CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ IS IT POSSIBLE TO PROSECUTE THE HEAD OF STATE? not only the authority of the Court, but also the authority of the UN Security Council. However, in some cases, it does not react more strongly to ignoring its resolutions, and this will probably be the fate of the Court as well, although it will probably have more serious consequences for it. In an ideal case, the UN Security Council would intervene at that time and, with its resolution, would explicitly withdraw the immunity of the Sudanese president, or the Sudanese government or one of the contracting states of the Statute would fulfil its obligations, or states could, through the UN General Assembly, still request the International Court of Justice to issue an advisory opinion. In conclusion, it is also possible to state that although the president has not been prosecuted, the former president may still be. 63 4. Immunities and the Russian president Various possibilities of criminal prosecution of a head of state at the international level can also be established in relation to the criminal prosecution of the President of the Russian Federation. Current academics and representatives of international criminal justice are divided into two basic camps of opinion as to whether the ICC can prosecute a senior official of a non-Contracting State to the Rome Statute in the event of recognition of the Court’s jurisdiction by a third-state. Following the referral of the situation by the parties to the Rome Statute, which has made the initiation of the relevant proceedings procedurally easier (no need for authorisation for investigation like in case when the Prosecutor initiates investigation in proprio motu ), and in connection with information on reasonable belief that crimes within the jurisdiction of the Court had been committed, the ICC prosecutor announced the initiation of an investigation on the territory of Ukraine. 64 This investigation is possible in terms of the Rome Statute despite the fact that Ukraine is not a party to this international treaty, due to the fact that it has recognized the jurisdiction of the ICC in relation to its territory since 20 February 2014. 65 This means that the ICC can investigate war crimes, crimes against humanity, and possible genocide that allegedly have occurred or will occur on the territory of Ukraine. The crime of aggression cannot be included in this category, because none of the states that are in conflict are a party to the Rome Statute, which is a condition for the applicability of the so-called Kampala amendments. 66 Not only lay people, but also the highest representatives of states have declared that President Putin is a war criminal, despite the criminal law principle of presumption of innocence. 67 Keeping in mind the political reasoning of these declarations, there is no doubt 63 The military council that took power after Al Bashir’s ouster said it would not extradite him to The Hague but would prosecute him at the national level. 64 Statement of ICC Prosecutor, Karim A. A. Khan QC, on the Situation in Ukraine: Receipt of Referrals of 39 States Parties and the Opening of an Investigation available at https://www.icc-cpi.int/news/statement-icc prosecutor-karim-aa-khan-qc-situation-ukraine-receipt-referrals-39-states last accessed 31 May 2022. 65 On 8 September 2015, Ukraine lodged a second declaration under Art. 12(3) of the Statute accepting the exercise of jurisdiction of the ICC in relation to alleged crimes committed on its territory from 20 February 2014 onwards, with no end date. The first declaration from 9 April 2014 concerned only Maidan events. 66 Kampala amendments of the Rome Statute of the International Criminal Court were adopted during the Review Conference in Kampala on 11 June 2010, see https://treaties.un.org/doc/Treaties/2010/06/20100611%20 05-56%20PM/CN.651.2010.pdf. 67 See e.g., the statement of the US president Joe Biden available at https://edition.cnn.com/2022/03/16/politics/ biden-calls-putin-a-war-criminal/index.html last accessed 31 May 2022.

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