II. Functional and Personal Immunities Under Customary International Law.

Under customary international law, there are two types of immunities for government officials: functional immunities (ratione materiae), or diplomatic immunities and personal immunities (ratione personae), or head of State immunities. Both types of immunities protect government officials from civil and criminal jurisdiction in foreign national tribunals.1 Functional immunities protect officials indefinitely for conduct committed as part of their official duties in their official capacity.2 The immunity applies even after the official has abdicated his or her official position with that government, so even former officials can invoke functional immunity.3 However the immunity attaches only to acts committed while the person served in his or her official capacity.4 Functional immunity is based on the rationale that diplomats must be able to conduct their work without fear of prosecution in the receiving state, and because their actions are considered acts of the State, not acts of the individual acting on behalf of the State.5 There are however, exceptions. Serious international crimes such as genocide, crimes against humanity, and war crimes do not receive protection under functional immunities because they can never be considered as being part of government duties.6 This is in accord with norms permitting the exercise of universal jurisdiction.7

A small group of senior government officials including heads of State, heads of government, foreign ministers, and diplomats on special mission in foreign States can simultaneously be protected by personal immunities by virtue of their official high-ranking position.8 The immunity attaches to their status or office.9 Absolute personal immunities are accorded to these individuals for acts conducted as part of official duties, as well as any other private acts.10 Personal immunities only apply while these officials hold the applicable high-ranking position.11 Once they abdicate their official position, they are only protected by functional immunity for acts that were committed as part of their official duties while still in office.12 The rationale for personal immunity is to prevent a foreign State from exercising and even abusing jurisdiction over another State’s high-ranking officials, to facilitate the smooth conduct of foreign relations and cooperation between States, and to allow the sending State to function properly under the leadership of its senior representatives.13 Even the issuance of an arrest warrant for such an official, without any steps being take to actually arrest him or her, would be a violation of customary international law.14

Unlike with functional immunities, personal immunities protect senior officials from civil and criminal prosecution in foreign national courts even for international crimes such as war crimes or crimes against humanity.15 However, there seems to be an exception under customary international law for international crimes committed by high-ranking government officials vis-à-vis international tribunals. Even if this is not a universally agreed upon customary international law norm, at the very least it is an emerging customary norm. Jurisprudence in recent international criminal law tribunals provides support for the existence, or at least development, of this norm. This norm has been affirmed in the Arrest Warrant case before the International Court of Justice, (“ICJ”)16 the Charles Taylor case before the Special Court for Sierra Leone,17 the Augusto Pinochet case before the British House of Lords,18 and in the statutes of the Nuremberg Tribunal,19 the International Criminal Tribunal for the Former Yugoslavia,20 the International Criminal Tribunal for Rwanda,21 and the ICC.22 This recent trend in international criminal prosecutions of sitting heads of State shows that derogation from norms requiring personal immunities is permitted for international crimes in international courts.

III. The Tension Between Article 27 and Article 98(1) of the Rome Statute.

There is a tension between Article 27 and Article 98(1) of the Rome Statute. The issue is whether States Parties can cooperate in the arrest of nationals of non-States Parties for whom arrest warrants have been issued, without violating their customary international obligations to provide certain immunities to senior officials of non-States Parties. If the answer is no, as some scholars have suggested, this presents a challenge to arresting those persons.

Article 27 of the Rome Statute supports the existing, or at least emerging, customary international law norm that incumbent senior government officials stand behind personal immunities to avoid being prosecuted for international crimes in international criminal tribunals. Article 27 states:

(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, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. (2) 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.23

One hundred twenty two countries have ratified the Rome Statute to date. They have thereby waived personal immunity for their senior officials who may be subject to jurisdiction under the ICC, and therefore must surrender their nationals, for whom arrest warrants have been issued, to the ICC.24 Nationals of States Parties may not assert personal immunity (or functional immunity) as a substantive defense before the Court, and an individual’s high-ranking government status is not a bar to either the jurisdiction of the Court or a finding of individual criminal responsibility for that person.25 Article 27(1) therefore removes a substantive defense as well as confers jurisdiction. Under Section IX of the Rome Statute, States Parties are also obligated to cooperate with the ICC, including with requests for cooperation and requests for the arrest and surrender of persons subject to arrest warrants.26 When an indicted person of one State Party is on the territory of a second State Party, an arrest warrant has been issued for the indicted person, and the Court has submitted a request for the arrest and surrender of that person to the second State Party, the Second State Party has an obligation to arrest that individual and transfer him or her to the custody of the ICC.

