Immunities

5 important questions on Immunities

What are the consequences for immunities if a state becomes a party to the Rome Statute?

The State relinquishes their immunities vis-a-vis the ICC when ratifying the ICC Statute. State parties to the ICC are obliged to cooperate with the ICC and to surrender individuals in accordance with the terms of the statute, according to article 27(2) Rome Statute.

What role does article 98 ICC Statute play in a case where a State Party surrenders its own national?

Art. 98 (1) is not applicable, because it refers to obligations to a third state. The state is obliged to cooperate without reservation (article 86).

Does article 98 ICC Statute bar the surrender or assistance of a State party when that State party is asked to surrender an official with persona immunity bestowed by other State Party?

No, it is generally accepted the it would not be necessary for the requested state first to obtain the waiver of the other state party. There are no "obligations under international law" owed to State Parties hindering surrender, because they have relinquished immunities when they accepted the obligations of the ICC. This also applies when the third state has voluntarily placed itself in the position of a State Party through a unilateral declaration (art. 12(3) and 87(5) ICC Statute)
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What are the consequences of article 98 when a State Party wants or is asked to surrender an official of a non-state party, who has personal immunity?

The official enjoys personal immunity and that immunity is bestowed by a non-State Party. If that State has not relinquished its personal immunities in favor of the ICC Regime (for example by acceptance of the ICC jurisdiction ad hoc), then the personal immunity persists.


Article 98 (1) requires respect for immunities existing under international law. Does this mean that there can be no surrender of an official with personal immunity at all?

No. There are still several options to surrender an official who enjoys personal immunity.
1. Even officials of non-State Parties to the Rome Statute will lose their immunity if the Security Counsel under Chapter VII orders full cooperation.
2. Prosecution is also possible if the non-State party agrees to waive the immunity.
3. Once the official is no longer serving in a capacity that entails personal immunity, he or she will only have functional immunity and hence be liable to prosecute for core crimes.

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