyonjo, International ‘The M., Criminal Court arrest warrant decisionforPresident AlBashirof Sudan’ Key in this group, see Dapo Akande, “The Legal Nature of Security Council See Paola Gaeta “DoesReferrals President Al Bashir Enjoy Immunity fromto Arrest?” the ICC and its Impact See Para2ofRes/1593/2004 Supra which states that “[...] while and recognizing that States notparty the to See , 7 no. 2(2009):325. e.g In contrast, another group of scholars argues that State Parties to the Rome Statute have a international court. to tantamount not is sayingcourts, national before immunity personal to entitled individuals that against statesto assert that an internationalcan criminal court can “lawfully” issue and circulate‘lawfully’ an arrest warrant arrest those individuals and surrender them to the requesting 417 Buzzard loc. cit fn 933 notes that “[..] the ICC, as a tribunal created through an international treaty and In furtherthe alternative, these that the contend languagescholars of Resolution 1593 Journal of International Criminal Justice 419 420 76 later joined later by Craig and Ssenyongo. 7 no. 2(2009): 335 Journal ofInternational Criminal 418 In their opinion, Intheir this 421 Akande CEU eTD Collection Garda Jamus, Saleh and Bashir; Al Ali Harun”); AliAbd-Al-Rahman Muhammad Kushayb”); (“Ali Omar incumbentthe president, (“Ahmad Harun Muhammad Ahmad including nationals, its of six for Arrest of Warrants overview of how the ICC came to exercise jurisdiction over Sudan, and, ultimately, to issue pacta tertiisnecnocentprosunt orthat the treaty rule Rometo the aparty Statute, becomes Sudan thereby anywhere purport that wanted by ICCin the of Darfurthe respect situation. Even, with of nature this duty, they not do in court the situation; the include whichin Sudan respect this national arrestingSudanese any same position as other ICC Member States Security Council Resolution Al immunity effectively Bashir’s in removed placed and Sudan the with regard to the obligation to cooperatethe court, or that it was a decision issued infully contravention Articleof 98. In their opinion,with the UN with cooperate to their with obligation comply duty to and aseparate state athird of as anational Parties, competingposes is, obligations onState that respect immunity aduty Al the to of Bashir legal. than be political himself within their If territories. areany,there they such argue that challenges would probably avail heever should and surrender” for arrest and “request the warrant of the in Parties receipt by and Court the ICC States hissurrender to AlBashir Omar arrestof the barring obstacle legal 425 424 423 422 its object. ICC-02/05-03/09, Issued underseal on 27 Aug, 2009, Ssenyonjo loc., cit., fn.431page 208 Akande loc., cit., fn.430 at 336 See Supra Akande. Supra 427 Before I delve further into the merits of these arguments, I should provide a brief Further, this group refute the claim that the ICC theclaim thatthe refute thisFurther, group , who recently voluntarily surrendered to the court. to the surrendered voluntarily , who recently 422 Ssenyongo and Craig present similar views. andsimilar Ssenyongo present Craig 425 Abdallah Nourain has been contravened. been has 77 426 , a Darfurian rebel leader, Bahr Idriss Abu Idriss Bahr leader, rebel a Darfurian , request forcooperationand assistance 424 423 428 To this group, there is not a single thereisnot Tothis group, CEU eTD Collection and the United States) whichand invoked theUnited States) Article13(b) of to refer Romethe Statute situation the 2005, http://www.un.org/News/Press/docs/2005/sc8351.doc.htm(last visited Oct 20 2009.) 31 March 2005. A copy of the Resolution can be found on UN website at 434 433 January 2005, at ,http://www.un.org/News/dh/sudan/com_inq_darfur.pdf. (Last visited Oct 20 2009). March 2005 acting pursuant to Chapter VII of Chapter VIIof to theCharter March 2005acting pursuantUN theICC. to referred in in situation the itrecommendedSecretary-General which that DarfurJanuary on 25, 2005, be UN the high-qualityyear, to its deliveredwhich a assignmentwithin report concluded a Commission of Inquiry withon Darfur (ICID) a mandateasperResolution 1564. October 2004,inlight of Resolution 1564, theSecretary- General established the International responsible of with of holding In accountable. identify those such violation aview perpetrators andto ofgenocide occurred have also acts determine to commission whether was requested humanitarian international of violation alleged the about reports into inquiry of commission international an law Resolution 1564, and humanSeptember rights 2004, law the on council, going inagain the actingDarfur under region Chapter of VII Sudan. of the UN ThisCharter, adopted 432 AFR/1046/HR/4797 ,571-572 http://www.un.org/News/Press/docs/2004/sga890.doc.htm, (Last visited Oct,2009) 431 meeting, on 18 September2004. 430 http://www.un.org/News/Press/docs/2004/sc8160.doc.htm (Last visited 29 Oct 2009). 