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The Seesaw Exercise of Immunity Obligations Under International (Criminal) Law Outside the “Security Council Route”

Vedantha Sai & Winy Daigavane

22 Jan 2021

The International Criminal Court can exercise jurisdiction over Heads of States (“HoS”) that are not party to the Rome Statute provided the alleged offenses are committed in State party territory. However, the problem arises in the enforcement of such jurisdiction as it involves State-to-State interactions in the process of arrest and surrender of the HoS, as concerns over the application of diplomatic immunity arise. The State which receives the warrant for arrest and surrender (“requested State”), is in a unique predicament which involves the complex balancing exercise of following its Rome State obligation on one side of this jurisdictional seesaw and the diplomatic rights it owes to the HoS under international law on the other. Recently, the States have been pulled out of this conflict-of-norms dilemma and the see-saw has rested comfortably on the side of the Rome State obligations, as seen in Al-Bashir case, following the “Security Council Route.”

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Vedantha Sai is a fifth-year law student at The National University of Advanced Legal Studies (NUALS), Kochi, India. He possesses a keen interest in International Law, International Criminal Law, Human Rights and Constitutional Law.

Winy Daigavane is a fifth-year law student at The National University of Advanced Legal Studies, Kochi, India. Public International law, Human Rights Law, and Corporate and Commerical Laws are the subject-areas that pique her interest.