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- danterzian: The Peace and Justice Initiative argues that customary international law lifts Head of State immunity in cases of international crimes before international tribunals. I disagree. I do not believe they make a persuasive argument for the existence of this customary international law. Establishing a customary international law requires a widespread state practice that is undertaken out of a sense of legal obligation. Thus, since customary international law is based on state practice, the... (more)
- Scott McDonald: I agree with the argument that the nexus between U.N.S.C. 1593 and membership in the Genocide Convention means that Sudan and other Contracting Parties have accepted the jurisdiction of the ICC in this instance. However, this argument only utilizes half of the rationale present in the Bosnia Genocide case. By focusing solely on the obligation to punish created by the Convention, you are ignoring the obligation to prevent genocide that was also highlighted by the ICJ. While there are... (more)
- Peace and Justice... Introduction The current Sudanese President, Omar Al-Bashir, is subject to two outstanding arrest warrants issued by the ICC. The first warrant includes charges of war crimes and crimes against humanity, arising from the atrocities that have occurred in Darfur over recent years. The second warrant includes charges of genocide, also in relation to Darfur.1 The issuance of these warrants raises the question of whether States are obliged to arrest... (more)
- Cecilia: Although Ivory Coast is not a state party to the Rome Statute, the ICC may establish its jurisdiction to investigate the alleged human rights violation that occurred after the 2010 presidential election. Article 12.3 of the Rome Statute provides in relevant part: “If the acceptance of a State in which is not a Party to this Statute is required under paragraph the State may, by declaration lodged with the Registrar, accept the exercise of... (more)
- Cardon: Without grappling with the whole of your comment, I’ll just address your contention that the Prosecutor must maintain a presumption of innocence pursuant to Article 66 (not Article 64) of the ICC Statute. That’s a novel idea! Prosecutors are tasked with building a case against a suspect/defendant. A prosecutor has the burden of proving the guilt of the accused. It’s hard to see how they could do so while maintaining a presumption of innocence.... (more)
- alk1668: Important facts about the situation in Cote D’ Ivoire. “Some lawyers close to the International Criminal Court (ICC) rebelled against the words of the Prosecutor at the ICC.” We are a group of lawyers near the International Criminal Tribunal for Rwanda (ICTR), based in Arusha, Tanzania, and also near the International Criminal Court based in The Hague in the Netherlands... (more)
- davidlee211: The AU decision to not arrest or surrender Al Bashir in accordance with an ICC order does not override or suspend existing obligations of ICC States Parties under the Rome Statute. Therefore, ICC States Parties are obligated to cooperate with the ICC. The African Union (“AU”) has the legal competence to require AU members to not cooperate with the International Criminal Court (“ICC... (more)
- JJ Paust: With respect to non-immunity of sitting or former heads of state or officials under international law, our casebook notes the prosecution of Conradin von Hohenstafen in 1268, Peter von Hagenbach in 1474, the “trial” by an int’l congress of Napoleon in 1818 (punishment = exile), the indictment in absentia of Kaiser Wilhelm in the 1919 Treaty of Versailles, the 1919 Responsibilities Commission Report recognizing head of state responsibility, the dicta in the U.S.... (more)
- G. L.: I. Introduction: Currently, the International Criminal Court (ICC) case against President Omar Al Bashir faces the reality that no incumbent head of state has ever been arrested and prosecuted by an international tribunal, at least in part due to the well-established principle of head of state immunity. In analyzing the justifications and development of immunities under international law, I will argue that immunity does not protect Al Bashir... (more)
- JJ Paust: Under Article IV of the Genocide Convention, there is absolutely no immunity for any person of any present or past status—especially a sitting ruler or official—and the same holds true with respect to any other international criminal instrument. For example, there is absolutely no immunity for a head of state or official under Article 27 of the Rome Statute of the ICC. Clearly, the preamble to the Rome Statute is also relevant when it... (more)
Comment on the Darfur Question: “What are the obligations of Contracting Parties to the Genocide Convention to implement arrest warrants for genocide issued by the ICC, and of African Union State Parties to implement ICC arrest warrants generally?”
The Peace and Justice Initiative argues that customary international law lifts Head of State immunity in cases of international crimes before international tribunals. I disagree. I do not believe they make a persuasive argument for the existence of this customary international law.
Establishing a customary international law requires a widespread state practice that is undertaken out of a sense of legal obligation. Thus, since customary international law is based on state practice, the practices of the Security Council-created ICTY and ICTR are irrelevant to establishing a customary international law.
Additionally, I argue that the Rome Statute of the ICC lacks sufficient acceptance to establish the widespread state practice necessary to establish a customary law removing Head of State immunity. The Rome Statute is ratified by a bare majority of the world's nations. Furthermore, seven G20 states, with a population amounting to nearly half the world, reject the Rome Statute. Additionally, Article 98(1) of the Rome Statute confirms that this alleged customary international law does not exist by recognizing that government officials of states not party to the Rome Statute still possess immunity.