CYIL vol. 7 (2016)

333

CYIL 7 ȍ2016Ȏ

THE ICC ARREST WARRANT FOR THE SUDANESE PRESIDENT…

a person from criminal responsibility under this Statute

. In para 2, it adds:

Immunities

or special procedural rules which may attach to the official capacity of a person, whether

under national or international law, shall not bar the Court from exercising its jurisdiction

over such a person

This Article therefore constitutes derogation from the rule of customary international

law. However, due to the relative effect of treaties, customary international law must

nevertheless be respected where a non-Party high official is concerned.

5. Does Head of State immunity apply to President Omar al-Bashir?

Governments of Member States of the African Union (AU) often express their

legal opinion, according to which State Parties to the Rome Statute may not claim

immunities for their own officials, but they must respect immunities of the officials

of non-Party States. With this regard, Art. 98 para 1 of the Rome Statute should

be mentioned:

The Court 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 …

Therefore, in their view the customary immunities prevail if the

arrest warrant concerns an official of a non-Party State.

Although customary immunities can be interpreted in different ways and

therefore may to a certain extent be considered a grey legal area, there are three

legal arguments that can be used in order to allow a sitting Sudanese President to

be arrested in a country that is a State Party to the Rome Statute, such as the South

African Republic.

First, it can be argued that immunities under customary international law do not

apply before international criminal tribunals. Second, it should legally be understood

that by means of referring the situation in Darfur to the ICC, the immunities have

been waived by the Security Council resolution. Third, it may be argued that the

immunities under customary international law do not cover acts such as committing

international crimes.

5.1 Non-applicability of customary immunities to proceedings

at international criminal tribunals

The first issue is whether the customary immunities of Head of State apply for

national proceedings only, or in general, i.e. also for international courts.

The case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic

of the Congo v. Belgium) before the International Court of Justice (ICJ) confirmed

the immunity of the then Foreign Minister of the Democratic Republic of the Congo

See also Art. 98 (1) of the Rome Statute.