The issuance of the arrest warrants against Israel’s Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant by the Pre-Trial Chamber (“PTC”) of the International Criminal Court (“ICC”) on 21 November 2024 has again given rise to a situation where the applicability and functionality of Articles 27(2) and 98(1) of the Rome Statute demands renewed scrutiny. As this is not a new phenomenon, it is prudent to begin this piece by briefly explaining the inconsistency between the provisions and how the ICC has dealt with that inconsistency thus far, before turning to the implications on States’ obligations pursuant to the recently issued arrest warrants. The tension between Articles 27(2) and 98(1) of the Rome Statute Article 27(2) of the Rome Statute provides that international immunities, such as those enjoyed by sitting senior officials of a State, cannot shield such officials from prosecution by the ICC. This provision addresses the position of state officials vis-à-vis the ICC. Article 98(1), conversely, provides that the ICC is prevented from requesting States Parties to arrest…
Immunities
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EJIL: The Podcast! Episode 30: On the Precipice – The International Criminal Court and State Immunity
In this episode, Paola Gaeta, Director of the Geneva Academy of International Humanitarian Law and Human Rights and Professor of International Law at the Geneva Graduate Institute, and Roger O’Keefe, Professor of International Law, Bocconi University, join Marko Milanovic and Philippa Webb to discuss recent developments at the International Criminal Court. The Court has now issued…
The General Assembly Must Protect UNRWA by Requesting a Binding Advisory Opinion
The United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), a subsidiary organ of the General Assembly, provides a lifeline for hundreds of thousands of Palestine refugees. Their dependency on UNRWA — and consequently the importance of the Agency’s work — is greater than ever before. In spite of this situation, or perhaps…
On an International Judge’s Immunity: The ECtHR in Akay v Turkey
In April 2024, the European Court of Human Rights’ (ECtHR) Second Section Chamber (Chamber) unanimously found that Turkey violated the immunity, and consequently, the right to liberty and the right to private life of former Judge Aydin Sefa Akay. Recently, a five-member panel of the ECtHR’s Grand Chamber rejected Turkey’s request for a referral of…
Germany and International Criminal Law: Some Additional Reflections in Light of Another Set of Current Developments
In my post of March 12, 2024, on this blog, I offered some reflections on what I called a ‘noteworthy touch of Janus-facedness’ regarding Germany’s position on the issue of functional immunity and international criminal law. To briefly recapitulate, in November 2023, Germany’s Government had informed the International Law Commission (ILC) of its…