CYIL 2012

PETRA BAUMRUK CYIL 3 ȍ2012Ȏ immunities enjoyed by state officials, where it is not in the competence of a national court to do so. They are not granted the same scope of jurisdiction as the ICC. Secondly, Article 27(2) of the ICC Statute states clearly that “immunities [...] shall not bar the Court from exercising its jurisdiction over such ” and therefore the court may legitimately, when serious crimes under international law have been committed by state representatives which enjoy immunities, disrespect these immunities according to the words “…shall not bar the Court…” of Article 27(2). Thirdly, the jurisdiction of the ICC is not hindered by the fact that Sudan is not a party to the ICC Statute. Article 27(2) also applies to nationals of states that are not a party to the ICC Statute for the very reason that this provision simply restates an existing principle of customary international law that includes the irrelevance of the rules on personal immunities (national and international) for the exercise of jurisdiction by any international criminal court. Therefore, according to the observations made above, the ICC has not violated the rules on personal immunities enjoyed by an incumbent head of state, Omar Al Bashir, by issuing an international arrest warrant against him. In the ICTY case of Radovan Karadzic, the president of the Serbian Republic of Bosnia-Herzegovina, who was charged for genocide and crimes against humanity, it was argued that under an alleged agreement with the United States envoy Richard Holbrooke, Karadzic was promised immunity from prosecution if he retired from public life. 65 The ICTY noted in this respect that it was “well established that any immunity agreement in respect of an accused indicted for genocide, war crimes and/ or crimes against humanity before an international tribunal would be invalid under international law”. 66 3. CONCLUSIONS From the above mentioned cases concerning international law on immunities accorded to high-ranking state officials, one can conclude that there is constant conflict between reducing impunity and respecting immunity while gradually the development moves more in favour of the former. As practice of national and international courts and international tribunals has shown, high-ranking officials can now no longer shield themselves behind immunities when their crimes rise to the level of jus cogens , which places upon all member states of the international community the obligatio erga omnes not to grant impunity to the violators of such crimes. 65 ICTY case concerning the Prosecutor v Karadzic and Mladic, Decision on accused’s second motion for inspection and disclosure: immunity issue, IT-95-5/18-PT, 17 December 2008 , retrieved from: http:// www.icty.org/x/cases/karadzic/tdec/en/081217.pdf, (Karadzic case). 66 Karadzic case , para 25. See further in the case of Tihomir Blaskic, a former commander of the Croatian Defense Council, the ICTY recognized functional immunity as a “well-established rule of customary international law”, with the exception that those responsible for “war crimes, crimes against humanity and genocide…cannot invoke immunity from national or international jurisdiction even if they perpetrated such crimes while acting in their official capacity”.

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