Head of State Immunity and the Rome Statute: A Critique of the ptc’s Malawi and drc Decisions

The scope and effect of the Head of State immunity doctrine before the International Criminal Court has prompted much discussion following the 2011 decision of the first Pre-Trial Chamber concerning the immunity of serving Sudanese President, Omar Al Bashir. The ptcI held that, as a matter of customary international law, there existed an exception to Head of State immunity where such official is sought by an international court with jurisdiction, here the icc. In an apparent retreat, a differently constituted ptc in 2014 based the inapplicability of such immunity on the terms of Security Council Resolution 1593. Using the 2011 and 2014 ptc decisions as a critical lens, and drawing upon recent material, this article assesses the proper application of Head of State immunity under Article 98(1) of the Rome Statute.

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Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.27 Irrelevance of official capacity/Défaut de pertinence de la qualité officielle

10.1093/law/9780198739777.003.0032 ◽

2016 ◽

Author(s):

Schabas William A

Keyword(s):

International Law ◽

Criminal Law ◽

International Criminal Court ◽

Rome Statute ◽

International Criminal ◽

Criminal Responsibility ◽

Criminal Court ◽

International Criminal Law ◽

Customary International Law ◽

Head Of State

This chapter comments on Article 27 of the Rome Statute of the International Criminal Court. Article 27 consists two paragraphs that are often confounded but fulfil different functions. Paragraph 1 denies a defence of official capacity, i.e. official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall not exempt a person from criminal responsibility under the Statute. Paragraph 2 amounts to a renunciation, by States Parties to the Rome Statute, of the immunity of their own Head of State to which they are entitled by virtue of customary international law. In contrast with paragraph 1, it is without precedent in international criminal law instruments.

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The Denial of the Right of Return as a Rome Statute Crime

Journal of International Criminal Justice ◽

10.1093/jicj/mqaa053 ◽

2020 ◽

Author(s):

Micheal G Kearney

Keyword(s):

International Law ◽

International Criminal Court ◽

Rome Statute ◽

Final Section ◽

International Criminal ◽

Trial Chamber ◽

Criminal Court ◽

Central Importance ◽

Right Of Return ◽

The Right

Abstract In 2018, Pre-Trial Chamber I of the International Criminal Court (ICC) held that conduct preventing the return of members of the Rohingya people to Myanmar could fall within Article 7(1)(k) of the Statute, on the grounds that denial of the right of return constitutes a crime against humanity. No international tribunal has prosecuted this conduct as a discrete violation, but given the significance of the right of return to Palestinians, it can be expected that such an offence would be of central importance should the ICC investigate the situation in Palestine. This comment will review the recognition of this crime against humanity during the process prompted by the Prosecutor’s 2018 Request for a ruling as to the Court’s jurisdiction over trans-boundary crimes in Bangladesh/Myanmar. It will consider the basis for the right of return in general international law, with a specific focus on the Palestinian right of return. The final section will review the elements of the denial of right of return as a crime against humanity, as proposed by the Office of the Prosecutor in its 2019 Request for Authorization of an investigation in Bangladesh/Myanmar.

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The International Criminal Court and the Warrant of Arrest for Sudan's President Al-Bashir: A Crucial Step Towards Challenging Impunity or a Political Decision?

Nordic Journal of International Law ◽

10.1163/090273509x12448190941200 ◽

2009 ◽

Vol 78 (3) ◽

pp. 397-431 ◽

Cited By ~ 2

Author(s):

Manisuli Ssenyonjo

Keyword(s):

International Criminal Court ◽

International Criminal ◽

Charles Taylor ◽

Trial Chamber ◽

Criminal Court ◽

United Nations Security Council ◽

Crimes Against Humanity ◽

Political Decision ◽

Head Of State ◽

International Court

AbstractOn 4 March 2009 the Pre-Trial Chamber I of the International Criminal Court (ICC) held that it was satisfied that there were reasonable grounds to believe that Omar Hassan Ahmad Al Bashir, the president of Sudan, is criminally responsible under Article 25(3)(a) of the Rome Statute as an indirect (co)perpetrator for war crimes and crimes against humanity (but not for genocide). The Chamber issued a warrant for the arrest of Al Bashir making him the third sitting head of state to be charged by an international court following Liberia's Charles Taylor and Yugoslavia's Slobodan Milošević. Since then the ICC has been accused of making a "political decision" and that it is "part of a new mechanism of neo-colonialism". This article examines the ICC's decision against the background of the situation in Darfur. The article concludes that although the ICC decision and warrant cannot be considered political and neo-colonial in nature, the decision and warrant can be criticised as selective. It calls on the ICC to broaden its scope of investigations and for the international community to affirm its support for the ICC and insist that Sudan and other states cooperate fully as required by the United Nations Security Council.

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PROSECUTING PRESIDENT AL BASHIR, AND THE SHORT ARM OF JUSTICE

The Denning Law Journal ◽

10.5750/dlj.v25i1.782 ◽

2013 ◽

Vol 25 (1) ◽

pp. 197-209

Author(s):

Suzanne Bullock

Keyword(s):

International Criminal Court ◽

International Criminal ◽

Legal Reasoning ◽

War Crimes ◽

Trial Chamber ◽

Criminal Court ◽

Crimes Against Humanity ◽

Head Of State ◽

International Court ◽

Heads Of State

Prosecutor v Omar Hassan Ahmad Al BashirIn this decision the Pre-Trial Chamber of the International Criminal Court (ICC) condemned Malawi, as a member state of the ICC, for the failure to comply with the request to arrest and surrender the President of Sudan, Omar Al Bashir. Significantly, the Chamber determined that the traditionally sacrosanct concept of immunity of Heads of State no longer applied before an international court or tribunal. Whilst the intention to create universal jurisdiction over perpetrators of war crimes and crimes against humanity is extremely laudable, the legal reasoning by the Chamber is regrettably unsound. If the decision remains unchallenged, the implication is that no Head of State, whether or not they are a signatory to the ICC, is immune from prosecution on the mere basis of the ICC’s status as an international court.

