CYIL Vol. 7, 2016

JAN LHOTSKÝ

CYIL 7 ȍ2016Ȏ

3. Arrest warrant On the grounds of the evidence submitted by the Prosecutor, in 2009 the Court issued a warrant of arrest for Omar al-Bashir for charges of war crimes and crimes against humanity. In 2010, it extended it to cover the charge of genocide as well. The warrants of arrest for Omar al-Bashir list ten counts on the basis of his individual criminal responsibility under Article 25(3)(a) of the Rome Statute as an indirect (co)perpetrator including: 1 • Five counts of crimes against humanity: murder [Article 7(1)(a)]; extermination [Article 7(1)(b)]; forcible transfer [Article 7(1)(d)]; torture [Article 7(1)(f )]; and rape [Article 7(1)(g)]. • Two counts of war crimes: intentionally directing attacks against a civilian population as such or against individual civilians not taking part in hostilities [Article 8(2)(e)(i)]; and pillaging [Article 8(2)(e)(v)] and • Three counts of genocide: genocide by killing (Article 6-a), genocide by causing serious bodily or mental harm (Article 6-b) and genocide by deliberately inflicting on each target group conditions of life calculated to bring about the group’s physical destruction (Article 6-c). Since then, President al-Bashir travelled to a number of the countries of the African Union, mostly non-Party States. However, he has also visited some of the countries that are States Parties to the Rome Statute such as Kenya, Chad, Djibouti, Malawi, Nigeria and in June 2015 South Africa, without being arrested. 4. Immunities in international law There are two kinds of immunities to be distinguished under the customary international law. The first is functional immunity or immunity ratione materiae (covering official acts). This is an immunity granted to people who perform certain functions of state, e.g. a Head of State. The second is personal immunity, or immunity ratione personae (covering official and private acts). This is an immunity granted to certain officials because of the office they hold, rather than in relation to the acts they perform. Although personal immunity ceases to exist when the officials protected by it leave office, functional immunity lasts also after leaving the office. However, having no peremptory character ( jus cogens ), such immunity can be derogated between contracting parties by a specific treaty law. For instance, it does not apply between States Parties to the Rome Statute for the purpose of the ICC jurisdiction and cooperation with it. In particular, Article 27 of the Rome Statute with the heading ‘Irrelevance of the official capacity’ states in para 1: This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government … shall in no case exempt

1 See the ICC case information sheet: http://www.icc-cpi.int/iccdocs/PIDS/publications/AlBashirEng.pdf.

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