Article 27 should be interpreted as removing immunities with respect to both the ICC and national authorities acting in response to a request for assistance or request for arrest and surrender issued by the Court.27 To find that Article 27 does not remove immunities between States at the national level “would render parts of that provision practically meaningless” and create a serious obstacle to effecting arrests.28 The ICC does not have its own police force so it primarily has to rely on States to voluntarily turn over their nationals who are subject to arrest warrants.29 If the ICC could only rely on securing the custody of suspects by relying on States to waive immunity (in which case Article 27 would not be applicable) and surrender the suspect, or on suspects to voluntarily appear before the Court, the State or suspect would never claim immunity and the Court would never need to apply Article 27 at all.30 Such a result would be contrary to that required by canons of treaty interpretation: “[A] treaty interpreter must read all applicable provisions of a treaty in a way which gives meaning to all of them harmoniously and ‘is not free to adopt a reading that would result in reducing whole clauses or paragraphs of a treaty to redundancy or inutility.’”31

Furthermore, Article 27 must be read to apply between states at the national level because Article 27(2) explicitly applies “under national or international law.” The provision is unambiguous that immunities under national law, as applies by national authorities, shall not be a bar to jurisdiction. This clause “would be redundant unless it was directed at [national] authorities who would otherwise be bound by national law.”32 Hence, Article 27 should be read to remove immunities at the national level between States.

International law scholars and organizations, including the African Union, have argued that Article 98(1) of the Rome Statute provides an exemption to States Parties’ obligation to cooperate with the Court’s requests to cooperate and particularly requests to arrest and surrender suspects, particularly when the suspect is a national of a non-State Party.33 Article 98(1) states that:

[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 customary international law with respect to the State or diplomatic immunity of a person or property of third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.34

Some scholars and organizations interpret “third State” to mean a non-State Party, and “State or diplomatic immunity” to mean personal immunities, or ratione personae, for incumbent senior government officials.35 If “third State” indeed refers to a non-State Party, the only circumstance in which Article 98(1) would practically apply is when the Security Council refers a situation in a non-State Party to the ICC under Article 13(b), thereby conferring jurisdiction of the ICC over nationals of that situation country and implicitly removing personal immunities of senior government officials in accord with Article 27.36 Even if “third State” also includes States Parties, Article 98(1) would not exempt a State Party from arresting a national of a sending State or “third State” that is also a Party, because States Parties have already waived immunity between States Parties under Article 27 when they ratified the Rome Statute.37 A State cannot be acting “inconsistently with its obligations under customary international law” vis-à-vis another State Party if it arrests a national of the second State Party when that individual is on the territory of the first State.38 States Parties actually have an obligation to arrest a national of a State Party for whom a request to arrest and surrender has been issued when that individual is on their territory.39 Hence, “third State” likely refers to non-States Parties.

Scholars and organizations have argued that Article 98(1) requires the Court to refrain from transmitting to States Parties requests for cooperation and requests for the arrest and surrender of a national of a non-State Party, because this would require the State Party to choose between competing obligations under the Rome Statute and customary international law.40 In order to cooperate with the request for arrest and surrender, the State Party allegedly would have to violate its obligations under customary international law that require respecting personal immunities of senior government officials of other States.41 Scholars argue that before issuing such requests for cooperation to States Parties, the Court must first seek to obtain a waiver of immunity from the State of which the indicted person is a national with respect to other States.42 Without the waiver, the request would be invalid and States Parties would not be required to cooperate.43 When the Court has obtained jurisdiction over a national of a non-State Party, there is no violation of international customary law regarding immunities as between the indicted person and/or their property and the Court.44 However, this does not automatically remove obligations regarding certain immunities owed by States Parties to non-States Parties who have not expressly waived immunity by ratification of the Rome Statute.45

However, this interpretation would create the undesirable consequence that senior officials may be immune to arrest, but not from prosecution. This would handicap the work of the Court, particularly regarding Security Council referrals. Not being able to secure the arrests of suspects would frustrate the object and purpose of the Rome Statute to end impunity for those most responsible for the “most serious crimes of concern to the international community.”46 Furthermore, this fails to consider the changing landscape of international law, where an ever-increasing value is placed on the protection of human rights. Especially in a context where national courts often fail to effectively hold perpetrators of international crimes accountable, it is critical for the Rome Statute to be interpreted in such a way that ensures the ICC can be as effective as possible in fulfilling its mandate.

IV. Article 98(1) of the Rome Statute Does Not Provide An Exemption for State Cooperation in the Arrest of Suspects of Non-States Parties and States Are Not In Violation of Competing Customary International Law Norms Regarding Immunities.

