CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ IS IT POSSIBLE TO PROSECUTE THE HEAD OF STATE? Sudan). Some academics are of the opinion that this would be possible only in case of explicit withdrawal of immunities by the UN Security Council. However, it is possible to disagree with this opinion by pointing out that it would prejudge the case, and first, the UN Security Council is only referring a general situation, not a specific case, and second, it would be contrary to the presumption of innocence. 5. Conclusion Despite a manifest violation of fundamental principles of the UN Charter by the Russian Federation, from the international law point of view, it is important to distinguish responsibility of a state from international criminal responsibility of an individual. Moreover, one must differentiate the criminal responsibility of an individual from their criminal prosecutability, especially in case of high representatives of a state since the head of state, prime minister, and minister of foreign affairs enjoy full immunity while in office. The presented article has examined the content of the legal institute of immunities from the current international law perspective and pointed out that based on the behaviour and opinion iuris of states analysed by the International Court of Justice, there are limited legal possibilities allowing high officials to be criminally prosecuted if a represented state does not withdraw immunities of its high representative, there is namely the possibility of prosecution after termination of the office or before international judicial bodies under specific conditions. It is submitted that these conditions have proved to depend on the content of the founding treaty of a particular international court and on the way by which it was adopted. The best examples of comparison are the Milosevic case that was tried by the International Tribunal for ex-Yugoslavia and the Al-Bashir case tried by the ICC. Both were analysed to point out that the Milosevic case was tried by a court established by the UN Security Council acting on the basis of the Chapter VII of the UN Charter, i.e., it created a court that all the states were obliged to cooperate with. Moreover, its statute regulated irrelevance of official status. Although the Rome Statute of the International Criminal Court has adopted alike norm, it is an international treaty that is bound only for state parties. Since Sudan is not a party to the Rome Statute, it did not have to accept the ICC jurisdiction. Finally, it was the UN Security Council that referred the situation in Sudan to the ICC and thus triggered the initiation of the investigation of the ICC. Despite several arrest warrants issued by the ICC, there was no cooperation of Sudan nor most state parties to the Rome Statute to get Al Bashir, the Sudanese president, to the Hague. This has been both criticized and acknowledged by academics and politicians. The article explains why the arrest warrant could have been realised even during Al-Bashir presidency, at the same time, it explains why the situation with the Russian head of state is different. Russia, like Sudan, is not a party to the Rome Statute. Nevertheless, unlike in the Sudan case when the referral was realised by the UN Security Council, it was Ukraine that accepted the ICC jurisdiction (see Article 12 of the Rome Statute) and other state parties that referred the situation to the ICC (see Article 13 of the Rome Statute). It means only that the ICC can initiate (and initiated) investigation on the territory of Ukraine because of alleged crimes under international law, however, unlike in case of the UN Security Council referral, it cannot prosecute a head of state that it not a State Party to the Rome Statute and has not accepted the jurisdiction of the Court. Public international law currently in force does not

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