429 428 427 426 internationalstability in athreatto security Sudan the region.andpeace and to constituted Charter of UN,determinedthe as 2004 aslong ago in 1556, that Resolution situationthe in Resolution1593 of 2005, or S/RES/1593 (2005) was Adopted by Securitythe Council at its 5158th meeting,on See Para 1,and 2 of Res. 1593of 2005. United Nations Security CouncilResolution 1556 July 2004, SC/RES/1556/2004 See ICC-02/05, Darfur,Sudan, www. Icc.org. (Lastvisited Oct,2009). ICC-02/05-02/09 Unsealed warrant issued on 17May,2009 Id.,., Issued under Seal on the same day. See See See 434 United Nations Security CouncilResolution S/Res/1564/2004, adopted Security by the atits5040thCouncil Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General’’,25 “Secretary-General Establishes International Commission of for Inquiry Darfur” Press Release SG/A/890 The Security Council, acting under its peace and security mandate of Chapter VII of the of VII Chapter of mandate security and peace its under acting Council, Security The by vote of a 11 in tonone favour with against, four abstentions (Algeria, Brazil, China 430 which requested that the then UN Secretary-General Kofi Kofi establish Annan whichthe that Secretary-General then UN requested 432 Thus, basing of ICIDrecommendation,the Security the Council on 31 78 433 adopted Resolution adopted 1593of 431 The ICID, 429 In CEU eTD Collection soon as practicable a request for cooperation in the arrest of Al Bashir. On the 6 March 2009, the ensure nothe andto does in commitfurtherproceedings, that atrocities Darfur. endangeringthe prohibit or him from obstructing to attrial, guarantee hisappearance satisfied itself that, under Article 58 of the Rome Statute, Al-Bashir's arrest was necessary to and againsthumanity” crimes 25(3)(a) of the Statute as an indirect perpetrator or as an indirect co-perpetrator for warcrimes are reasonable groundsPTC’s noted thatto it was believesatisfied (with the exception of thethat allegation of genocide)Omarincumbent Presidentof been in indicted Sudan, whohad 2008. Al Bashir is criminallyPre-Trial Chamber I(PTC)of the ICCissued an arrest warrantfor Omar Al Bashir, the responsible under Article of Arresthave beenissued. 441 ICC-02/05-01/09-1 reasonableness. save 439 scrutiny further no need stage this at Evidence ruling. inits erred Chamber Pre-Trial the is wanted. An Appeal has been filed for amendment to include genocide. Likely it will be granted. My view 438 is that oragainst individual civilians not taking direct part in hostilities and pillaging. Genocide is not listed. torture, and rape and two counts of warcrimes: intentionally directing attacks against a civilian population as suchunder (article 25(3)(a)) including: five counts of crimes against humanity: murder,extermination, forcible transfer, 437 A/63/323 pg 10, Distr.: General 22 August 2008. 436 website last visited Oct 20 2009. 435 investigation. aninvestigation Hence, with a formal proceed to basis” wasa“reasonable there that andconcluded information available based onthe evaluation apre-investigation undertook Prosecutor the Officeof the referral,the ongoing since1July inSudan Darfur,2002 to the Office of of Prosecutor the ICC. On receiptof 440 Id., pg 8 ICC-02/05-01/09 ProsecutorThe Id., pp. 3, The March04, 2009 warrant of Arrest doesn’t list genocide among the charges forwhich Omar Bashir The warrant of arrest forOmar Al Bashir lists 7 counts on the basis of his individual criminal responsibility See Report of the International Criminal Court to the United Nations for2007/2008 United Nations Doc ForDetails see The Prosecutorof ICC the opens investigation inDarfur ICC-OTP-0606-104, found on ICC See. “Decision on the Prosecution's Request for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir” Al Ahmad Hassan Omar against ofArrest Warrant a for Request Prosecution's the on “Decision In issuing the arrest warrant, the Pre-Trial Chamber I directed the Registry to transmit as The third arrest warrant is essentially where the debate is centered. On 4 March 2009, the Case The Prosecutor v. Omar Hassan Ahmad Al Bashir Situation in Darfur. 439 v. Omar HassanAhmad Al Bashir para 5. committed in committed since 1July Darfur 2002. 435 was opened on was 6 June opened on 2005. 79 437 In issuing the warrant, the 436 Since then, six Warrants six then, Since 440 Ultimately, the ICC the Ultimately, 441 438 “that there CEU eTD Collection 443 Immunities” Journal of International Criminal Justice 7 (2009) Oxford University Press, 2009, pg 335. 442 removed.” been “depends on whether theimmunitiesAl that wouldBashir be ordinarily entitled toenjoy have are entitled to act on the ICC’s request for bethe committing an international wrongful arrestact forbidden under the principle of sovereign equality. and surrenderother issue has been whether ICC State Parties that act on ofthe basis thisof arrest warrantAl will not Bashir to the shouldRome should Statute court or Al not protect from Bashirbefore arraignment court.The the the to party not is that state a of president incumbent an to granted immunity official the whether a personholding highest the governmental attention hasposition, shifted to questionthe about court that mainly goes after rebels. Now that the ICC has indicted and is requesting the arrest of for alleged crimes by the This marked thefirst time in history court’s the ICC. asittingthat is president being answer to sought Before this incident,members past incidencesof the Security had to Parties, ICC’sState the to andassistance for cooperation Council request the depictedcirculated Registrar that the areICC notas a party to the