CYIL vol. 13 (2022)

KATARÍNA ŠMIGOVÁ

CYIL 13 ȍ2022Ȏ

3. Immunities and International Criminal Court The establishment of the International Criminal Court (ICC or the Court) must be distinguished at several levels in the area of responsibility of the high officials, especially in relation to cooperation with states, since not all states are parties to the Rome Statute of the International Criminal Court (Rome Statute). In contrast to the ad hoc tribunals, which were created by the resolutions of the UN Security Council, which, among other things, decided upon the full cooperation of states with the ICTY, including the obligation to comply with requests for cooperation, 28 the preparation of the Rome Statute had to consider the principle according to which the treaty does not create any obligations for a third-state without its consent. 29 The finally adopted version of Article 27 of the Statute explicitly regulates the irrelevance of official status, both in relation to the criminal responsibility of all persons (Article 27(1) of the Rome Statute), as well as in relation to immunities or special procedural rules that may be attached to a person’s official status according to national or international law (Article 27(2) of the Rome Statute). This irrelevance of the official status is also manifested in the fact that it does not in its essence or by its nature constitute a reason for reducing the sentence. 30 Article 27 of the Rome statute regulates the equality of the status of individuals in relation to official status, 31 not as a norm applied as a principle of fair trial, nor as a norm that cancels all procedural peculiarities in relation to official representatives of states. 32 It is thus a standard that emphasizes the equality of all without distinction depending on their status, but not a standard for the protection of basic human rights. 33 According to academic commentaries, the two paragraphs are often confused, although they serve different functions. 34 The first paragraph can be derived from the so-called Nuremberg Charter and from the statutes of the ad hoc tribunals, the second paragraph has no precedent in international law. 35 Unlike the second paragraph, according to which immunity recognized under national or international law and related to relations between states is irrelevant, the first paragraph refers to immunity stated in domestic law, which regulates the status of a person within a state. The first paragraph thus refers to the status of a person within the state, the second part of Article 27 of the Rome statute to the position of the state representative in relations between states. Irrelevance of immunity according to para. 2 is determined by the fact that the parties to the Statute renounce it by accepting it. 36 28 The resolution in question explicitly states the obligation of states to cooperate with the ICTY also in the case of decisions pursuant to Art. 29 of the ICTY Statute, i.e., also in the case of a decision to hand over and transport the accused to the International Criminal Tribunal for the former Yugoslavia. 29 See Art. 34 of the Vienna Convention on the Law of Treaties. 30 It is more of an aggravating than a mitigating circumstance. See also ICTR, Prosecutor v. Kambanda , 97-23-S, Chamber judgment, 4 September 1998, para. 44. 31 This is an official position both de jure and de facto . See also ICTY, Prosecutor v. Karadžić et al ., 95-5/18, Decision on Deferral Proposal, Chamber, 16 May 1995, para. 24. 32 ICC, Prosecutor v . Kenyatta, ICC-01/09-02/11, Decision on Defence Request for Conditional Excusal from Continuous Presence at Trial, Trial Chamber, 18 October 2013, paras. 112–115. 33 These are taken into account within the framework of the Statute in Art. 21 of the Statute. 34 SCHABAS, W. A., The International Criminal Court: A Commentary on the Rome Statute , 2nd ed. Oxford University Press, 2016, p. 596. 35 Ibid . 36 Ibid ., p. 600.

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