There are two primary ways to interpret the relationship between Article 27 and Article 98(1) such that there is no conflict between them. With these interpretations, States Parties are not exempted from cooperating with the Court, and would still be required to cooperate with the Court’s requests to arrest and surrender suspects, including nationals of non-States Parties. The first interpretation is that non-States Parties, over which the International Criminal Court has jurisdiction on the basis of a Security Council referral, should be treated as States Parties. The second way to interpret Article 98(1) to avoid a conflict is to read “State and diplomatic immunity” as not including personal immunities for heads of State, along with the secondary analysis that (a) customary international law no longer accords heads of State absolute immunities even before international tribunals or (b) customary international law norms regarding accountability for international crimes trump customary norms to provide personal immunities.

A. Non-States Parties Over Which the International Criminal Court Has Jurisdiction Should Be Treated As States Parties.

As several scholars have argued, a Security Council referral of a situation in a non-State Party implicitly makes the Rome Statute, including Article 27, binding on that State, and the State should be treated as a State Party.47 As argued above, questions regarding obligations to cooperate with the Court under Article 98(1) will ordinarily arise when the Security Council refers a situation in a non-State Party to the Court and thereby confers jurisdiction under Article 13(b) of the Rome Statute.

By referring the situation in Darfur to the ICC, the Security Council “intends the Court to take action (to investigate and prosecute as appropriate)…in accordance with the statutory framework provided for in the [Rome] Statute.”48 Because any investigation and prosecution done by the Court must be within the statutory framework of the Rome Statute, all States, including non-States Parties, must accept that the Court will act in accordance with this governing framework.49 When the Security Council refers a situation to the Court, the referred State is bound by Article 25 of the United Nations Charter and implicitly by the relevant Security Council resolution to accept any decisions and requests of the Court.50 This puts the State “in an analogous position to a Party to the Statute.”51

Accordingly, the referral of a situation to the ICC does more than to confer jurisdiction of the Court over the situation.52 Article 27 applies and immunities are removed between the indicted person and the Court, as well as between States at the national level.53 “This lack of immunity then means that under Article 98, a State Party to the [Rome] Statute would not be acting ‘inconsistently with its obligations under international law by arresting and surrendering’” a national of a non-State Party to the ICC in response to a request to arrest and surrender the individual.54 This means Article 98 does not apply, as it does not apply between States Parties, and States Parties must cooperate with the Court with regard to cases in that situation.55 States Parties must comply with requests for assistance regarding the arrest and surrender of indicted persons, the freezing and seizure of assets, or other forms of assistance. It must be regarded as binding for all States Parties to treat the non-State Party in question as a State Party and to cooperate in “the effective prosecution of the most responsible persons” who are nationals of that State.56

Furthermore, Article 98 is not a provision allowing States Parties to refuse to cooperate with the Court, rather it is a directive to the Court to avoid issuing requests for cooperation in the first place that would require States Parties to choose between competing norms.57 Accordingly, “States cannot be allowed to decide unilaterally that the Court has acted ultra vires and to attach to such determination the consequences they deem fit…[T]he Court should itself examine whether a request for cooperation would require a State to act inconsistently with its obligations under international law…”58 Hence, even where States are forced into a situation where they have to choose between competing obligations, they do not have the right not to cooperate with the Court.

B. The “State and Diplomatic Immunities” Under Article 98(1) Do Not Include Head of State Immunities.

Another approach to interpreting Article 98(1) to avoid a conflict with Article 27, as Dire Tladi has argued, is to read the phrase “State or diplomatic immunity of a person or property” in Article 98(1) as not encompassing “personal immunity” for heads of State.59 There is no guidance in the Rome Statute itself about the meaning of “State or diplomatic immunity.” The ICJ and the International Law Commission (“ILC”) have distinguished between forms of immunity for diplomats and heads of State. Additionally, a restrictive reading of the phrase “State or diplomatic immunity” is reasonable.

