The Frog that Wanted to Be an Ox: The ICC’s Approach to Immunities and Cooperation
Forthcoming in C. Stahn, The Law and Practice of the International Criminal Court (OUP, 2015)
22 Pages Posted: 18 Nov 2014
Date Written: November 16, 2014
This Chapter addresses the question of the obligations of States to cooperate with the International Criminal Court in relation to the execution of arrest warrants. More particularly, the chapter discusses the difficult case, that of the obligation of States to cooperate in relation to arrest warrants issued against nationals of non-State parties who might be said to benefit from diplomatic immunity, as recognised by Article 98 of the Rome Statute.
The chapter takes issue with the current approach adopted by International Criminal Law practice as relying unconvincingly either on customary international law or the powers of the United Nations Security Council, and tries to untangle two very distinct questions which are often confused: 1) whether the ICC can exercise jurisdiction against nationals of non-State parties that might benefit from immunities and 2) whether State parties are under an obligation to arrest and surrender them to the Court.
Ultimately, the chapter argues that the ICC has lost sight of its jurisdictional limitations when trying to claim that immunities are generally irrelevant, therefore resembling the Frog that wanted to be an ox, which exploded prematurely before seeing if it had succeeded.
Keywords: immunities, international criminal court, customary law, UNSC
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