As a sitting head of state of Sudan, Al Bashir’s acts would generally be covered under both forms of immunity. For parties to the Rome Statute, the suspension any immunities is explicitly laid out in Art. 27 which states that “official capacity as a Head of State or Government […] shall in no case exempt a person from criminal responsibility” and that “[i]mmunities […] whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.”4 However, Sudan is a non-party to the Rome Statute and is not directly subject to Art. 27.5

Without Art. 27 affirmatively suspending immunity, the question then becomes whether generally accepted justifications for recognizing immunities are applicable here. Generally, these immunities were developed and exercised “horizontally,” i.e. among equal sovereign states.6 Recognition of head of state immunity in state-to-state interactions is necessary for the basic function of international relations. However, the charge against Al Bashir is not being made by a single, co-equal state but rather by an international criminal tribunal, an entity which is not a “horizontal” co-equal but rather a “vertical” superior. Deferring to traditional immunities would defeat the purpose of creating an over-arching international criminal tribunal and would not follow the historic justifications for having immunities.7 Recent developments in international law indicate that such “vertical” contexts, the both functional and personal immunity are inapplicable.

First, functional immunity clearly does not protect against prosecution for international crimes. The principle behind functional immunity is that certain acts are necessary functions of state but international crimes can never be necessary functions of state. Furthermore, individuals are still responsible for international crimes and cannot hide behind the defense of official state action.8 This view is bolstered by the prosecution of Slobodan Milosevic for his actions while he had been head of state by the International Criminal Tribunal for the former Yugoslavia (ICTY). While functional immunity had not been explicitly raised as a defense, the decision nevertheless addressed the issue head-on.9 The ICTY found that Art. 7, paragraph 2 of the Statute of the International Tribunal for the Former Yugoslavia, which denies any form of head of state immunity,10 is valid and “reflects the rule of customary international law.”11 In coming to this decision, the ICTY noted the current trend of international instruments and case law supporting the derogation of functional immunity in prosecuting international crimes12, specifically citing from the Pinochet case, “In future those who commit atrocities against civilian populations must expect to be called to account if fundamental human rights are to be properly protected. In this context, the exalted rank of the accused can afford no defence.”13

Personal immunity is more problematic since the state of customary international law on this matter is not as clear as it is with functional immunity; however, personal immunity in this specific case has been undeniably revoked by Security Council Resolution 1593.

From the customary international law perspective, recent developments in international law do indicate an inclination favoring derogation of personal immunity. Milosevic and Charles Taylor were both indicted by international tribunals while they had been sitting heads of state14, indicating that incumbent head of state immunity is no bar to prosecution for war crimes and crimes against humanity. This trend tends to indicate that customary international law regarding personal immunity is developing parallel to functional immunity, resulting in the derogation of all immunities for international crimes.

This trend is complicated by the fact that the principle behind personal immunity is arguably still applicable in cases before an international tribunal. Prosecuting incumbent government officials, especially heads of state, undoubtedly impedes the basic functions of that country.15 Thus, as a matter of policy, suspending personal immunity under customary international law may be untenable.16 In that case, derogation of immunity would need a specific basis rooted in a legal document. For Milosevic and Taylor, the instruments establishing the ICTY and the Special Court for Sierra Leone (SCSL) contemplate personal immunity and explicitly bar the use of such immunities. In both cases, the countries had submitted themselves and their officials to such jurisdiction. As noted above, Sudan has not submitted itself to the ICC and Art. 27 the Rome Statute.

However, Security Council Resolution 1593 alters the equation. Despite not being a party to the Rome Statute, Sudan became subject to ICC authority once the Security Council referred the matter to the ICC, stating that “the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor.”17 ICC authority is governed by the terms of the Rome Statute; by referring the situation in Darfur to the ICC, the Security Council essentially made Sudan subject to prosecution under the terms of the Rome Statute for the Darfur conflict. As such, Al Bashir’s immunity as head of state has been suspended.

III. Arrest

The issue of immunity and Al Bashir’s arrest is a far greater battle for the ICC to fight so long as Al Bashir remains an incumbent President. Under Resolution 1593, Sudan has the obligation to “cooperate fully” with the ICC, meaning the government of Sudan should surrender Al Bashir of its own accord. This is highly unlikely scenario considering Sudan still does not recognize ICC authority and would clearly be resistant to arresting its own head of state.

Since the ICC lacks a related police force, the only other viable alternative is to rely on its member states to effectuate the arrest. Here, the immunities question begins anew because the question is no longer about immunity before an international tribunal but about immunity between states.

While functional immunity may still be suspended,18 the traditional justifications for personal immunity are applicable in full force—states are obligated to accord immunity to each other’s officials as equal sovereign nations. This creates the odd result that government officials may not be immune from prosecution but are immune to arrest. However, this conundrum is supported by case law as seen in the Arrest Warrant Case. In the Arrest Warrant Case, the ICJ rejected an arrest warrant issued by Belgium for the then-incumbent Minister of Foreign Affairs of the Democratic People’s Republic of the Congo. The ICJ concluded that immunities under customary international law remained valid even for serious crimes which international conventions created an obligation to punish and prevent. In analyzing state practice, the ICJ was “unable to deduce […] any form of exception to the rule according immunity from criminal jurisdiction” even where the accused is suspected of war crimes or crimes against humanity.19 Additionally, relevant international law cases and instruments do not contend with the issue of immunities before national courts.20

Furthermore, Art. 28 of the Rome Statute also creates an obstacle to arrest. As noted above, Art. 98 lends some context to interpreting the application of Art. 27 on the matter of immunity from ICC prosecution; however, it is more substantively relevant on the matter of arrest by a member state. Art. 98(1) states, “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, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.” Under Art. 98, member states’ obligation to arrest Al Bashir would be subordinate to their obligations to respect Sudan’s head of state immunity under customary international law.