In the ICJ’s Arrest Warrant case, the ICJ recognized the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations as instructive on the functional immunities of diplomats under customary international law.60 But the ICJ noted that these conventions do not “contain any provision specifically defining the immunities enjoyed by Ministers for Foreign Affairs,” heads of State, or other senior officials—or in other words, personal immunities.61 The ICJ thereby distinguished “diplomatic immunities,” or functional immunities guaranteed in these two Conventions from “head of State immunities,” or personal immunities.62 The dissenting opinion in the Arrest Warrant case by Judge Van den Wyngaert further highlights the difference between “‘individuals holding diplomatic status’ or diplomats and ‘ministers of foreign affairs.’”63 Diplomats are sent to a receiving State to reside and carry out their duties in the receiving State to facilitate foreign relations between the sending State and the receiving State.64 The receiving State also has the power to accept a diplomat or reject him or her as persona non grata.65 As discussed above, the rationale for functional immunities for these diplomats is to allow them to carry out their official duties without fear of prosecution. This is different from heads of State and foreign ministers, over whose appointment foreign countries have no control.66 Heads of State and foreign ministers furthermore, do not carry out their primary duties in a receiving State. Personal immunities accorded such high-ranking officials serve a different purpose—if these officials were subject to civil or criminal jurisdiction in another country this would prevent their home State from functioning entirely and would prevent the home State from engaging in any foreign relations with any country. This is not the case with diplomats who can be rejected as persona non grata. Additionally, in the Mutual Assistance case, the also ICJ “makes a clear distinction between state immunity, diplomatic immunity and ‘other personal immunities’ with the latter referring to” ratione personae accorded only to the most senior government officials.67 Hence, the jurisprudence of the ICJ supports the interpretation that the phrase “diplomatic immunities” expressed in Article 98(1) of the Rome Statute refers to functional immunities, not personal immunities.

The ILC, in its Draft Articles on Diplomatic Discourse and Immunities (“Draft Articles I”) implicitly distinguished “diplomatic immunities,” or functional immunities, from “head of State immunities,” or personal immunities.68 In these Draft Articles I, “diplomatic immunities” referred solely to members of diplomatic missions in a receiving State to represent the sending State, including Embassy and Consulate staff such as an Ambassador, Chargé d’Affaires, and other supporting diplomatic staff. Nowhere in the Draft Articles I did the ILC discuss personal immunities or other immunities for heads of State or foreign ministers. The Draft Articles I are clear that “diplomatic immunities” refer to functional immunities. In addition, in the ILC’s Draft Articles on Jurisdictional Immunities of States and their Property (“Draft Articles II”), the ILC also distinguished between diplomatic immunities accorded to “persons connected” with a State’s “diplomatic missions, consular posts, special missions, missions to international organizations, or delegations to organs of international organizations or to international conferences,” and personal immunities accorded to “Heads of State.”69 Hence, the ILC’s analyses of immunities further supports the interpretation that the phrase “diplomatic immunities” expressed in Article 98(1) of the Rome Statute refers to functional immunities, not personal immunities.

As Tladi has further argued, State immunity referred to in Article 98(1) also does not include personal immunity for heads of State.70 Under the ILC’s Draft Articles II, State immunity refers to the right of the State and its property to be free “from the jurisdiction of the courts of another State.”71 The Draft Articles II also clearly states that they do not apply to functional or personal immunities.72 There is no basis to argue that “State immunity” includes personal immunities for sitting heads of State.73

Tladi has further argued that Article 98(1) narrowly refers to functional diplomatic and State immunities, not to personal immunities, with the view that nothing should be read into the treaty provisions that is not expressly provided for.74 Recalling the Vienna Convention on the Law of Treaties, “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty…”75 Tladi explains:

If the intention of the drafters was to broadly include all immunities it would be unnecessary to qualify the phrase immunities with ‘state or diplomatic.’ If Article 98(1) does not cover head of state immunity, then it cannot be said that the request to arrest and surrender [a sitting head of state] would require the requested state to act inconsistently with its obligations under customary international law on state or diplomatic immunity. This interpretation of Article 98(1), based on the ordinary meaning of the phrase ‘State or diplomatic immunity,’ is consistent with a contextual interpretation, taking into account Article 27 and the object and purpose of the Statute, namely to end impunity and hold those responsible for the most egregious crimes accountable.76

If the drafters of the Rome Statute had wanted to include personal immunity in the provisions of Article 98(1), they could and would have done so. Furthermore, in looking at the drafting history of the Rome Statute it is evident that States considered “how wide or narrow” the provisions for exemptions from cooperation should be.77 Several States insisted on a “restrictive approach to exceptions” and that any “exceptions should be specifically enumerated.”78 Hence, is can be persuasively argued that Article 98(1) is not in direct conflict with Article 27 when one interprets the phrase “State or diplomatic immunity” in a restrictive manner to not include “personal immunities.”

If one accepts this argument, however, one must also resolve the secondary question of whether a treaty obligation trumps a customary obligation or vice versa.79 Even if Article 98(1) does not include personal immunities and there is no conflict with Article 27, the States Parties still have an independent customary obligation not to arrest a senior government official of another State.80

The first, and most convincing, argument that resolves this issue is that customary international law can be changed. States can erode a customary international law norm by withdrawing consent “or at least modify their consent such that the obligation to respect the immunities of heads of state is inapplicable to cooperation with international tribunals.”81 As discussed above, there is clearly an existing, or at least rapidly emerging, customary international law norm that personal immunities protect senior government officials from being prosecuted for international crimes before international criminal tribunals.82 In addition, the fact that the Rome Statute has been ratified by 122 States—about two-thirds of all States who are members of the United Nations—supports the argument that these norms are changing, and creating an exception for personal immunities concerning international crimes before international criminal tribunals.83 The fact that the Rome Statute also provides for Security Council referrals to confer jurisdiction to the Court over situations in non-States Parties, and that the Security Council, including some of the most powerful nations who are non-States Parties, have referred two situations in non-States Parties to the ICC lends further support. The growth of the field of international criminal justice provides evidence that there is a changing customary norm allowing States to derogate from having to provide personal immunities for senior government officials in order to end impunity for international crimes before international criminal tribunals.

