An Introduction To The International Criminal Court - Institute for ...

jurisdiction and admissibility 81
for concluding that incumbent heads of State and similar officials, such as
foreign ministers, were not protected by traditional immunities, as a matter
of customary international law. 56
There is an important practical exception, however, that can serve to
shield certain classes of persons from prosecution. The Court is prohibited,
pursuant to Article 98(1), from proceeding with a request for surrender
or assistance if this would require a requested State to act inconsistently
with its obligations under international law as concerns a third State,
unless the latter consents. Diplomatic immunity falls into such a category.
This means that, while a State party to the Statute cannot shelter its own
head of State or foreign minister from prosecution by the International
Criminal Court, the Court cannot request the State to cooperate in surrender
or otherwise with respect to a third State. Nothing prevents the State
party from doing this if it so wishes, and once the head of State was taken
into the actual custody of the Court, he or she would be treated like any
other defendant. Similarly, the Court is also prohibited from proceeding
in a request for surrender that would require a State party to act inconsistently
with certain international agreements reached with a third State. The
provision – Article 98(2) – was intended to ensure that a rather common
class of treaties known as ‘status of forces agreements’ (or SOFAs) would
not be undermined or neutralised by the Statute. SOFAs are used to ensure
that peacekeeping forces or troops based in a foreign country are not subject
to the jurisdiction of that country’s courts. Some ingenious lawyers in the
United States Department of State have attempted to pervert Article 98(2),
drafting treaties that shelter all American nationals from the Court. Several
States parties have succumbed to Washington’s pressure and agreed to such
arrangements.
The Rome Statute also declares that the Court has no jurisdiction over
a person under the age of eighteen at the time of the infraction. 57 The
solution is disarmingly simple, but much energy was expended on the issue
in tedious debates during the sessions of the Preparatory Committee and
the Diplomatic Conference. 58 The Working Group on General Principles
agreed to impose a ‘jurisdictional solution’ and to provide that the Court
56 Ibid., para. 58. Note that, in this respect, the International Court of Justice in effect overrules
the celebrated decision of the House of Lords in the Pinochet case: R. v. Bow Street Stipendiary
Magistrate and others, ex parte Pinochet Ugarte, [1998] 4 All ER 897; [1998] 3 WLR 1456.
57 UN Doc. A/CONF.183/C.1/L.76/Add.3, p. 3.
58 Saland, ‘International Criminal Law Principles’, pp. 200–2.