ICC, and to all UN Member States. one state that is under a clear international law obligation to arrest and surrender Al Bashir is Al Bashir and surrender arrest to lawobligation international clear is a under that state one that Akande agreeswith does Gaeta However, would. mechanism trigger an ordinary more than Gaeta is not persuaded by the view that the UN Security Council referral empowers the ICC above,As disagreed. noted substantially and Thison which anycourt. Buzzard is Gaeta point the in the same position asCouncil resolution, such thoseas Resolution 1593, places a state that is nota party to the Rome Statute states that ICC.” the areto situations of referrals Council Security parties in terms of the duty to cooperate with the Id., pg 335. Cf. Dapo Akande, “The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Dapo Akande suggested in a 2009 article that the answer to the question of question states whether answerinto the of the that Akande suggested a 2009article Dapo 442 He added that the resolution of Headdedthattheresolutiondepends onthelegalthis of nature of issue“[...] 80 443 To Akande, a Chapter VII Security CEU eTD Collection not proceed with a request for cooperation for arrest and surrender in and surrenderproceed for wherethe situations with arrest not cooperation a requestfor includes theobligation arrest any to by wanted Sudanese ICC. the law for obligation Sudan, although one which Sudan has notbeen complying with.” ICC Statute,” that which provides UNCharter, the of 103 Article on argument his based He law. international under have may States Member UN light Articleinwould,Article the 103of unseatany obligation of 25and UNCharter, the other the obligation to carry out a decision of the Charter.” UN Security present the with in accordance Council Council the Security of decisions the out carry and “accept premisedimposing as on Chapter VII 451 450 Geneva; of University and Florence (2009) Oxford University pg 135.Press, Paola Gaeta 2009, Professorof International Criminal Law, University of 449 international agreement, their obligations under the present Chartershall prevail”. the obligations of the Members of the United Nations underthe present Charterand theirobligations underany other 448 447 446 Charter”. present the with accordance in Council it provides “Thethat Members of the United Nations agree to accept and carry out the decisions of the Security 445 http://www.un.org/en/members/index.shtml (Last visited Oct 22 2009). 444 act isit and “an that Statute, Rome the of in issued contravention was Al Bashir President surrender Sudan itself, its given membership in Unitedthe Nations since 1956. Id., at 316 Id., Paola Gaeta “Does President Al Bashir Enjoy Immunity from Arrest?” Journal of International Criminal Justice 7 Id., See Akande, supra pg 335 See Id.,Akandepg 335 also see Article25of Charter ofthe theUnited Nations Organization, (UN Charter1945) See List of Member States of the United Nations Sudan became a member on 12 Nov, 1956 also see website at Id., Akande pg 335 Also see Article 103 of the UN Charter 1945, it provides “In the event of a conflict between ultra vires ., Geata page 315 In contrast, Professor Gaeta Professor In contrast, 445 Both scholars agree that Security Council ion 1593 created an explicit international anexplicit 1593created ion Council Security agree that scholars Both ipso facto 451 .” under the present Charter and their obligations under any other international agreement, their obligationsinternational under the presentother Charter shallany prevail. under obligations their and Charter present the under In ofthe eventconflict a between theobligations Members ofthe of United the Nations 450 which in her views places a mandatory viewsmandatory not whichin places a anelectiveon her duty and ICC the to Her reason is that “[....]this request is patently at odds with Article 98(1) of the an obligation on Sudan per Article 25 of the United Nations Charter to Charter Unitedthe Article Nations Sudan 25of per anobligation on 449 argues that the request to states parties to arrest and arrest to parties states to request the that argues 81 448 447 444 Akande also observes that observes also Akande This membership is seen membership This 446 And that And CEU eTD Collection arrest and surrender of an international court.” and international of surrender an arrest for to]comply a request with it simplybecause [wants immunities, these can lawfully disregard immunities by protected personal individual arrestand an surrender to by requested court that which isexpressly a state court, by issued international an warrant arrest an of on basis that the individuals[...]” some to accruing immunities international respect viewsit as being “one thing tosay aninternationalthat criminal is court duty not bound to immunities not extenddoes toindividual from States whom cooperation has been sought.” “powersthe derogate customary conferredupon an international to international court on rule that view, her is It sought. been has cooperation whose states the with rather but court the with lies not in view, itself,her which, warrant execution tothe of relates the she reiterated, challenge, of Sudan. incumbent head of state the AlBashir Omar of as theimmunities concerning not contain verb she