The second argument to resolve States Parties’ competing obligations is that there is a hierarchy of customary international law obligations, and that preventing impunity for violations of jus cogens norms, including prohibitions on war crimes, crimes against humanity, and genocide, trump less important obligations concerning personal immunities.84 It can be argued that accountability for such serious international crimes has risen to the status of erga omnes obligations, and that obligations regarding immunities are less important.85 Therefore, States obligations to cooperate with the ICC according to their treaty obligations under the Rome Statute trump their customary obligations to other States regarding personal immunities.

C. Even If Article 98(1) Exempts States From Cooperation In The Arrest of Non-State Party Nationals, The Security Council Should Require Cooperation in its Referral Resolutions.

Finally, even if one accepts the interpretation of Article 98(1) put forth by the African Union and scholars including Paola Gaeta, there is still one way to resolve the conflict between Article 98(1) and Article 27. Since Article 98(1) would ordinarily apply in the context of Security Council referrals of non-States Parties, the Assembly of States Parties should encourage Security Council members to not only impose obligations on the referred State to cooperate with the Court, but also impose obligations on all United Nations members to cooperate with the ICC with regard to that situation.86 This would bind all United Nations members, especially States Parties, to cooperate with the Court in the arrest and surrender of indicted persons, or provide other forms of assistance, without a concern of violating other competing international customary norms.87 This would implicitly remove personal immunities between States, and thereby eliminate the conflict between competing norms.

V. Conclusion.

There are two ways to interpret the relationship between Article 27 and Article 98(1) to eliminate the tension between them. Non-States Parties, over which the ICC has jurisdiction pursuant to a Security Council referral, can and should be treated as States Parties. Alternatively, the phrase “State and diplomatic immunity” in Article 98(1) can be read as not including personal immunities for heads of State. Interpreting the relationship between Article 27 and Article 98(1) in one of these two ways removes the conflict between them. Either of these two interpretations demonstrates that States are not in fact exempt from cooperating with the Court in the arrest of high-ranking government officials, including nationals of non-States Parties. These interpretations are more in line with the object and purpose of the Rome Statute. Most importantly, these interpretations allow the Court to more effectively carry out its mandate and more effectively secure the arrests of persons suspected of having committed the gravest crimes of international concern.

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

1. 1.

   Dapo Akande, International Law Immunities and the International Criminal Court, 98 Am. J. Int’l L. 407, 409 n.11 (2004) [hereinafter Akande, Immunities] (citing Vienna Convention on Diplomatic Relations, arts. 29, 31, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95 [hereinafter VCDR]; see e.g., Antonio Cassese, When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case, 13 Eur. J. Int’l L. 853, 862-65 (2002). ↩

2. 2.

   Akande, Immunities, supra note 1, at 409, 412 n.38 (citing Chanaka Wickremasinghe, Immunities Enjoyed by Officials of States and International Organizations, in International Law 403 (Malcolm D. Evans ed., 2003); see also VCDR, supra note 1, at art. 39(2) (in relation to former diplomats); Vienna Convention on Consular Relations, art. 43(1), Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 [hereinafter VCCR] (in relation to consular officials)); see Cassese, supra note 1, at 863; Micaela Frulli, The Question of Charles Taylor’s Immunity: Still in Search of a Balanced Application of Personal Immunities? 2 J. Int’l Crim. Just. 1118, 1125 (2004); Steffen Wirth, Immunities, Related Problems, and Article 98 of the Rome Statute, 12 Crim. L. Forum 429, 431 (2001). ↩

3. 3.

   Akande, Immunities, supra note 1, at 412 n.38 (citing Wickremasinghe, supra note 2, at 403; VCDR, supra note 1, at art. 39(2); VCCR, supra note 2, at art. 43(1)). ↩

4. 4.

   Akande, Immunities, supra note 1, at 412-13 n.38. ↩

5. 5.

   Id. at 413 nn.42, 43. ↩

6. 6.

