CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ THE ICC ARREST WARRANT FOR THE SUDANESE PRESIDENT… a person from criminal responsibility under this Statute . In para 2, it adds: Immunities or special procedural rules 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 . This Article therefore constitutes derogation from the rule of customary international law. However, due to the relative effect of treaties, customary international law must nevertheless be respected where a non-Party high official is concerned. 2 5. Does Head of State immunity apply to President Omar al-Bashir? Governments of Member States of the African Union (AU) often express their legal opinion, according to which State Parties to the Rome Statute may not claim immunities for their own officials, but they must respect immunities of the officials of non-Party States. With this regard, Art. 98 para 1 of the Rome Statute should be mentioned: The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State … Therefore, in their view the customary immunities prevail if the arrest warrant concerns an official of a non-Party State. 3 Although customary immunities can be interpreted in different ways and therefore may to a certain extent be considered a grey legal area, there are three legal arguments that can be used in order to allow a sitting Sudanese President to be arrested in a country that is a State Party to the Rome Statute, such as the South African Republic. First, it can be argued that immunities under customary international law do not apply before international criminal tribunals. Second, it should legally be understood that by means of referring the situation in Darfur to the ICC, the immunities have been waived by the Security Council resolution. Third, it may be argued that the immunities under customary international law do not cover acts such as committing international crimes. 5.1 Non-applicability of customary immunities to proceedings at international criminal tribunals The first issue is whether the customary immunities of Head of State apply for national proceedings only, or in general, i.e. also for international courts. The case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) before the International Court of Justice (ICJ) confirmed the immunity of the then Foreign Minister of the Democratic Republic of the Congo 2 See also Art. 98 (1) of the Rome Statute. 3 See also Jens Iverson: Head of State Immunity is not the same as State Immunity: A Response to the African Union’s Position on Article 98 of the ICC Statute , available at: http://www.ejiltalk.org.

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