arguesdo the “may,” 458 457 456 455 454 Statute”. ICC ofthe versions Spanish and French by the dissipated 453 :::’. ode asistencia entrega demande de remise ou d’assistance:::’and theSpanishtext provides: curso no ‘LaCorte solicitud dara¤ de a una 452 French the on relies She obtained. been has immunity of waiver a unless immunity to is entitled and party state non a of national is a indictee circulating the Arrest Warrant in notissue did Warrant Arrest the circulating incumbentfor headsof state.” against theimmunity warrant AlBashirrecognizing international from violate rules would arrest other enforcesthe Articlesubmitthan Sudan that “any state withto that 98(1)to court respect Id.,., ., Id., Id.,., pg 320 Id.,., Id.,., pg 316 Gaeta states that “the ambiguities that a non-native English speakermay find inuse of the modal verb ‘may’ are page 328The French Id., text she quoted‘La read:Courpeutne poursuivre l’execution d’une demande d’une 454 She, however, concedes that the ICC’s act of issuing and 453 452 but instead impose butinstead a mandatory obligation on the 458 and Spanish versions of which,andversions of Statute, SpanishRome the 82 perse violate the rules of international law international of rules the violate 457 but quite another “to assert 455 456 The She CEU eTD Collection CarstenStahn Goranand Sluiter. Martinus Nijhoff Publishers. Also see asimilar argument put forward by Cryerin 459 we shouldaddress by openingthe created Article provisionsfundamentally, of enabling the 13(b).Thusand firstly, from Article 39,41and The 42of is UNCharter. the being ICC only of by virtue madeuseof and empirical examination of underlyingthe rationale underpinning UN-ICCrelationship. the some conceptual withoutgo cannot court with the cooperate partiesto of ICC states obligation the and referral the surrounding debate overall myview, validity. the be In of to greater appears from both from start the Akande’s side andthatof Gaeta’s, although Akande’s arguments tribunals hadbecome costly, attimes and wasteful— given their temporal natures. specific newsituation mandates —as creation andsecurity ICC inits international keeping peace from construction the stage of ICC,theUNthe in hadaninterest using the wouldbe instruments a referral from is UN the Council.Security widely It agreed andbelieved, right that its indraft timeconsidering atthe of especially the ICC sowould and futile practically and/or conceived? hoc create this to concept the essentially or council of the part the on Was anerror this tribunals. newcreate not and ICC, use the to recommendation Commission’s ahead go with the to elected address knowing too well the inherent withina UNSecurity triggers ChapterVII of an Council ‘ordinary’ the treaty-basedUN court, limitation of a treaty-based regime. Thereafter, we should then Foreword by Adriaan Bos, Emerging The Practice of International The Criminal Court,(2009) 13 (ed) Edited by interdependence between the ICC and UN peace and security was ill- ICCpeaceandsecurity mandate a notion betweenthe interdependence and UN The on debate levelthis is healthy,but some fundamental considerations seem missing Such Security Such Security Council decisions in notemanategenerally do from but Rome the Statute I want to believe that the Security would not take a measure that it knows is measureit knows a Security conceptually I wanttobelievethat the nottake would that empirically, conceptually why, (in the face of the apparent limitation) the UN Security still Council UNSecurity the limitation) apparent face of the (in the why, the object underlying the inclusion of a mandate as important as ofamandate asimportant inclusion objectunderlying the the 83 459 This desire permanent ad CEU eTD Collection Charter, it suffices that the Resolution sufficiently brought Sudan Sudan assumedunder brought ICC’s itsufficessufficiently Resolution thatthe Charter, and with assistance.” necessary [Court Prosecutor] any the languageSudan to with “cooperating respect andfully” with providing Prosecutor, Court the the mandatory 2,clearly operativeuses finding. paragraphs toits present or Its of resolution this international andsecurity.” peace athreatto constitute[d] inDarfur “situation the that UNCharter of the VII Chapter under a determination upon be secure. cannot from in legalforce,and state lacking inconcerned one cooperation the inherently which Overall itforfutile theICC spend be investigating would to resources a referral is UN which bein acceptedby would Article alsonot ICCgiven the the stipulated 13(b). conditions would not only be of lesser legal weight necessary compelto compliance nonof state parties but VII Chapter outside decisions that without especially concrete objective, not actions are VII Council 461 etc. (a) 460 to coversituation ICTY Rwanda extend to which attempt the see flopped. this On extendable. easily not ad-hoc are as mandates their wastage and time specific and situation are tribunals effectiveness and cost to relate shift this for reasons tribunals; of ah-doc creation 195–222. Both argue that the purpose of inclusionthe of a UN Security Council referral was to minimize the “ Article 13 (b) of the Rome Statute Statute. within theICC of VII UNCharter the under Chapter mandates Council Security UN to relating provisions several