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Part II The Relationship to Domestic Jurisdictions, 12 The Frog that Wanted to Be an Ox: The ICC’s Approach to Immunities and Cooperation

Dov Jacobs

From: The Law and Practice of the International Criminal Court

Edited By: Carsten Stahn

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 23 September 2023

Jurisdiction — Customary international law — Diplomatic immunity — Immunity from jurisdiction — Regional co-operation

This chapter addresses the relationship between immunities and the requirements of state cooperation in cases where the person prosecuted is a national of a non-State Party (e.g. Al Bashir). It examines the complex relationship between Articles 27 and 98 of the Rome Statute and the manner in which they comport with clearly established norms of public international law. The chapter highlights a number of possible legal avenues to circumvent the obstacle posed by immunities, which include reference to customary international law, analysis of the powers of the United Nations Security Council, and the Genocide Convention. It argues that all these solutions have a number of flaws that are difficult to overcome.

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