tag:blogger.com,1999:blog-4605495417463810012.post232464904062509960..comments2024-03-06T10:16:40.696+00:00Comments on PhD studies in human rights: Immunity Decision in Karadzic CaseWilliam A. Schabashttp://www.blogger.com/profile/17552332133145290879noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-4605495417463810012.post-28682295504236739282008-12-24T07:53:00.000+00:002008-12-24T07:53:00.000+00:00Here is a relevant excerpt from a 3-page working p...Here is a relevant excerpt from a 3-page working paper accessed at: http://www.csls.ox.ac.uk/documents/Akande.pdf<BR/><BR/>`It is generally accepted that the Security Council in the exercise of its powers under Chapter VII of the UN Charter is competent to remove the immunity of serving heads of State. This follows from the fact that the Security Council may affect the rights of States when taking measures under Chapter VII which it deems to be necessary for the maintenance of international peace and security. Ultimately that removal of immunity is based on being a party to the UN Charter and accepting the binding authority of the Security Council under Chapter VII. The question is whether the Security Council has removed the immunity in the Bashir case. When Milosevic was indicted it was assumed that the Security Council resolutions which embodied the Statute of the ICTY and which required cooperation by the<BR/>Federal Republic of Yugoslavia had removed any immunities.<BR/>There are three possible ways of arguing that Bashir is not immune despite the fact that Sudan is not a party to the Statute of the ICC.<BR/>(i) There is a good argument to be made that whenever the Security Council refers a situation to the ICC, the State concerned is bound by the provisions of the Statute as if it were a party to the Statute. This argument suggests that the provisions of the Statute (including Article 27) operate in the same way regardless of how the Court acquires jurisdiction over the case;<BR/>(ii) It may be argued that when the Security Council decided in Resolution 1593 (operative para. 2) that the Government of Sudan must cooperate with the Court that this provision includes a lifting of the immunity.<BR/>(iii) It could be argued that in cases where an accused before the ICC is charged with genocide (as Bashir is) and the case comes by referral from the Security Council, the Genocide Convention 1948 lifts immunity. This argument draws on Articles IV and VI of<BR/>the Genocide Convention. The former provision says that persons committing genocide shall be punished even if they are constitutionally responsible rulers. The latter provides that such prosecutions are to take place either before the national courts of the country where the<BR/>genocide occurred or before an international penal tribunal with respect to which the State has accepted jurisdiction. Although Sudan has not accepted ICC jurisdiction, the ICJ has held in the Genocide Convention case (Bosnia v. Serbia) that the ICTY (which was created by Security Council resolution and not by treaty) falls within the scope of Article VI of the Genocide Convention because of the obligations that States have accepted under the UN Charter. Precisely the same argument could be made regarding the ICC in cases where the Security Council has referred the situation to the Court.'VC Lindsayhttps://www.blogger.com/profile/00732519687886296960noreply@blogger.com