CYIL vol. 10 (2019)

HANNA KUCZYŃSKA – KAROLINA WIERCZYŃSKA CYIL 10 ȍ2019Ȏ such immunity is interpreted broadly, as it refers to the judicial process, commencement of prosecution, and arrests, detentions or extraditions of the person(s) concerned. The International Court of Justice (ICJ) in the Arrest Warrant Case concluded that “immunity and that inviolability protect the individual concerned against any act of authority of another State which would hinder him or her in the performance of his or her duties.” 9 It is generally accepted that Heads of State enjoy immunities while abroad, regardless whether or not their visit is official, and that such immunities do not mean that Heads of State enjoy absolute impunity with respect to crimes they committed. 10 In certain circumstances Heads of States can be prosecuted regardless of their immunities in international law. As noted by the ICJ, they can be prosecuted by their domestic courts, the state they represent could waive their immunity, or they may cease to hold their office and no longer enjoy the immunities connected therewith, and finally they can be prosecuted by one of the international criminal tribunals. 11 So far the existing Statutes of international criminal tribunals, including the International Military Tribunal (Art. 7), 12 the International Criminal Tribunal for former Yugoslavia (Art. 7(2)) 13 and the International Criminal Tribunal for Rwanda (Art. 6(2)) 14 have contained provisions referring solely to the irrelevance of an official position, which shall not relieve a person of criminal responsibility nor mitigate his/her punishment. This however was only an introduction to the later recognition that immunity cannot be an obstacle to the prosecution of the perpetrator of grave crimes under international law. It was only the Statute of the ICC which stated expressly in Art. 27 (2) that “immunities (…) whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.” 15 This was the first international instrument directly referring to immunities in the context of international prosecution for committed crimes, confirming the status of international customary law in that Head of State immunity could not stand in the way of their prosecution before an international court for international crimes. 16 3. The obligations of non-State Parties to the ICC Statute in the context of the SC resolution Situation of Sudan (Darfur) in the ICC According to Article 13(b) of the ICC Statute, the SC may refer to the ICC a “situation in which one or more crimes within the jurisdiction of the Court appear to have been committed” under Chapter VII of the UN Charter. As a result of issuing such a SC resolution, the Court gains powers to extend its jurisdiction to crimes which were committed outside while immunity ratione materiae refers solely to the acts performed in their official capacity, see O’KEEFE, R. International Criminal Law , OUP: 2015, p. 412, et seq.; CRYER, R., FRIMAN, H., ROBINSON, D., WILMSHURST, E., An Introduction to International Criminal Law and Procedure , 2 ed., CUP: 2010, p. 533 et seq.; BIANCHI, A., Immunity versus Human Rights: The Pinochet Case, 10 EJIL 237(1999), p. 254 et seq. 9 ICJ, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, p. 3, par. 54. 10 ICJ, Arrest Warrant, ibidem, par. 60. 11 ICJ, Arrest Warrant, ibidem, par. 61. 12 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal, 82 UNTS 279. 13 Statute of the ICTY: http://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf. 14 Statute of the ICTR: http://legal.un.org/avl/pdf/ha/ictr_EF.pdf. 15 Supra note 1. 16 This was later confirmed in 2002 in already-cited judgement of ICJ, see Arrest warrant, supra note 9.

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