   Id. at 413-15 nn.45, 46, 52, 53, 54; see Andrea Bianchi, Immunity Versus Human Rights: The Pinochet Case, 10 Eur. J. Int’l L. 237, 262-66 (1999); Cassese, supra note 1, at 864-65; Frulli, supra note 2, at 1126; Wirth, supra note 2, at 437; Salvatore Zappallà, Do Heads of State in Office Enjoy Immunity from Jurisdiction for International Crimes? The Ghaddafi Case Before the French Cour de Cassation, 12 Eur. J. Int’l L. 595, 601 (2001). ↩

7. 7.

   Akande, Immunities, supra note 1, at 415 n.56 (citing Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, art. 49, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, art. 50, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Convention Relative to the Treatment of Prisoners of War, art. 129, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Convention Relative to the Protection of Civilian Persons in Time of War, art. 146, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, art. 85(1), Jun. 8, 1977, 1125 U.N.T.S. 609). ↩

8. 8.

   Akande, Immunities, supra note 1, at 409 n.13, 14, 411-12 n.29 (citing Arrest Warrant of 11 April 2000, ¶ 51 (Congo v. Belgium, 41 ILM 536 (Feb. 14, 2002) [hereinafter Arrest Warrant]), 30, 31 (citing VCDR, supra note 1, at arts. 29, 31), 32 (citing Arthur Watts, The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers, 247 Recueil Des Cours 13, 106-08 (1994)), 33 (Arrest Warrant, supra, at ¶ 53); see Cassese, supra note 1, at 864; Frulli, supra note 2, at 1125-26; Wirth, supra note 2, at 432; Hazel Fox, The Law of State Immunity 423, 429 (2002). ↩

9. 9.

   Akande, Immunities, supra note 1, at 409. ↩

10. 10.

    Id. at 410 n.19 (citing Arrest Warrant, supra note 8, at ¶ 54; Fox, supra note 8, at 441); see Cassese, supra note 1, at 863-64; Wirth, supra note 2, at 432. ↩

11. 11.

    Akande, Immunities, supra note 1, at 410; Arrest Warrant, supra note 8, at ¶ 61; Frulli, supra note 2, at 1126; Wirth, supra note 2, at 432. ↩

12. 12.

    Akande, Immunities, supra note 1, at 409; Arrest Warrant, supra note 8, at ¶ 61; Frulli, supra note 2, at 1126; Wirth, supra note 2, at 432. ↩

13. 13.

    Akande, Immunities, supra note 1, at 409-10 n.15 (citing Wickremasinghe, supra note 2, at 389); see Fox, supra note 8, at 427. ↩

14. 14.

    Akande, Immunities, supra note 1, at 410 n.21 (citing Arrest Warrant, supra note 8, at ¶¶ 55, 70-71). ↩

15. 15.

    Akande, Immunities, supra note 1, at 410 n.22,23 (citing Arrest Warrant, supra note 8, at ¶¶ 55, 58). ↩

16. 16.

    Akande, Immunities, supra note 1, at 416 n.59 (citing Arrest Warrant, supra note 8, at ¶ 61) (“[T]he immunities enjoyed under international law…do not represent a bar to criminal prosecution in certain circumstances…[A]n incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction.”). ↩

17. 17.

    Akande, Immunities, supra note 1, at 416 n.60, 61 (citing Prosecutor v. Charles Taylor, Immunity from Jurisdiction, No. SCSL-03-01-I (May 31, 2004)), 62, 63, 65 (“[T]he principle seems now established that the sovereign equality of states does not prevent a Head of State from being prosecuted before an international criminal tribunal or court.”). ↩

18. 18.

    Akande, Immunities, supra note 1, at 416 n.65 (citing Prosecutor v. Charles Taylor, supra note 17, at ¶ 54). ↩

19. 19.

    Id. at 416 n.64. ↩

20. 20.

    Id.; see Prosecutor v. Milosevic, Indictment, No. IT-99-37 (May 22, 1999); Statute of the International Criminal Tribunal for the Former Yugoslavia, art. 7, ¶ 2, S.C. Res. 827, U.N. Doc. S/RES/827 (May 2, 1993), available online ↩

21. 21.

    Akande, Immunities, supra note 1, at 416 n.64. ↩

22. 22.

    Id.; Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute] at art. 27. ↩

23. 23.

    Rome Statute, supra note 22, at art. 27. ↩

24. 24.

    Akande, Immunities, supra note 1, at 420 n.85. ↩

25. 25.

    Id. at 419-20 nn.81 (citing Fox, supra note 8, at 429-30), 82. ↩

26. 26.

    Rome Statute, supra note 22, arts. 86, 87, 89; Paola Gaeta, Expert Comment on Darfur Question, ICC Forum, available online (last visited May 15, 2013). ↩

27. 27.

