The International Court of Justice

The International Court of Justice (ICJ) has repeatedly stated that the Convention 1 embodies
principles that are part of general customary international law. Among those are the prohibition
of genocide, as well as the obligation to prevent and punish genocide 2. As customary
international law, such obligations are binding on all States, whether or not they have ratified the
Genocide Convention.3
While Charles Taylor was still President of → Liberia, the Special Court for Sierra Leone
(‘SCSL’) indicted him for various serious international offences committed in → Sierra Leone
and rejected his attempt to have the indictment quashed on grounds of immunity (Prosecutor v
Taylor; → Mixed Criminal Tribunals [Sierra Leone, East Timor, Kosovo, Cambodia]).4
The arrest of the person appears necessary: (i) To ensure the person's appearance at trial; 5 This is
the main reason to detain suspects, there are several decisions where warrant of arrests have been
based on this ground. In Prosecutor v. Lubanga, Decision reviewing the “Decision on the
Application for the Interim Release of Thomas Lubanga Dyilo” 6, TC I concluded that the
defendant was highly unlikely to attend his trial voluntarily. For these reasons TC I found it
necessary to continue to detain the defendant.
Immunity ratione personae does not apply with regard to criminal proceedings before
international courts. Consequently, the ICC would then have jurisdiction over incumbent high
ranking state officials that are nationals of a non-state party that has not voluntarily waived the
immunity of its state officials.7
1
Convention on the Prevention and Punishment of the Crime of Genocide (9 December 1948)
78 UNTS 227, entered into force 12 January 1951
2
Article IV.
3
https://www.un.org/en/genocideprevention/documents/Appeal-Ratification-Genocide-FactSheet_final.pdf , pg. 2
4
¶11.
5
Article 58 (b) of the ICC Rome Statute.
6
ICC-01/04-01/06-976, 8 October 2007.
7
Prosecutor v. Omar Al Bashir, ICC PT. Ch., Decision on the Prosecution’s Application for a
Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-3, 4 March 2009
and Prosecutor v. Omar Al Bashir, ICC PT. Ch., Decision Pursuant to Article 87(7) of the ICC
Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests
In Prosecutor v. Katanga, Decision on the evidence and information provided by the Prosecution
for the issuance of a warrant of arrest for Germain Katanga, ICC-01/04-01/07-55, 5 November
2007, ¶ 64, PTC stated that “on the basis of the evidence and information contained in the
Prosecution Application, the Prosecution Supporting Materials and the Prosecution Response,
and without prejudice to any subsequent determination under Article 60 of the Statute and rule
119 of the Rules of Procedure and Evidence, the arrest of Germain Katanga appears necessary
pursuant to Articles 58(1)(b)(i) and (ii) of the Statute, both to ensure his appearance at trial and
to ensure that he does not obstruct or endanger the investigation or the court proceedings”. In
Prosecutor v. Ngudjolo, Warrant of Arrest for Mathieu Ngudjolo Chui, ICC-01/04-01/07-260-
tENG, 6 July 2007, p. 7, PTC I issued an warrant of arrest on two grounds, namely Articles 58(1)
(b)(i) and (ii).
A state party should be considered to be an extension of the Court and thereby using the
jurisdiction of the ICC instead of its own, domestic jurisdiction. This enables state parties to
carry out requests for cooperation where the subject of the request is the national of a non-party
state without breaking its international obligations.8
A state party to the ICC is an instrument of the jus puniendi of the Court (¶ 46). In other words,
the Court argued that a state party that receives a request for cooperation does not use its own
domestic jurisdiction when enforcing that request but rather the international jurisdiction of the
ICC. Consequently if one agrees with the view that incumbent high ranking state officials does
not enjoy immunity ratione personae with regard to international proceedings regarding
international crimes (a conclusion that also was reached by the Pre-Trial Chamber in the
decision, see ¶ 36) there is no conflict of obligations as described in Article 98(1) at hand.9
Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir,
ICC-02/05-01/09-139, 12 December 2011)
8
Prosecutor v. Omar Al Bashir, ICC PT. Ch., Decision on the Prosecution’s Application for a
Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-3, 4 March 2009
9
Prosecutor v. Omar Al Bashir, ICC PT. Ch., Decision Pursuant to Article 87(7) of the Rome
Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests
Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir,
ICC-02/05-01/09-139, 12 December 2011.
Sub-paragraph b) applies to cases where the requested State is under an international obligation
to extradite the person to the requesting State. This provision follows paragraph 6 granting some
discretion to the requested state with the difference that the requested State should afford special
attention to nature and gravity of the conduct in question. It is expected that the Court will deal
with most serious cases which would give it priority over competing requests, but there could be
exceptional situations where the requesting State are investigating and prosecuting as serious or
more serious crimes than those alleged by the Court.10
This cooperation11 should take fully into account the need to respect the basic humanitarian
principles, in particular the principles of humanity, neutrality and impartiality, and the need to
maintain humanitarian access to the victims of armed conflicts and to ensure the safety and
security of humanitarian personnel in the field. In this connection, adequate protective and non-
disclosure measures would be necessary for cooperation between the Court and organizations
involved in humanitarian activities.12
Adawa had an obligation to cooperate with the ICC.
Darian Grey’s arrest before the ICC was not precluded by the any immunity.
Surrender her to ICC.
10
Article 90(7) of the ICC Rome statute; Claus Kreß and Kimberly Prost, “Article 90 –
Competing Requests”, in Otto Triffterer (ed.), Commentary on the Rome Statute of the
International Criminal Court: Observers’ Notes, Article by Article, 2nd ed., C.H.
Beck/Hart/Nomos, Munich/Oxford/Baden-Baden, 2008, pp. 1556.
11
Article 86, ICC Rome Statute.
12
Note by the Secretary General, COMMUNICATION RECEIVED FROM INTER-AGENCY
STANDING COMMITTEE TO THE UNITED NATIONS DIPLOMATIC CONFERENCE OF
PLENIPOTENTIARIES ON THE ESTABLISHMENT OF AN INTERNATIONAL
CRIMINAL COURT, pg. 2.

The International Court of Justice

Uploaded by

Copyright:

Available Formats

The International Court of Justice

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

The International Court of Justice

Uploaded by

Copyright:

Available Formats

The International Court of Justice (ICJ) has repeatedly stated that the Convention 1 embodies

Adawa had an obligation to cooperate with the ICC.

Surrender her to ICC.

You might also like