fanger, et al,
Well, this is not a question, properly framed.
• Is
sovereign or diplomatic immunity available to government officials where they are charged with either war crimes, crimes against humanity or genocide?
Diplomats do not have immunity from War crimes
(COMMENT)
All diplomatic immunity temporary in nature and stems from the host nation recognizing and granting a special status (or derivative special status) to a foreign diplomat or government official. In the case of the UK, Minister
Tzipi Livni sends her "Diplomatic Passport" to the UK Embassy in Tel Aviv, and the UK government (Foreign Office) puts a fancy little VISA in the Passport citing the special status. And this is what protects Diplomats and Government Officials from arrest and prosecution.
This is in keeping with Article 31 of the
Vienna Convention on Diplomatic Relations 1961 protecting diplomatic agents from criminal prosecution such that the Convention provides ‘a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.
Article 31
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
(a) A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
(b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;
(c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.
Now, understand that the special status from which the diplomatic immunity arises, ends once the Diplomats and Government Officials leave their official posting. This is the common interpretation of:
Article 39(2)
2.When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.
Generally speaking, then once the issue of "immunity" is settled, then the International Criminal Court (ICC) must determine if Jurisdiction criteria is met. The ICC could exercise jurisdiction over such crimes committed by anyone on Palestinian territory. Israel, like the United States, is not a an ICC member, but its citizens could be tried on accusations of crimes on Palestinian land. But there is a question if the ICC has jurisdiction over allegations 13 June 2014, when the State of Palestine's ratification did not go into force until 1 April 2015 (the following year).
Article 12 Preconditions to the exercise of jurisdiction
1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.
2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;
(b) The State of which the person accused of the crime is a national.
3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.
The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:
(a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;
(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or
(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.
If the questions were simple enough for the laypersons in this discussion group to answer, cut'n'dry, then the preliminary investigation would be well over. At the current time, the State of Palestine is desperately trying to gain the sympathy of the court through politicization, on totally separate issues not directly answerable. The State of Palestine is not trying to address any of the questions leading up to the confrontation. The State of Palestine simply starts the fight, provoking a military response, and then file for the court to address how hard the State of Israel hit back.
Most Respectfully,
R
