CYIL 2012

INTERNATIONAL LAW ON IMMUNITIES ACCORDED TO HIGHǧRANKING STATE OFFICIALS international legal personality” [emphasis added]. This means that the arrest warrant is an international one where the word “international” serves to underline that it is issued by an international body (accorded with international legal personality) and is aimed at obtaining the arrest and transfer of the requested person to face charges before an international criminal court. 62 In contrast, if the arrest warrant were issued by a national court, as was the fact in the Arrest Warrant case where the Belgian court issued an arrest warrant against the incumbent minister of foreign affairs, it would be considered as a breach of the international customary rules on personal immunities accruing to that official according to the conclusion in the Arrest Warrant case. However, the arrest warrant of Omar Al Bashir did not come from a national court, so it is not a domestic arrest warrant issued by a national authority and circulated at the international level. It is an international arrest warrant issued by an international court. The customary international law on immunities of heads of state (ministers and diplomatic agents), which according to the Arrest Warrant case prevents a domestic judicial authority from issuing an arrest warrant against such individuals, does equally apply to an international court. In the case after the ICJ stated that personal immunities constitute a bar to the exercise of criminal jurisdiction by national courts, it felt compelled to clarify that this is not the case with international criminal courts. As an example the court referred to a number of international courts and tribunals such as the ICTY, ICTR as well as the ICC. With regard to the ICC, the ICJ noted that Article 27(2) of the ICC Statute provides that “immunities […] 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”. 63 The principle enshrined in this Article applies with respect to every person enjoying immunities under customary international law, regardless of whether the state this person represents is a party to the ICC Statute. From this, one can draw a conclusion that the ICC, insofar as it has jurisdiction over a particular case, can also issue and circulate an international arrest warrant against an official representative of a state which is not a party to the ICC Statute. This was also held by the ICC pre-trial chamber when deciding whether to issue an arrest warrant against Omar Al Bashir, stating that: […] the Chamber considers that the current position of Omar Al Bashir as Head of a state which is not a party to the Statute, has no effect on the Court’s jurisdiction over the present case. 64 To summarize, primarily, as one can conclude from the decision in the Arrest Warrant case , a national court does not have the power to issue an international arrest warrant for an immune person. Should the domestic court issue such an arrest warrant it would be a violation of the international customary rules on personal

62 Paola Gaeta: “Does President Al Bashir Enjoy Immunity from Arrest?”, p. 317-318. 63 Arrest Warrant case, para. 61. 64 Omar Al Bashir case, para. 41.

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