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THE OBLIGATION TO PROSECUTE HEADS OF STATE UNDER THE ROME STATUTE OF THE INTERNATONAL CRIMINAL COURT (ICC) AND CUSTOMARY INTERNATIONAL LAW: THE AFRICAN AND U.S. PERSPECTIVES

Malaysian Journal of Syariah and Law ◽

10.33102/mjsl.v7i1.112 ◽

2019 ◽

Vol 7 (1) ◽

pp. 33-56

Author(s):

Fareed Mohd Hassan ◽

Noor Dzuhaidah Osman

Keyword(s):

International Law ◽

Rome Statute ◽

The United States ◽

Trial Chamber ◽

Criminal Court ◽

Criminal Prosecution ◽

Customary International Law ◽

Head Of State ◽

Jus Cogens ◽

Heads Of State

The United States (U.S.), a Signatory, but not a State Party to the Rome Statute, entered into various Bilateral Agreements (BIAs) with almost all State Parties to the Rome Statute prohibiting the arrest, surrender, or prosecution of the US Head of State before the International Criminal Court (ICC). Similarly, the African Union (AU) Members, being the majority State Parties to the Rome Statute have decided in the AU Assembly of Heads of State and Government not to cooperate with the ICC and to grant immunity to African Heads of State after the ICC Pre-Trial Chamber issued two arrest warrants against the Sudanese President for allegedly committing genocide, crimes against humanity and war crimes. This paper examines the tension between States’ obligations under the Rome Statute to prosecute, surrender and arrest a head of State, including when referred to by the UN Security Council on the one hand, and the AU decision, the U.S. BIAs and customary international law which grants immunity to a sitting head of State from criminal prosecution by either an international or a foreign court on the other hand. It argues that States are bound by the obligations enshrined under the Rome Statute and both the AU decision and the BIAs are inconsistent with the duty of states to uphold jus cogens norms including those proscribed under the Rome Statute

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Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.98 Cooperation with respect to waiver of immunity and consent to surrender/Coopération en relation avec la renonciation à l’immunité et le consentement à la remise

10.1093/law/9780198739777.003.0103 ◽

2016 ◽

Author(s):

Schabas William A

Keyword(s):

International Law ◽

International Criminal Court ◽

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

Customary International Law ◽

Legal Norms ◽

Coopération Internationale ◽

Military Activity ◽

Judicial Assistance

This chapter comments on Article 98 of the Rome Statute of the International Criminal Court. Article 98 emerged in the context of the debate on grounds to refuse surrender and assistance. The Rome Statute has the potential to conflict with other obligations of States under international law, whether pursuant to customary international law or treaty. In particular, they are required to respect the immunities of diplomats and international officials. States that allow military activity by foreign troops on their territory often have agreements, known as ‘status of forces agreements’ (SOFAs). Article 98 governs these conflicts by, in effect, making obligations of arrest and surrender under the Statute subordinate to other legal norms.

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Part 7 Penalties: Les Peines, Art.80 Non-prejudice to national application of penalties and national laws/Le Statut, l’application des peines par les états et le droit national

10.1093/law/9780198739777.003.0085 ◽

2016 ◽

Author(s):

Schabas William A

Keyword(s):

International Law ◽

Death Penalty ◽

Capital Punishment ◽

International Criminal Court ◽

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

Customary International Law ◽

Final Draft

This chapter comments on Article 80 of the Rome Statute of the International Criminal Court. Article 80 deals with the application by States of penalties prescribed by their national law. The provision was introduced in the final draft, submitted to the Conference early in the day on 17 July 1998, as part of a compromise aimed at calming the objections of a relatively small number of States that had unsuccessfully campaigned to include capital punishment within the range of available penalties in the Rome Statue. Some of these States were concerned that the exclusion of the death penalty would be interpreted as evidence of a growing abolitionist trend internationally and possibly of an emerging norm of customary international law.

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Transformation of Customary Law Through ICC Practice

AJIL Unbound ◽

10.1017/aju.2018.55 ◽

2018 ◽

Vol 112 ◽

pp. 182-186 ◽

Cited By ~ 2

Author(s):

Fausto Pocar

Keyword(s):

International Law ◽

International Criminal Court ◽

Rome Statute ◽

Ad Hoc ◽

International Criminal ◽

Criminal Court ◽

Customary Law ◽

Customary International Law

Article 21 of the Rome Statute, in defining the applicable sources of law for the International Criminal Court (ICC), breaks with the practice of the ad hoc tribunals by treating customary international law as only a secondary authority. Nonetheless, customary international law still has an acknowledged role in ICC jurisprudence in filling lacunae in the Rome Statute and aiding in its interpretation. One can also predict other instances in which the application of customary international law will be required. It remains to be seen, however, whether the ICC's use of customary law will lead to that law's further fragmentation or whether that use will instead modify customary law to reflect the ICC Statute.

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