CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ THE ICC ARREST WARRANT FOR THE SUDANESE PRESIDENT… which governs irrelevance of the official capacity, based on the Security Council referral the immunities have been implicitly waived with regard to this provision of the Rome Statute. 8 5.3 Progressive argument based on the purpose of immunities It can also be argued that the purpose of customary immunities is not to provide impunity for international crimes, but to enable continual exercise of legitimate functions of a state. Immunity was not granted to state officials for their own benefit, but to ensure effective performance of their functions on behalf of their states. It is generally accepted that peremptory norms of international law ( jus cogens ) include the prohibition of genocide, crimes against humanity, war crimes, the crime of aggression, maritime piracy, slavery and torture. 9 Although such crimes may be perpetrated as part of an exercise of a government, they cannot be considered as legitimate functions of a state. 10 Not only because such acts are wrong and condemnable, but also because they are illegal under international law. It would seem to be irrational if customary immunities that are not of a jus cogens character were able to protect persons having committed crimes that are forbidden under jus cogens , i.e. law of a stronger (non-derogable) character. According to this interpretation, immunities under customary law would not cover such international crimes. However, it should be said that such interpretation is presumably not supported by state practice and also that the ICJ ruling in the case of the Arrest Warrant of 2000 relating to a proceeding before a national court does not exclude international crimes from the scope of customary immunities. Nevertheless, since the issuance of this judgment in 2002, several cases of international prosecutions of high-ranking government officials including Heads of States (e.g. Charles Taylor, Laurent Gbagbo, Hissène Habré) are to be noted and, therefore, the perception of the institute of customary immunities and its possible exemptions may (and should) be evolving. At this time, however, this interpretation can be considered to be progressive. In summary, although legal interpretations may differ, it can be concluded that based on the Security Council referral, Art. 27 of the Rome Statute applies to the situation in Sudan as well. In addition, the preferable values-based argument suggests 8 See the Article by DAPO AKANDE, The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities, Journal of International Criminal Justice , Volume 7, Issue 2. 9 M. CHERIF BASSIOUNI, International Crimes: Jus Cogens and Obligatio Erga Omnes, Law and Contemporary Problems , Volume 59, No. 4, p. 68. 10 For example within the first ruling of the House of Lords in the 1999 Pinochet case, Lord (judge) Steyn maintained that genocide, torture, hostage-taking and crimes against humanity, condemned by international law, clearly amount to conduct falling beyond the functions of a Head of State. Analysis of the Pinochet case available at: http://www.ejil.org/pdfs/10/2/581.pdf.

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