of inclusion the to specifically led Darfur would cooperate fully with the Court and Prosecutor, providing them with any necessary assistance.” necessary any with them providing Prosecutor, and Court the with fully cooperate would Darfur 463 States). United China, Brazil, (Algeria, 462 measures. other through and through both offorce use so, do the to means the with authorizing Council Security the providing and occurred, has of aggression act an Sudan,Resolution 1593, and International Criminal Justice See Article Referral, 13(b) deferral 16, funding Article 116, lack of cooperation from a referral article 87 (5) See Para 2 “[...]the Council decided also that the Government of the Sudan and all other parties to the conflict in conflict tothe parties other all and Sudan of the Government the that also decided Council 2 “[...]the Para See See Para 1 of UN Security Council Res. 1593, adopted by a vote of 11 in favour, none against with 4 abstentions See U.N. Charter arts. 39-51 allows the Security Council to take action when peace is threatened or breached or breached or threatened is peace when action to take Council Security the allows 39-51 arts. Charter U.N. Thus, Resolution 1593 of Thus,ICC wasreferredin of that made Resolution Darfur situation 1593 the 2005 to only to Chapter VII powers and not any other? The consistent reference to UN Chapter UN to reference consistent The other? any not and powers VII Chapter to expressly refers expressly 84 ” Leiden Journal of International Law, 19(2006), pp. and confines referrals from and referralsfrom UNSecurity the confines 462 463 There is no question to the legality the to question no is There By virtue of Article 25 of the UN 460 It is precisely the reason why 461 CEU eTD Collection 469 vol.1325,1990, p. 29. 660, August 2, 1990, measures); other through through both so, and do to offorce use means the the with authorizing Council Security the providing and occurred, has of aggression act an or 468 467 thirdthe states as a referral pursuant to the UN Charter and Article 13 (b) would. 466 ICC statute. Compare withthis areferral pursuant toan ad hoc agreement. situation. The Council has to deal withsubsequent non-cooperation and this dealing is outside the framework of the provision expressly implies that the UN Security Council’s job ormandate does not simply stop atreferring a where the Security Council referred thematter to the Court, 465 decisions of the Security Council ::: .’ 464 Security Council could activate using its Chapter VII authority without the need toset upanother that “[o]ne of the envisioned functions of the ICC was threat. particular to act as a permanent tribunalto maintaining international measurepeace andsecurity,elects what takewhen it to a addresses that the party. ofaState intheterritory a whocrime commits states of nationals third of example, prosecution the ICC as if it to assistance inandcooperation particular providing situation to actwithwere tothat thirdregard state a state partyState that is notparty to the Rome Statute party to the treaty buttoit has the legal force compelto a the Statute. statutory mechanismstrigger and Gaeta as Buzzard seem argue.to Areferral make not does a This cannot be said of otherRome statute is very clear on this point. triggers, forwith it but rather the UN Security Councilbut pursuant the UN to theCharter. UN Charter. EvenArticle where jurisdiction.87 (5) (a) thereof the is a refusal of cooperation, it is not for the ICC to deal judicial structures. judicial See See Article 87 (5), (b), provides that “ [w]here aState not party to this Statute, [...]fails to cooperate with the court]... the out carry and accept to agree Nations United ofthe ‘Members that provides Charter of the 25 Article See e.g See ICTRthe UN SC.Res. 827of 1993 and the ICTY UN SC, Res 955 1990 Article 12 (2) (b) and Article 14 is not accompanied by legal force capable of compelling cooperation from 466 UN. Charter articles 39-51 allows the Security Council to take action when peace is threatened or breached or threatened is peace when action take to Council Security the allows 39-51 articles Charter UN. Thus such ameasure be cannot said carry to a legal significance equal ICC other to This is particularly so, because the UN Security Council in fulfilmentthe of its mandate . Kuwait invasion. 464 Itshouldbe remembered thatthis referral notfrom originate does ICCStatute the 467 International Legal Materials 469 In the past, the Council has employed both the use of force, useof the both employed has theCouncil Inthepast, Buzzard who argues against execution of ICC arrest warrant instates fact warrant arrest ICC of execution argues against Buzzardwho Security ResolutionCouncil 660,August 2, 1990, 465 , vol.1325, 1990,p. 29. 