CYIL 2012

PETRA BAUMRUK CYIL 3 ȍ2012Ȏ Al Bashir (hereafter Omar Al Bashir ), current president of Sudan, for war crimes and crimes against humanity. On 12 July 2010, after a lengthy appeal by the prosecution, the court held that there was sufficient evidence for charging him also for genocide and it issued a second warrant. Further the court directed the Registrar to prepare a request for cooperation in seeking his arrest and surrender. It specified that such a request must be circulated internationally, namely to the competent Sudanese authorities, all states parties to the Statute of the ICC and all UN Security Council members that are not states parties to the ICC Statute. Moreover the court instructed that any other state that is not a member to the ICC statute should also be prepared for the arrest and surrender of Omar Al Bashir. 58 This action against the Sudanese president is interesting, especially in view of immunities enjoyed by incumbent heads of state, because it is the first warrant of arrest ever issued for a sitting head of state by the ICC. However, this is not the first time that an international criminal court has decided that a serving head of state must be arrested and must surrender to face trial for charges of international crimes. For example, the International Criminal Tribunal for the former Yugoslavia (hereafter ICTY) issued an arrest warrant against the former president of Yugoslavia, the late Slobodan Milosevic, and the Special Court for Sierra Leone (hereafter SCSL) issued an arrest warrant against Charles Taylor, when he held office as president of Liberia. 59 In the former case no one challenged the legality of the arrest warrant issued by the ICTY by invoking the international personal immunities accorded to an incumbent head of state. However in the latter case it was argued that the SCSL was a “domestic” criminal tribunal, not an international one, and should therefore respect the personal immunities of a sitting head of state provided under international law. The SCSL however asserted its international nature and claimed that the rules on international law on personal immunities to incumbent heads of state do not apply before an international criminal court. 60 T he SCLS relied on a passage in the Pinochet case and the Arrest Warrant case which made reference to the possibility of such prosecution before international courts and that personal immunities are simply inapplicable before any tribunal and court that can be characterized as “international”: hence personal immunity is no barrier to such international prosecutions. 61 However, the appropriate starting point to answer the question of whether the ICC violated the rules on personal immunities by issuing an arrest warrant for a sitting head of state is to look into the legal nature of the ICC. Article 4 of the ICC Statute expressly recognizes that the court “shall have 58 ICC case concerning the Prosecutor v Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, Pre-Trial Chamber 1, 4 March 2009, retrieved from; http://www.icc-cpi.int/menus/icc/situations%20and%20 cases/situations/situation%20icc%200205/related%20cases/icc02050109/icc02050109?lan=en-GB, (Omar Al Bashir case). 59 See further next sub-chapter. 60 SCSL case concerning the Prosecutor v Charles Taylor, A Chamber Decision on immunity from jurisdiction SCSL-2003-01-I of 7 March 2003, retrieved from: http://www.sc-sl.org/CASES/ ProsecutorvsCharlesTaylor/TrialChamberDecisions/tabid/159/Default.aspx, (Charles Taylor case). 61 Robert Cryer, a.o.: An Introduction to International Criminal Law and Procedure, p. 550.

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