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JAN LHOTSKÝ

CYIL 7 ȍ2016Ȏ

3. Arrest warrant

On the grounds of the evidence submitted by the Prosecutor, in 2009 the Court

issued a warrant of arrest for Omar al-Bashir for charges of war crimes and crimes

against humanity. In 2010, it extended it to cover the charge of genocide as well.

The warrants of arrest for Omar al-Bashir list ten counts on the basis of his

individual criminal responsibility under Article 25(3)(a) of the Rome Statute as an

indirect (co)perpetrator including:

• Five counts of crimes against humanity: murder [Article 7(1)(a)]; extermination

[Article 7(1)(b)]; forcible transfer [Article 7(1)(d)]; torture [Article 7(1)(f )];

and rape [Article 7(1)(g)].

• Two counts of war crimes: intentionally directing attacks against a civilian

population as such or against individual civilians not taking part in hostilities

[Article 8(2)(e)(i)]; and pillaging [Article 8(2)(e)(v)] and

• Three counts of genocide: genocide by killing (Article 6-a), genocide by causing

serious bodily or mental harm (Article 6-b) and genocide by deliberately

inflicting on each target group conditions of life calculated to bring about the

group’s physical destruction (Article 6-c).

Since then, President al-Bashir travelled to a number of the countries of the

African Union, mostly non-Party States. However, he has also visited some of the

countries that are States Parties to the Rome Statute such as Kenya, Chad, Djibouti,

Malawi, Nigeria and in June 2015 South Africa, without being arrested.

4. Immunities in international law

There are two kinds of immunities to be distinguished under the customary

international law. The first is functional immunity or immunity

ratione materiae

(covering official acts). This is an immunity granted to people who perform certain

functions of state, e.g. a Head of State. The second is personal immunity, or immunity

ratione personae

(covering official and private acts). This is an immunity granted to

certain officials because of the office they hold, rather than in relation to the acts they

perform. Although personal immunity ceases to exist when the officials protected by

it leave office, functional immunity lasts also after leaving the office.

However, having no peremptory character (

jus cogens

), such immunity can be

derogated between contracting parties by a specific treaty law. For instance, it does

not apply between States Parties to the Rome Statute for the purpose of the ICC

jurisdiction and cooperation with it. In particular, Article 27 of the Rome Statute

with the heading ‘Irrelevance of the official capacity’ states in para 1:

This Statute

shall apply equally to all persons without any distinction based on official capacity. In

particular, official capacity as a Head of State or Government … shall in no case exempt

See the ICC case information sheet: