This chapter explores the apparent disagreement between the International Court of Justice (ICJ) and the International Criminal Court (ICC) concerning personal immunity, which was recently actualized by the ICC’s arrest warrants against Vladimir Putin, Benjamin Netanyahu, and Min Aung Hlaing as well as by the establishment of The Special Tribunal for the Crime of Aggression against Ukraine. The ICC’s leading judgment from 2019 in the case concerning (now former) President Bashir of Sudan is, on crucial points, at odds with the leading ICJ judgment on personal immunity in Arrest Warrant from 2002. This situation poses a significant legal and political dilemma for governments of ICC member states, who are forced to make a choice between complying with the ICC’s interpretation of their obligations under the ICC Statute and the ICJ’s findings concerning their obligations under customary international law. Identifying the “true” meaning of the law is also a genuine challenge for doctrinal legal scholars and as such a good case study for what it might mean to engage in “critical doctrinalism” in the field of international law.

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Personal Immunity Before the International Criminal Court

  • Astrid Kjeldgaard-Pedersen

摘要

This chapter explores the apparent disagreement between the International Court of Justice (ICJ) and the International Criminal Court (ICC) concerning personal immunity, which was recently actualized by the ICC’s arrest warrants against Vladimir Putin, Benjamin Netanyahu, and Min Aung Hlaing as well as by the establishment of The Special Tribunal for the Crime of Aggression against Ukraine. The ICC’s leading judgment from 2019 in the case concerning (now former) President Bashir of Sudan is, on crucial points, at odds with the leading ICJ judgment on personal immunity in Arrest Warrant from 2002. This situation poses a significant legal and political dilemma for governments of ICC member states, who are forced to make a choice between complying with the ICC’s interpretation of their obligations under the ICC Statute and the ICJ’s findings concerning their obligations under customary international law. Identifying the “true” meaning of the law is also a genuine challenge for doctrinal legal scholars and as such a good case study for what it might mean to engage in “critical doctrinalism” in the field of international law.