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Part II Substantive Law, 7 The Third Alternative of Surrender to a Competent International Criminal Tribunal or a Hybrid Tribunal and its Impediments

From: The Obligation to Extradite or Prosecute

Kriangsak Kittichaisaree

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 23 September 2021

Diplomatic immunity — Heads of state and other senior officials — Customary international law

The chapter elaborates the practical difficulties and principled opposition to the third alternative of surrender to a competent international criminal tribunal or hybrid tribunals, especially among several States in Africa on the grounds of discriminatory justice and/or the allegedly prevailing rule of customary international law of immunity of the head of State and some other senior State officials. In particular, while Article 27 of the 1998 Rome Statute of the International Criminal Court deems the official position of any person to be irrelevant, Article 98 of the same Statute sets conditions for cooperation with respect to waiver of immunity or consent for surrender of the person, which may not be forthcoming in practice. The author explains how the conflicting rules can be reconciled, if at all.

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