85 See e.g See the Court may so inform, . Kuwait invasion. International Legal Materials Security Council Resolution the Security Council 468 and the use of .” This , CEU eTD Collection not require that those states finance the ICC’s investigation or the prosecution that arose. that prosecution the or investigation ICC’s the finance states those that require not 476 Parties.” States of Assembly by the adopted criteria relevant with accordance contributions from Governments, international organizations, individuals, corporations and otherentities, in essentially so, if the ICC is to avoid cases of having money influence the court’s actions. independence andintegrity fundingwhen isnot tiedany to of itsmechanisms; trigger is this its preserve better can organ judicial criminal ICCas independent the an is neededthat reminder particular in relation to the expenses the to relation in particular States Parties;” (b) “[f]unds provided by the United Nations, subject to the approval of the General Assembly,respectively in funding that for operationthe of court arethe obtained through (a)“[a]ssessed contributions by made 475 ...” Nations, United by the 474 beborne shall referral, the with connection in prosecutions and investigations 473 472 for a incurred.”“expense to inrelations across as funding comes determinant of the proprietya forfunding isnot is ICC. tothe UNSecurity Council referrals apre-condition Besides, of a UN Chapter this funding Articlein 115that of text the languageof nothing suggest by referrals Security,” the VII mandate. In addition, the reference to UN 471 470 expenses the in to relation in particular Assembly, General the of approval the Whileproper. is mention made in Articleto funding 115 (b) by Nations, “United the subject to withheldfunding support to the ICC in its investigation, was with ICTY and ICTR. enabling legal permitted. provisions where as it in especially hasof Sudan situation done the use a structure, treaty-based choice to ad hoc tribunal such as the ICTY or ICTR.” Also it is noteworthy noting that self-referrals by states parties, (orby statesthird through Unfortunately, this is the same language the Resolution employs, it bars later claims, see para7. claims, later bars it employs, Resolution the language same isthe this Unfortunately, Lucas Buzzard loc.,cit., fn 432at 939 See See See ForICC funding see, Article 115 (b), 115(b) Article Article and 116, of Romethe Statute, providing Para 7 “none of the expenses incurred in connection with the referrals including expense related to related expense including referrals the with connection in incurred expenses ofthe 7“none Para ICTRthe UN SC.Res. 827of 1993 and the ICTY UN SC, Res 955 1990 Article 13 (b) of the Rome Statute pre-referral financing One may argue that since the UN Security One theSecurity Council specifically argue that since the referral may during UN 472 although arise. claim may later a funding The actions in various situations do not have to be identical. to have not do situations various in actions The incurred 471 due to It may also choose to create new tribunals, as the case 470 referrals by the Security 86 Thus, there is nothing awkward in the council’s in the awkward nothing is there Thus, 473 it was not a UN Chapter VII mandate 474 Meaning,there isno requirement Council. ,” and (c),” andthroughvoluntary 475 But importantly, a ad hoc incurred agreements) do 476 due to CEU eTD Collection words, Sudan can not base its refusal to cooperate on international law. Further, the ICC is not is ICC the Further, law. international on cooperate to refusal its base not can Sudan words, overrides internationalimmunity dutiesincluding mayother claim. want Sudan that to other In and fullylightAndSudan isICC.Article cooperate of 103,thisduty assist to in obliged the valid UN Charter VII power stemming from referral. In light of inon went immunity in paragraph 6 torecognize the existence of Article 98. accorded Article 25 of the UN Charter, contrasts, no mention is made of Article 27 which contains a “core principle” of the statute, yet it Andin proceed Office the prosecutor. with referral the the of it provision to enablingto fact the reference to Article 16 and Article 98 of the Rome Statute without a heed to 13 (b) which is in this provision definitely arouses skepticism.Further in resolution the its paragraph makes6 insteadinvestigation,but the exclusive to jurisdiction of contributing states. Sudan that was not aparty to the Rome Statute would not be subject to the ICC’sthe jurisdiction outside and state contributing a from personnel or officials former or current and nationals those this isnot say to Resolution isflaws.1593 without TheResolution, for example, stipulated that stage thequestionthat immunity hasof arisen cooperating.and Sudanisnot Then investigation was an to in Article 98-2 of the Rome Statute.” then, not of immunity question followwas with on the resolution a definitive 480 479 ofthe referral targets werethe the politicalthat leadership suggest clearly otherwise would entitledreference a to such immunity.since compromised as portrayed been have would resolution contained such an express reference to the immunity question, the impartiality of the ICC investigationfinding a basis) would have been strategically unwise, ifnot placed the investigation injeopardy. Infact, hadthe 478 477 have. itshould immunity whereas of address question the See para 4 of UN Security Council res. 1593 whichstates, “ earlier. cited Sherif and Williams Akande, Buzzard, Gaeta, See Supra See Para 2 of Resolution 1593. 