http://www.ejiltalk.org/would-the-addition-of-a-genocide-charge-to-the-bashir-arrest-warrant-change-the-position-on-immunity/ Blog of the European Journal of International Law Thu, 09 Feb 2012 00:55:12 +0000 hourly 1 http://wordpress.org/?v=3.3 http://www.ejiltalk.org/would-the-addition-of-a-genocide-charge-to-the-bashir-arrest-warrant-change-the-position-on-immunity/comment-page-1/#comment-168 GH Wed, 25 Mar 2009 13:54:38 +0000 http://www.ejiltalk.org/?p=765#comment-168 Dapo, you mentioned that article 4 of the Convention 'must be taken as removing any procedural immunities as the availability of any such immunities would be mean that the persons mentioned in Art. IV are not punished'. I very much support such a reading, but par. 60 of the arrest warrant case always makes me a bit sceptical on this issue (immunity not being similar to impunity). Based on this restrictive reading, one could argue that an obligation to punish should be viewed as a separate concept from procedural immunities, hence not contradicting each other. So in case of an incumbent head of State, the Genocide convention might not be taken to entail an obligation to implement an arrest warrant in violation of diplomatic immunity. For the record; I think that the obligation to cooperate with the ICC in itself should be sufficient. States-parties in this regard might be taken as organs of the ICC, pursuing ICC policy in stead of their own. In this sense I don't feel that the interstate immunity would apply, as a distinction between prosecution (by the ICC) and arrest (by States) would be artificial and detrimental to the ICC's aims and functioning. Dapo, you mentioned that article 4 of the Convention ‘must be taken as removing any procedural immunities as the availability of any such immunities would be mean that the persons mentioned in Art. IV are not punished’. I very much support such a reading, but par. 60 of the arrest warrant case always makes me a bit sceptical on this issue (immunity not being similar to impunity). Based on this restrictive reading, one could argue that an obligation to punish should be viewed as a separate concept from procedural immunities, hence not contradicting each other. So in case of an incumbent head of State, the Genocide convention might not be taken to entail an obligation to implement an arrest warrant in violation of diplomatic immunity.
For the record; I think that the obligation to cooperate with the ICC in itself should be sufficient. States-parties in this regard might be taken as organs of the ICC, pursuing ICC policy in stead of their own. In this sense I don’t feel that the interstate immunity would apply, as a distinction between prosecution (by the ICC) and arrest (by States) would be artificial and detrimental to the ICC’s aims and functioning.

]]>