    Dapo Akande, The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities, 7 J. Int’l Crim. Just. 333, 337-38 (2009) [hereinafter Akande, SC Referrals]. ↩

28. 28.

    Akande, Immunities, supra note 1, at 420-21 n.88; Dire Tladi, The ICC Decisions on Chad and Malawi on Cooperation, Immunities, and Article 98, 11 J. Int’l Crim. Just. 199, 209 (2013); Akande, SC Referrals, supra note 27, at 338. ↩

29. 29.

    Gaeta, supra note 26; Akande, Immunities, supra note 1, at 408, 420 n.84. ↩

30. 30.

    Akande, SC Referrals, supra note 27, at 338. ↩

31. 31.

    Id. at 338 n.18 (citing United States—Standards for Reformulated and Conventional Gasoline, WTO Doc. WT/DS2/AB/R, at 23 (Appellate Body Report, May 1996)). ↩

32. 32.

    Akande, SC Referrals, supra note 27, at 338. ↩

33. 33.

    See Tladi, supra note 28, at 201. ↩

34. 34.

    Rome Statute, supra note 22, at art. 98(1). ↩

35. 35.

    Gaeta, supra note 26; Akande, Immunities, supra note 1, at 425; see Akande, Immunities, supra note 1, at 422-23 for a discussion of the interpretation that “third State” refers to non-States Parties and discussing relevant domestic implementing legislation of the United Kingdom, Malta, and Ireland. Akande, Immunities, supra note 1, at 422-23; see Akande, SC Referrals, supra note 27, at 339 (same). “If it were always the case that Article 27 removes the international law immunity of officials of states even with respect to national authorities of other states, then Article 98 would, in turn, be deprived of all meaning…meaning given to both provisions by making a distinction between immunities accruing to non-parties to the ICC Statute and those accruing to ICC parties…” ↩

36. 36.

    Akande, Immunities, supra note 1, at 417. The Prosecutor can investigate other situations upon his or her proprio motu initiative in States Parties, or when a State refers a situation in another State Party to the Prosecutor. Rome Statute, supra note 22, at arts. 11, 13, 14, 15. The same applies for States who have not ratified the Statute, but have submitted an Article 12(3) declaration submitting to the jurisdiction of the International Criminal Court. Rome Statute, supra note 22, at art. 12(3). Hence, a Security Council referral is the only context in which the Prosecutor could open an investigation into a situation into a non-State Party. ↩

37. 37.

    Gaeta, supra note 26; Akande, Immunities, supra note 1, at 424. ↩

38. 38.

    Akande, Immunities, supra note 1, at 424 n.110 (citing Bruce Broomhall, International Justice and International Criminal Court: Between Sovereignty and the Rule of Law 145 (2003); Paola Gaeta, Official Capacities and Immunities, in The Rome Statute of the International Criminal Court: A Commentary 993-94 (Antonio Cassese, Paola Gaeta & John R. W. D. Jones eds., 2002); Wirth, supra note 2, at 452), 111, 112 (citing Wirth, supra note 2, at 452), 113 (Rome Statute, supra note 22, at art. 98(1)); Akande, SC Referrals, supra note 27, at 339. ↩

39. 39.

    Akande, Immunities, supra note 1, at 425. ↩

40. 40.

    Id. at 419, 420-21 n.87 (citing Broomhall, supra note 38, at 141), 433; Gaeta, supra note 26, at n.17. ↩

41. 41.

    Gaeta, supra note 26; Akande, Immunities, supra note 1, at 421 n.91. This is the argument the African Union has put forth regarding the issuance of arrest warrants for and requests to arrest and surrender Sudanese President Omar Al-Bashir. Gaeta, supra note 26. “In July 2009 the [African Union (“AU”)] Summit adopted the following decision: In view of the fact the [Article 16] request by the African Union has never been acted upon, the AU member states shall not cooperate pursuant to the provision of Article 98 of the Rome Statute of the ICC relating to immunities, for the arrest and surrender President Omar Al Bashir of The Sudan.” Tladi, supra note 28, at 202, 204. While the Court attempted to address these issue in the context of the case against Al Bashir, the Court conflated the issue of whether or not the Court may exercise jurisdiction over a national of a non-State Party, with the issue of whether requiring States Parties to comply with requests to arrest and surrender a national of a non-State Party compels them to “act inconsistently with [their] obligations under customary international law” owed to the non-State Party. See Id. at 205-208 for a discussion and critique of the Court’s opinions on the non-cooperation of Malawi and Chad. The Court failed to focus on the real issue—the scope of a request for cooperation in the context of Article 98(1)—and essentially interpreted Article 98 as if it did not exist. Id. at 206, 207; Göran Sluiter, Expert Comment on Darfur Question, ICC Forum, available online (last visited May 15, 2013); Akande, SC Referrals, supra note 27, at 336-37. ↩

42. 42.

