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which governs irrelevance of the official capacity, based on the Security Council
referral the immunities have been implicitly waived with regard to this provision of
the Rome Statute.8
5.3 Progressive argument based on the purpose of immunities
It can also be argued that the purpose of customary immunities is not to provide
impunity for international crimes, but to enable continual exercise of legitimate
functions of a state. Immunity was not granted to state officials for their own benefit,
but to ensure effective performance of their functions on behalf of their states.
It is generally accepted that peremptory norms of international law (jus cogens )
include the prohibition of genocide, crimes against humanity, war crimes, the
crime of aggression, maritime piracy, slavery and torture.9 Although such crimes may
be perpetrated as part of an exercise of a government, they cannot be considered as
legitimate functions of a state.10 Not only because such acts are wrong and condemnable,
but also because they are illegal under international law.
It would seem to be irrational if customary immunities that are not of a jus cogens
character were able to protect persons having committed crimes that are forbidden
under jus cogens, i.e. law of a stronger (non-derogable) character. According to this
interpretation, immunities under customary law would not cover such international
crimes.
However, it should be said that such interpretation is presumably not supported
by state practice and also that the ICJ ruling in the case of the Arrest Warrant of 2000
relating to a proceeding before a national court does not exclude international crimes
from the scope of customary immunities.
Nevertheless, since the issuance of this judgment in 2002, several cases of
international prosecutions of high-ranking government officials including Heads of
States (e.g. Charles Taylor, Laurent Gbagbo, Hissène Habré) are to be noted and,
therefore, the perception of the institute of customary immunities and its possible
exemptions may (and should) be evolving. At this time, however, this interpretation
can be considered to be progressive.
In summary, although legal interpretations may differ, it can be concluded that
based on the Security Council referral, Art. 27 of the Rome Statute applies to the
situation in Sudan as well. In addition, the preferable values-based argument suggests
8 See the Article by DAPO AKANDE, The Legal Nature of Security Council Referrals to the ICC and
its Impact on Al Bashir’s Immunities, Journal of International Criminal Justice, Volume 7, Issue 2.
9 M. CHERIF BASSIOUNI, International Crimes: Jus Cogens and Obligatio Erga Omnes, Law and
Contemporary Problems, Volume 59, No. 4, p. 68.
10 For example within the first ruling of the House of Lords in the 1999 Pinochet case, Lord (judge)
Steyn maintained that genocide, torture, hostage-taking and crimes against humanity, condemned by
international law, clearly amount to conduct falling beyond the functions of a Head of State. Analysis
of the Pinochet case available at: