CYIL vol. 12 (2021)

Katarína ŠmigovÁ

CYIL 12 (2021)

3.3 Irrelevance of Official Capacity The fact that a person who committed an act which constitutes a crime under international law, acted as Head of State or responsible government official, does not relieve him from responsibility under international law. The third Nuremberg principle formulated by the Commission is based on art. 7 of the Charter. The Tribunal clearly stated that the principle of international law, which under certain circumstances protects State’s representatives, cannot be applied to conduct which is internationally recognized as criminal. 52 The aim of this approach was to prevent the authors of these acts from hiding behind their official position in order to escape punishment. 53 This approach was also upheld in the Rome Statute in art. 27 para. 1. Nevertheless, although a principle of irrelevance of official capacity is still acceptable in general, one has to keep in mind that the Rome Statute is: first, an international treaty and cannot create legal duties upon third states, and second, the fact that an official is criminally responsible does not automatically mean that they are prosecutable since there might be a procedural bar to prosecution by the ICC which is dealt with partially in art. 27 para. 2. The current state of lex lata points out that in a situation involving a State representative, it is necessary to distinguish whether immunity ratione personae or immunity ratione materiae is under consideration, i.e. whether it is immunity of a person as such (e.g. immunity of a head of State) which is exempt from jurisdiction for all the acts during the function, or material immunity, i.e. immunity that actually means non-suability, and therefore non- examination of the conduct of a State representative, that is applicable even after the end of a function (and that is similar to the act of state doctrine in common law countries). 54 Although this distinction is applicable in a situation involving national jurisdiction and should not be applicable in cases of certain international courts, 55 the ICC was established by an international treaty 56 and thus, understandingly, its Statute had to point out the necessity of cooperation with respect to the waiver of immunity which is emphasized by art. 98 of the Rome Statute. The question of immunity of top officials of non-state parties was highly discussed in the case of Al-Bashir. 57 There have been 2 arrest warrants issued by the ICC pre-trial chambers that used different reasoning to establish the ICC’s jurisdiction. 58 Because 52 Nuremberg Judgment, see supra note 2, para. 447. 53 Ibid . 54 ŠTURMA, P., CHOVANCOVA, K., SMIGOVA, K., VĚTROVSKÝ, J., Immunities of States and their Officials in Contemporary International Law , RW&W Science & New Media, 2017, pp. 24–26. 55 International Court of Justice, Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) , Judgment, 14 February 2002, I.C.J. Reports 2002, para. 61. 56 Unlike ad hoc tribunals that were established by the UN Security Council acting under Chapter VII of the UN Charter and thus empowered not to apply immunities of High officials (art. 7 para. 2 of the ICTY Statute and art. 6 para. 2 of the ICTR Statute) and to require full State cooperation (see art. 29 of the ICTY Statute and art. 28 of the ICTR Statute). 57 See e. g. GAETA, P., Does President Al-Bashir Enjoy Immunity From Arrest?, in Journal of International Criminal Justice , 2009, vol. 7, p. 315 et seq., AKANDE, D., The Legal Nature of Security Council Referrals to the ICC and its Impact on Al-Bashir’s Immunities, in Journal of International Criminal Justice , 2009, vol. 7, p. 333 et seq., PAPILLON, S., Has the United Nations Security Council Implicitly Removed Al Bashir’s Immunity?, in International Criminal Law Review , 2010, vol. 10, p. 275 et seq. 58 The first arrest warrant for Al-Bashir was issued on 4 March 2009, the second one on 12 July 2010. For deeper insight upon inconsistency of their reasonings see e. g. Akande, D., The Immunity of Heads of States of

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