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saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
47
See: Cassese, A. (2003) International Criminal Law, p. 267.
48
United Nations Security Council Resolutions 808 and 827(1993).
49
United Nations Security Council Resolution 955 (1994).
50
Milosevic, ICTY decision on preliminary motions, Trial Chamber III, Decision of
8 November 2001, paras. 226-33, seen in: Fox, H. (2002) The Law of State
Immunity, p. xx.
51
Rome Statute of the International Criminal Court, Art. 27.
52
As the Security Council of the United Nations can deal on its own discretion with
any threat or breach of international peace and security, which are not legal but
rather, political concepts, the arbitrariness and employment of political
considerations is not necessarily excluded in Security Council’s decision making
process. On this see, in general: Conforti, B. (2005) The Law and Practice of the
United Nations.
53
O’Neill, K.C. “A New Customary Law of Head of State Immunity: Hirohito and
Pinochet”, in Stan-ford Journal of International Law (2002), vol. 38, at 289, p. 294.
54
O’Neill, K.C. “A New Customary Law of Head of State Immunity: Hirohito and
Pinochet”, in Stan-ford Journal of International Law (2002), vol. 38, at 289, p. 294.
55
Detailed consideration of different types of jurisdiction falls outside the scope of
this essay. See, in general: Brownlie, I. (1998) Principles of Public International
Law, pp.289-299; Bantekas, I. & Nash,S. (2003) international Criminal Law pp.
143-148, pp. 151-165.
56
Shaw, M.N. (2003) International Law, p. 572. (emphasis added).
57
Shaw, M.N. (2003) International Law, (emphasis added). p. 573.
58
Ibid.
59
See, e.g.: Convention on the Prevention and Punishment of the Crime of
Genocide, International Convention against the Taking of Hostages, Conve-ntion
Against Torture and Other Cruel, Inhuman or Degrading Treatment or punishment
60
Broomhall, B. (2003) International Justice and The International criminal Court,
p. 105.
61
Ibid.
62
Albeit this concept is not yet widely accepted as a priory notion of international law:
See, e.g.: “Ko-so-vo: House of Commons Foreign Affairs Commi-ttee 4 th Report,
June 2000”, in ICLQ (2000), vol. 49(4), pp. 876-943.
63
On the complementarity principle, in general see: Simpson, G. (2004) “Politics,
Sovereignty, Reme-brance” in: McGoldrick, D & et al (ed.), The Perma-nent
International Criminal Court: Legal and Policy Issues, p. 55.
64
See: Rome Statute of the International Criminal Court, Art. 17; Even this principle
suggests the support to the sovereign immunity. Thus, the argu-ment according
to which the International Criminal Court has unprecedented universal jurisdiction
must be dismissed.
65
See: Pinochet House of Lords, Regina v. Bartle and the Commissioner of Police
for the Metropolis and Other (Appellants), Ex Parte Pinochet (Res-pon-dent)
(Second Appeal hearing from a Divisional Court of the Queen's Bench Division
holding that former heads of state are entitled to immunity), House of Lords, 24
March 1999.
66
See, in general: Horowitz, J. Regina v. Bartle and the Commissioner of Police for
the Metropolis and Others Ex Parte Pinochet: Universal Jurisdiction and Sovereign
Immunity for Jus Cogens Violations in Fordham International Law Journal vol.23,
pp.489-527; O’Neill, K.C. “A New Customary Law of Head of State Immunity:
Hirohito and Pinochet”, in Stanford Journal of International Law (2002), vol. 38, at
289, p. 317.
67
See: footnote 66 supra, p. 316.
68
Ibid., p. 291.
69
Ex parte Pinochet (No.1), [1999] 1 A.C. at 109.
70
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or punishment.
71
Carter, P. (2002) “International Criminal Law and Human Rights” in: Butler, F.(ed.),
Human Rights Protection: Methods and Effectiveness, p. 145.
80