Arguably, Security Council Resolution 1593 could suspend head of state immunity for arrest as it did for prosecution. However, this argument is not wholly convincing. The exact terms of the resolution merely referred the Darfur situation to the Prosecutor and required Sudan to cooperate with “the Court and the Prosecutor.”21 These terms pertain to the “vertical” authority of the ICC and the Prosecutor, i.e. Al Bashir is subject to prosecution and Sudan is obligated to surrender him. However, the Resolution does not specifically address the issue of arrest by a state nor does it expressly force Sudan generally submit to the entire terms of the Rome Statute as a party would. In contrast, when the Security Council established the ICTY22 and SCSL,23 the Security Council expressly removed personal immunities.

As the situation stands with the Rome Statute and current customary international law, Al Bashir is immune from arrest by a foreign state so long as he is the sitting head of state. One factor that could possible change this calculus is the Genocide Convention. In Bosnia and Herzegovina v. Serbia and Montenegro, the ICJ analyzed Article VI of the Genocide Convention which provides, “Persons charged with genocide […] shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.” The ICJ found that Art. VI created an implied obligation for member states to arrest persons accused of genocide who travel into that state.24 In other words, the Genocide Convention would overcome the customary international law obstacle that the Rome Statute alone could not. Thus, states who are parties to both the Genocide Convention and the Rome Statute would be obligated by Art. VI to arrest those accused of genocide by the Prosecutor such as Al Bashir.25

IV. Conclusion

The immunities question ultimately presents no obstacle to the ICC prosecution of Al Bashir considering the current trend derogating immunities under customary international law and the terms of Security Council Resolution 1593. However, this combination of international law structures does not sufficiently justify the denial of immunity from arrest by a co-equal state. While the Genocide Convention may present a solution, the Rome Statute and established customary international law provide an insufficient basis for arrest of Al Bashir as long as he remains head of state.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Press Release, International Criminal Court, ICC Issues a Warrant of Arrest for Omar Al Bashir, President of Sudan (Mar. 4, 2009), available online. ↩

2. 2.

   Decisions and Declarations, Assembly of the African Union, Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC), Assembly/AU/Dec.245(XIII) (July 1–3, 2009), available online. ↩

3. 3.

   Dapo Akande, International Law Immunities and the International Criminal Court, 98 Am. J. Int’l L. 407 (2004). ↩

4. 4.

   Rome Statute of the International Criminal Court, art. 27, July 19, 1998, 2187 U.N.T.S. 3 [hereinafter Rome Statute]. ↩

5. 5.

   An argument could be made that because the language of art. 27 refers broadly to “all persons” without reference to “parties”, art. 27 was intended to apply to all individuals in all states, regardless of whether they are a party to the Rome Statute. However, despite the broad language of art. 7, art. 98 specifically considers and accords deference to immunities of individuals in non-party states. ↩

6. 6.

   Frederic Megret, In Search of the ‘Vertical’: An Exploration of What Makes International Criminal Tribunals Different (And Why), October 9, 2008, available online. ↩

7. 7.

   Id. ↩

8. 8.

   The Nuremberg Trial, 6 F.R.D. 69, 120 (1946). (“He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state if the state in authorizing action moves outside its competence under international law.”) ↩

9. 9.

   Prosecutor v. Slobodan Milosevic, Decision on Preliminary Motions, Case No. IT-99-37-PT, T. Ch. III, 8 Nov. 2001, para. 26. ↩

10. 10.

    Statute of the International Tribunal for the Former Yugoslavia art. 7, para.2, U.N. Doc. S/RES/827 (May 25, 1993) [hereinafter ICTY Statute]. ↩

11. 11.

    Slobodan Milosevic, supra note 27, para. 28. ↩

12. 12.

    Id. at paras. 29-33. ↩

13. 13.

    Id. at para. 33. ↩

14. 14.

    See generally Prosecutor v. Milosevic, Indictment, No. IT-99-37 (May 22, 1999); Prosecutor v. Charles Taylor, Indictment, No. SCSL-03-01-PT (Mar. 7, 2003). ↩

15. 15.

    As a practical matter, neither Milosevic nor Taylor were arrested and brought to trial until after he had stepped down from power. ↩

16. 16.

    The clash between the principles behind personal immunity and principles of international criminal law is complicated. While personal immunity may be necessary to preserve the essential functions of a state, allowing such immunity may become impunity for the very worst offenders who maintain head-of-state status for life. However, because no precedent case exists for prosecuting a sitting head of state, the current state of customary international law regarding personal immunity is less clear than with functional immunity. ↩

17. 17.

    S.C. Res. 1593, para. 2, U.N. Doc. S/RES/1593 (Mar. 31, 2005). ↩

18. 18.

    As noted in Section II, under customary law, violations of international law are not protected state acts; thus, even in the horizontal context, the principles behind functional immunity are not relevant here and do not grant protection. ↩

19. 19.

    Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3, para. 58 (Feb. 14). ↩

20. 20.

    Id. ↩

21. 21.

    S.C. Res. 1593, supra note 17. ↩

22. 22.

    ICTY Statute, art. 7, para 2. ↩

23. 23.

    Statute of the Special Court for Sierra Leone art. 6, para. 2, U.N. Doc. S/RES/1315 (Aug. 14, 2000). ↩

24. 24.

    Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) paras. 439-450 (Feb. 26, 2007). ↩

25. 25.

    This solution is dependent upon how the ICC fits into the “international penal tribunal” def’n under the Genocide Convention, which goes beyond the scope of this comment. ↩