CYIL vol. 13 (2022)

KATARÍNA ŠMIGOVÁ CYIL 13 ȍ2022Ȏ decision in the Arrest Warrant Case, in which it pointed to international customary norms regulating the immunity of the high officials in the case of interstate relations. 3 The aim of the presented article is to examine the possibilities of criminal prosecution of a head of state at the international level, i.e., in relations between states or before an international court. Therefore, the object of this research will not be the prosecution of the head of state before the authorities of their own state; each state has the possibilities of such prosecution regulated directly in its national law, which usually also regulates the relevant question of immunities. 4 The first part of the article therefore deals with the legal institution of immunities as such, the second part with the particular article of the Rome Statute of the International Criminal Court, which regulates the irrelevance of official capacity, and other relevant articles of this founding international treaty. After an examination of an example of the possibility of criminal prosecution of the that time acting Sudanese head of state, the third part focuses on a case study of the current situation and the possibility of criminal prosecution of the head of the Russian Federation, President Vladimir Putin. In this context, at the outset, it is necessary to clarify several different legal institutes, which will not be given special attention in the article. Since 24 February 2022, the world has been looking for solutions and workable reactions to the manifest violation of the fundamental principles of the UN Charter and the unjustified use of armed force by the Russian Federation. Despite President Putin’s arguments about the exercise of the right to self-defence, 5 it is not possible to demonstrate the proportionality or imminent danger of the military operations being carried out against the Russian Federation. 6 The originally announced intention to deal with the genocide against the Russian minority in the eastern parts of Ukraine was no longer a part of the written explanation of the representatives of the Russian Federation before the International Court of Justice. 7 What probably shocks the international community the most is the brutality of the use of force by the Russian armed forces. In this context, it is necessary to distinguish between the application of ius ad bellum and ius in bello standards, as well as between the responsibility of the state and the responsibility of the individual, the comparison of which, however, is not the aim of the analysis of the presented article. The article aims to examine the prosecution of the head of state at the international level, regardless of the non/applicability of ius ad bellum norms or issues related to state responsibility. 3 International Court of Justice, Arrest Warrant of 11 April 2000 ( Democratic Republic of the Congo v. Belgium ), judgment ( Arrest Warrant Case ). 4 As for the Slovak Republic, prosecutability of the president is regulated directly in the Constitution of the Slovak Republic, Art. 107, the first sentence: The President may be prosecuted only for a wilful infringement of the Constitution or for treason. 5 Full text of Putin’s declaration of War on Ukraine, 24 February 2022, available at https://www.spectator.co.uk/ article/full-text-putin-s-declaration-of-war-on-ukraine, last accessed on 8 May 2022. 6 See e.g., commentary of Marko Milanović available at https://www.ejiltalk.org/what-is-russias-legal-justification for-using-force-against-ukraine/, last accessed on 8 May 2022. 7 See Document (with annexes) from the Russian Federation setting out its position regarding the alleged “lack of jurisdiction” of the Court in the case available at https://www.icj-cij.org/public/files/case-related/182/182 20220307-OTH-01-00-EN.pdf, last accessed on 10 May 2022.

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