2ofResolution Para See Supra To askthisof Security the stageat the Council of (requiring a referral ICC toinvestigate, prosecuteand upon not If the validity of If thevalidity holdof Resolution the it is to then 1593 stands, would beright that there a The other argument scholars make is that the UN in its Resolution 1593 didnot explicitly of the of case against President Al Bashir but of Al Presidentbut of against Bashir the 87 Taking note 477 situation The time for the Security Council to of the existence of agreements referred ofagreements existence ofthe inDarfur, However, Sudan. 479 478 The inclusion of but rather now, rather but 480 CEU eTD Collection its assumed jurisdiction. Specifically, whether in the absence of Al Bashir presence in court, trial on whether, without the States parties its jurisdiction. in of ICC the exercise pillarsthe of performingenforcement their part of the treaty, ICC ofcan still exerciseimmunityissued arrest warrants in regard. The remaining limb of the question thus, is whether this removal protects lawfully and have overjurisdiction Sudan assumed has effectively ICC Buzzard concedethat and Gaeta Even removed. been ICC effectively has Sudan of immunity sovereign The Charter. the of States Partiesterritory of Sudan without Sudan’s consent but byforce of the UN Charter pursuant toArticle 25 thatnot party.iswhich has itforeign Thisorder exercise inside judicial allowed the of a power the are underto do what it would not have done. Thata is to treatycooperate fullywere not tempered with or leftandintact by assistthe referral. Impliedly not, a the referraltreaty-based has ordered Sudan regimeobligation to join Akande is answering in negative.the to act as in answer I negative. the in Ssenyongo Akande and and affirmative. the Buzzardanswer Gaeta the ICC toseeka waiver immunity of from inSudan seek order Al to Bashir’s andarrest surrender. with in previousthe section of would this work, beg an enquiry on whether there is a need for Sudan is a and thespecific obligations laidin downinArticle 87subject Article this case to 98 given that flowing from the ICC Statute. Directly to ICC State Parties are the general treaty obligation of 86 UNCharter. the in with with to bedealtaccordance lack the Security backCouncil of tothe Article 87(5refer shall incooperation with accordance deal going to with Sudan’s lackingof within cooperation theof framework but Romethe Statute, In my view, the above it depends on whether, the immunity of Sudan and theirs national In the circumstance, the obligations thatflow from the UN Charter is different from those third state (a state not party to the ICC Statute). The question of Article 98 as dealt 88 Practically , this would, this depend CEU eTD Collection surrendering Al Bashir to the ICC, I have made my position clear in the previous subchapter. A subchapter. inmade clearprevious the ICC,Ihavemy the position Al to surrendering Bashir 98. underArticle determination the of compliance call forisdependenton and not does not warrant in issuanceofthe 4.1.3,the I argued Chapter Warrantshould issueshould resolution besubject tothe of a question from arising Article 98.As Arrest an not or whether of determination the that statute the under requirement no is There 58. Article madeto decision AlBashirthe WarrantArrest wasdecidedon an pursuant application first; because omission an necessarily not was decision Warrant Arrest Bashir’s in Al analysis not considering Article 98when issuing Al warrant.IthinkBashir’s leavingArticle out 98 consultshould court. state the concerned the that Article 97provides that receives a request from the court finds that it cannot for some reason act on the request, judicial pillar between the collaboration back-and-forth for is mechanism fledged statute a fully as the referral done so. In this view, ICC States parties would be in no breach. Builtinto the ICC immunity is required of the ICC”. In the case of Sudan, the ICC did not require to seek a waivermade innot for ICC inthename but the awaiverof unless “cooperation of country arresting the The arrest court. international pillar of an as an enforcement act they would that accepted having merely are and surrender for arrest request to in relations laws domestic parties myviewICCState In lawimmunities. international of andthus abreach theother over state one subjectinghim to their domestic regimes sohas totantamount tothe exercise of a coercive act of one has to look at whether in arresting Al Bashirin pursuance to the ICC statute, states would be 481 bars in trial statute sinceICC is in negative answerthe The can proceed. See Article 97 of the Rome Statute. Rome of 97 the SeeArticle Regarding the question about whether Article 98 prevents State whether ArticleRegarding question Partiesabout the 98preventsState and from arresting in was negligent court the view that of the was substantially, I agree whom Akande with (the ICC) and the statute’s pillar enforcement 89 (the State Parties). If a State Party 481 absentia . enabling Conceptually statute’s laws , CEU eTD Collection enforcement, the function of the judicial branch becomes severely limited, if not paralyzed. if not limited, severely becomes branch judicial the of function the enforcement, Without pillar. Parties enforcement asthe State to the does asit asajudicial structure court the it(although is unlikely hewill).that Lastly,itbeshould notedthat applies the statute as much to he voluntarily surrendered tothe ICC,as Dafurianthe rebel Bahr Gardaexemplified in 2008, having jurisdiction