Immunity of State Officials before the International Criminal Court (ICC): the indictment of President Al-Bashir

Abstract

This Article is devoted to discussing the issuing of an arrest warrant by the International Criminal Court
(ICC) for Sudanese President, Omar Al-Bashir, in connection to the alleged international crimes, inter
alia, genocide, crimes against humanity and war crimes committed in Darfur. After issuing the arrest
warrant by the ICC, a number of legal questions have arisen, which this article is devoted to examining.
The first question is whether the ICC jurisdiction could be exercised over a serving Head of state of a
non-party to the ICC Statute. To what extent are incumbent Heads of state or Government are protected
under customary international law on immunities in respect of international crimes? To what extent can
such immunities of sitting Heads of state be disregarded by the ICC? Also, this Paper casts light on the
relationship between Articles 27 and 98 of the ICC Statute in the light of non-states parties to the Rome
Statute. Furthermore, it discusses the obligation of non-state parties to cooperate in giving effect to the
arrest warrant by the ICC. Finally, it critically analyses the legality and effects of the Security Council
referral to the ICC with respect to the crimes committed in Darfur.