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IMMUNITIES AND AMNESTIES. Dr . Maja Munivrana Vajda ICL, 2013/2014. Article 27 of the RS Irrelevance of official capacity.

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immunities and amnesties

IMMUNITIES AND AMNESTIES

Dr. Maja Munivrana Vajda

ICL, 2013/2014

article 27 of the rs irrelevance of official capacity
Article 27 ofthe RSIrrelevanceofofficialcapacity
  • 1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. 
article 27 of the rs irrelevance of official capacity1
Article 27 ofthe RSIrrelevanceofofficialcapacity
  • 2.   Immunitiesor special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person. 
c ooperation with respect to waiver of immunity and consent to surrender art 98
Cooperation with respect to waiver of immunityand consent to surrender(Art. 98)
  • 1.  The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.
c ooperation with respect to waiver of immunity and consent to surrender art 981
Cooperation with respect to waiver of immunityand consent to surrender(Art. 98)
  • 2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.
icc and hos immunity
ICC and HoS Immunity
  • Omar Al Bashir
  • President of Sudan
  • ICC Arrest Warrants, 2009
  • Sudan refuses to surrender
  • Al Bashir travels within AU
  • 2013 Al Bashir requires visa to attend the UN GA in New York
questions
QUESTIONS
  • Does Al Bashir enjoy immunity? What kind?
  • Is the ICC authorized to request his surrender by African SP?
  • Is the ICC authorized to request his surrender from the US (NSP)?
  • What could be the consequences of non-compliance with the ICC request?
  • Think about the applicable law and trigger mechanism in this case!
icc s view
ICC’s view
  • 12 December 2011 – PTC I - Decisionpursuant to article 87(7) ofthe RS on thefailurebytheRepublicofMalawi to complywiththecooperationrequestissuedbythe court withrespect to thearrestandsurrenderof OHA Al Bashir
  • 18 September 2013 - PTC II - Decision Regarding Omar Al-Bashir's Potential Travel to the United States of America
amnesties
AMNESTIES
  • Not clear whatwillbetheireffect, ifany, beforethe ICC
  • 4 potentialavenues:

1) Interestsofjustice

2) Complementarity

3) Ne bis in idem

4) SC Deferral

1 interests of j ustice
1) InterestsofJustice
  • Does justice require some form of (individual) accountability?
  • Criminal responsibility only?
  • Can peace alone be seen as a form of justice?
2 complementarity
2) Complementarity
  • Amnesty procedure as a form of investigation?
  • What is meant by ‘investigation’?
  • Criminal/individual/mimimum threshold of accountability?
  • Amnesty as indication of unwillingness/inability?
3 ne bis in idem
3) Ne bis in idem
  • Amnesty as eitheracquittal or conviction?
  • Some formofdeterminationofguilt but no individualpunishment?
  • Judicialauthority?
4 sc deferral
4) SC Deferral
  • (temporary) effect to a domestic amnesty
  • Negotiated amnesty v. self-amnesty
  • Amnesties as partofthepeaceprocess