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under customary international law. However, this ruling was concerned solely with
immunity across national jurisdictions and the judgement itself stated that the then
Minister may be subject to criminal proceedings before certain international criminal
courts, where they have jurisdiction.4
The issue of applicability of customary immunities was elaborated by the Inter-
national Criminal Court in its decision with regard to non-execution of an arrest
warrant against President al-Bashir on his visit to Malawi.5 Based on former cases before
international criminal tribunals and their argumentation regarding immunities, the
Court concluded that the principle in international law is that the immunity of an
either former or sitting Head of State cannot be invoked to oppose a prosecution by
an international court.
However, it can be argued that this position cannot prevail, because in such
a case a national court would have to respect the customary immunities, whereas an
international court established for example between only two states would possess the
jurisdiction to try alleged perpetrators without any regard to customary immunities.
5.2 Waiver of immunities in line with the Rome Statute based
on UNSC resolution
The second legal issue is whether the immunities have been waived by means
of the Security Council referral. The resolution states that the Security Council:
Decides that the Government of Sudan and all other parties to the conflict in Darfur, shall
cooperate fully with and provide any necessary assistance to the Court and the Prosecutor
pursuant to this resolution…6
Regrettably, the resolution does not explicitly mention that it waives the immunities.
That is why the African Union and many of its Member States share the legal opinion
that the immunities under customary international law prevail and they are not legally
obliged to refer a Head of State of a non-Party State to the ICC.7 In other words,
according to this opinion States Parties must respect the immunities of the officials
of a non-Party State like Sudan.
Nevertheless, many other States Parties to the Rome Statute share the legal
opinion that by means of the Security Council referral to the ICC, the founding
treaty of the Court – the Rome Statute – is the legal basis that must be applied to
the situation referred. The Security Council is aware of the fact that the ICC works
according to the Rome Statute and therefore, because of Art. 27 of the Rome Statute,
4 The decision also mentions the examples of the International Criminal Tribunal for the former
Yugoslavia, the International Criminal Tribunal for Rwanda and the International Criminal Court. See
para 61 of the judgment.
5 Para 22-43, available at:
6 Para 2, SC Resolution 1593 (2005).
7 See the Article by Paola Gaeta: Does President Al Bashir Enjoy Immunity from Arrest?, Journal of
International Criminal Justice, Volume 7, Issue 2.