The International Criminal Court (ICC) may soon indict Omar al-Bashir, the current President of Sudan for war crimes, crimes against humanity and genocide. Yet Head of State immunity, a traditional rule of international law, may prevent the Court from prosecuting the dictator. While Heads of State in office do not enjoy functional (rationae materiae) immunity for their actions because international crimes cannot be official acts, they may enjoy personal (rationae personae) immunity, which covers all acts performed by the Head of State, during or prior to his assumption of office. The Statutes of international criminal courts and their decisions explicitly reject such immunity but a Head of State has never been arrested for international crimes while in power.
The International Court of Justice (ICJ) has enforced the personal immunity of acting senior officials in national cases for international crimes but the Court has not definitively answered whether functional immunity would protect a Head of State tried by an international court with jurisdiction over that official. The ICC is such an international court and its jurisdiction over Bashir is legitimated by the United Nations Security Council’s (UNSC) referral of the Darfur situation to the Court. The Court is also, however, treaty based, and as such it only binds States party to its Statute. The Rome Statute itself is not clear on whether immunity applies. While Article 27 at first suggests all immunities are lifted, Article 98 indicates that officials of non-States Parties to the Statute can rely on personal immunity. The crux of this question is therefore whether inter-State immunity obligations are binding despite the UNSC referral and Article 27 of the Rome Statute.
This paper is therefore organized around the tension between Articles 27 and 98 of the Rome Statute. While Article 27 represents the move away from traditional State sovereignty and dictatorial immunity, Article 98 is evidence of the Statute’s drafters’ necessary concessions to power politics and a State-centric international system. The paper argues that despite implicit or explicit immunity agreements between non-State Parties and State Parties, Bashir’s current position as a Head of State does not make him immune from prosecution.