    Gaeta, supra note 26. ↩

43. 43.

    Tladi, supra note 28, at 206; Gaeta, supra note 26; Akande, Immunities, supra note 1, at 433. ↩

44. 44.

    But see Akande, Immunities, supra note 1, at 421-22, 424 n.95 (citing Arrest Warrant, supra note 8, at ¶¶ 70-71), 96 (“This follows from the decision of the ICJ in the Arrest Warrant case, which held that the issuance and circulation of an arrest warrant for a person entitled to immunity violates that immunity even where no subsequent steps are taken.”). ↩

45. 45.

    Akande, Immunities, supra note 1, at 417, 424, 433. ↩

46. 46.

    Rome Statute, supra note 22, at preamble. ↩

47. 47.

    Akande, SC Referrals, supra note 27, at 342, 348; Tladi, supra note 28, at 211; Sluiter, supra note 41. ↩

48. 48.

    Akande, SC Referrals, supra note 27, at 340 n.26. ↩

49. 49.

    Id. at 341. ↩

50. 50.

    Id. at 342. ↩

51. 51.

    Id. at 342. ↩

52. 52.

    Id. at 341. ↩

53. 53.

    Id. at 342; Sluiter, supra note 41. ↩

54. 54.

    Akande, SC Referrals, supra note 27, at 342. ↩

55. 55.

    Tladi, supra note 28, at 211; Sluiter, supra note 41. ↩

56. 56.

    Sluiter, supra note 41. ↩

57. 57.

    Id. ↩

58. 58.

    Id. ↩

59. 59.

    Tladi, supra note 28, at 213. ↩

60. 60.

    Id. at 213-14 n.72 (citing Arrest Warrant, supra note 8, at § 52). ↩

61. 61.

    Id. ↩

62. 62.

    Id. ↩

63. 63.

    Tladi, supra note 28, at 213-14 n.70 (Dissenting Opinion of Judge Van den Wyngaert, Arrest Warrant, at supra note 8, at § 15). ↩

64. 64.

    Tladi, supra note 28, at 213-14. ↩

65. 65.

    Id. at 213-14. ↩

66. 66.

    Id. ↩

67. 67.

    Id. at 213-14 n.73 (citing Case Concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), § 193, ICJ Reports 177 (Jun. 4, 2008). ↩

68. 68.

    Tladi, supra note 28, at 214. ↩

69. 69.

    Id. (citing International Law Commission Draft Articles on Jurisdictional Immunities of States and Their Property, art. 3 (1991), available online (last visited May 16, 2013) [hereinafter Draft Articles II]. ↩

70. 70.

    Tladi, supra note 28, at 215. ↩

71. 71.

    Draft Articles II, supra note 69, at art. 5. ↩

72. 72.

    Id. at art. 3. ↩

73. 73.

    Tladi, supra note 28, at 215 (noting that state immunity could be violated if the court requests cooperation not in the arrest and surrender of an indicted person, but in the freezing of assets or provision of information, noting also that “property qualifies state immunity”). ↩

74. 74.

    Tladi, supra note 28, at 218. ↩

75. 75.

    Vienna Convention on the Law of Treaties, art. 31, May 23, 1969, 1155 U.N.T.S. 331, available online. ↩

76. 76.

    Tladi, supra note 28, at 216. ↩

77. 77.

    Id. at 218 n.94. ↩

78. 78.

    Id. (See “[t]he statement of Peru which stressed the broadest possible cooperation (A/Conf.183/SR.3). Similarly, Austria stated that a ‘mandatory system of cooperation was a prerequisite’ and that ‘any ground for refusal would have to be explicitly enumerated’ (A/Conf.183/SR.4). Japan also stressed the need for a ‘clear definition of the grounds on which a request by the Court’ could be declined (A/Conf.183/SR.20)”). ↩

79. 79.

    Id. at 218. ↩

80. 80.

    Id. ↩

81. 81.

    Id. at 219. ↩

82. 82.

    Id. ↩

83. 83.

    Id. ↩

84. 84.

    Id. at 220. ↩

85. 85.

    Id. at 220 n.102 (Dissenting Opinion of Judge Van den Wyngaert, Arrest Warrant, at supra note 8, at § 28). ↩

86. 86.

    Tladi, supra note 28, at 208; see Akande, SC Referrals, supra note 27, at 343-48. ↩

87. 87.

    Tladi, supra note 28, at 208. ↩