Commentary on Sections Part 2: Arrest and Delivery of Persons Section 23: Provisions as to State or diplomatic immunity
46.Article 27 states that the Statute shall apply equally to all persons without any distinction based on official capacity and that immunities attaching to the official capacity of a person, whether under national or international law, shall not bar the ICC from exercising its jurisdiction over such a person. Article 98.1 provides that the ICC may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the ICC can first obtain that third State’s co-operation for the waiver of the immunity. These Articles mean that a State Party to the ICC Statute, in accepting Article 27, has already agreed that the immunity of its representatives, officials or agents, including its Head of State, will not prevent the trial of such persons before the ICC, nor their arrest and surrender to the ICC. But non-States Parties have not accepted this provision and so the immunity of their representatives would remain intact unless an express waiver were given by the non-State Party concerned to the ICC.
47.Subsection (1) of section 23 therefore provides that any state or diplomatic immunity attaching to a person by reason of his connection to a State Party will not prevent his arrest and surrender under this Act if requested by the ICC. This may include a serving Head of State or Ambassador. As for persons with immunity as a result of their connection to a non-Party, subsection (2) provides that a waiver obtained by the ICC in relation to a request for that person’s surrender, will be treated as extending to proceedings for his arrest and surrender under this Act.
48.Subsection (4) provides that the Secretary of State may direct that proceedings for arrest and delivery shall not be taken against a person who has State or diplomatic immunities which, but for subsections (1) or (2), would have prevented such proceedings. The Secretary of State can do so only after consulting with the ICC and the State concerned.
49.If the United Nations Security Council, acting under Chapter VII of the UN Charter, refers a situation to the ICC for investigation and prosecution, the Security Council resolution might, depending on its wording, override any immunities attaching to representatives of all States, including non-Parties. Subsection (5) is intended to enable such a resolution to be implemented in this country.