from cooperating with ICC.the Likewise, Al Bashir would breach lawno if is butthere practical parties preventingchallenges, ICCstate andotherstates nolegalhindrance his trial depends on his before the ICC. presence Taking custody him of poses a numberof inany implicated national Sudanese Darfurthe exist. atrocities doesnot implied Instead inimmunityNothing that. in the referral is forsuggest viewthat referral the the summary of this position. Itdepends on whether the referral has leftAl Bashir’s immunity intact. My conclusion is that Al Bashir’s arrest and surrender to the ICC remain a challenge, yet 90 CEU eTD Collection individual facetindividual iswithout of which cannot anindispensable statehood exist. a state the that accept must law international importance, this regains individual’ ‘the as Thus family. humansecureits premise ideallyto humanvalues, the of greater wellbeing original the was on and discussedin this workshow althoughthat international law developed along side statehood, for in accountability suchviolations a speedy and fair scholarships manner. Numerous reviewed immunity, balanceofmust the scale tilt the toprotection towards human of andrights securing and crimes rights human between obligation competing any is there whenever that norms to respect with be drawn to has exception A clear hope. empty an than more nothing is crimes of grave leaders accused their prosecute own will legal domesticapparatuses that hope own regimes. In regard, this upholdingtherefore, notionthe jurisdictionalof immunity,in the states that practice abuse inclusive war of crimesgenocide, torture, andcrimes against humanity. regimes and Oppressive as of policy are not preparedstruggleimpunity against forhuman gross rights violations and crimes of international law to adjudicate the shortcomings terms. absolute in of impunity theirreject to claims international the consistently justice. Yet to be willnever brought perpetrators the that and benever redressed will suffered have they wrongs the that sense the with left be may rights human of violations many of the gains madesuccessfully on with recurringpaper obstacles such as immunities deal to of lessstatesfailure officials,the of cautious is which but could level, pragmatic. make international the on rights human of protection Even worse, those who have suffered gross 5.1 AWay Forward andConclusion CHAPTER 5: GENERAL RECOMMENDATIONS AND CONCLUSION RECOMMENDATIONS 5: GENERAL CHAPTER As established in Chapter 1,andinAs established 2,criminal isChapter repression thelast for the combat-ground War in made sinceWorld II many gains the havebeen thatthere recognizes The research 91 jus cogens CEU eTD Collection demonstrated indemonstrated DRC the Congo side an equally strong state practice.within arepromising butscholars and mustpractitioners help build stronger A weak state practice potentials As ICC,the the of is legal desired. international thinking reflective of current the and strong ofthelawon state current on the Jurisdiction under preparation by ILC.the And as observed 3and inChapter 4, ICJ the viewpoint OfficialsForeign Criminal from Immunity reconsideredU.N Convention inthedraftState of on insistence the justify to remote be too may immunities official and relations inter-state of stability between on the immunitylinkage noisplace hide. drawing human violators current to ILC Thus,the the majorrights at the procedural immunity but inrather utilizing normativeexpense existing in framework a manner that leaves of victims of abuse. This view should thus be embarrassment and politically motivated Security measures. Council Security motivated and politically embarrassment since funding such referrals leftare tothe ICC and not the UN. This would save ICC from future which,in decline ICCshould the theany future totake from Council referrals UNSecurity the inCouncil must accept abide future the to by financeArticle 115(b) to its referrals. Absentof status of UN Security Council within referrals ICCframework.In the addition Security the and legalnature clarify furtherthe to member and states; from all UN cooperation and requiring leadtake fresh in byadopting addressing ofAl this, immunityresolution a question the Bashir’s andsurrender arrest all from indictees arising Darfurthe situation. TheSecurity should Council Security Council 1593 of Resolution 2005 referredsituation that that in Darfur ICC; tothe to triggeredby UNCharter Articlethe Sudan its 25and103of obligation that honours under I do suggest therefore, that the solutions to inter-state chaos lies not with absolute not chaos lies inter-state solutions to the that therefore, suggest do I Finally in as allChapter IV, resolved measures must atdisposal beensureemployed to v. Belgium yieldingrisk unfavourable decisions. immunity does breeds does 92 impunity . Thus a position that is truly opinion jurist opinion juris asalready along CEU eTD Collection and Comparative Law Quarterly Bantekas, Ilias. 2005.The Iraqi forCrimesSpecial Tribunal Against Humanity, 54 Contemporary Problems Balint,Law The Placeof 59 inAddressingInternal Jennifer.Regime 1996. Conflicts, Arendt, Hannah.Arendt, 2003. Arendt, Hannah.Arendt, 1973. Arendt, Hannah.Arendt, 1958. Cambridge University Press. 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