Assignment 2
Assignment 2: The immunities of high-ranking State officials
Name: ….
Student number: ….
Date: 5 May 2020
Course: Research Seminar International Law (working group 3)
Lecturer: Dr A. Tsampi.
Word count: 1200 words (excluding front-page, footnotes and bibliography)
, Immunities of high-ranking State officials before the ICC: Non-party states
On 31 March 2005 the Security Council (SC) made its first referral to the International
Criminal Court (ICC) by referring the situation in Darfur to the prosecutor of the ICC.
President Al-Bashir of Sudan was the first sitting head of State ever indicted by the ICC.1 In
2009, a Pre-Trial Chamber of the ICC issued an arrest warrant for Al-Bashir.2 Al-Bashir has
since visited various countries, all of which refused to arrest and surrender him to the ICC.
The main reason given as justification was that he possesses immunities under international
law as a Head of State. This legal advice focusses on whether the immunities of nationals
from States that are not party to the Rome Statute (Statute) can be invoked before the ICC.
No immunities before the ICC
Article 27(2) of the Statute states that the Statute shall apply to all persons without any
distinction based on official capacity.3 This provision eliminates both immunity rationae
materiae4 and immunity ratione personae5 attached to the state officials irrespective of their
capacity.6
Article 98(1) of the Statute confirms the customary international immunities of high-ranking
state officials,7 while Article 98(2) reaffirms that the ICC may not request a state party to
surrender someone to the ICC in violation of immunities provided in an agreement with a
third state.8
In the Arrest Warrant case, the International Court of Justice (ICJ) stated that:
1
International Criminal Court, ‘Darfur, Sudan’ ICC-02/05 <https://www.icc-cpi.int/darfur> accessed on 1 May 2020.
2
Warrant of Arrest for Omar Hassan Ahmad Al Bashir, issued on 4 March 2009, Pre-Trial Chamber I, ICC-02/05-01/09.
3
Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) ISBN No. 92-
9227-227-6 (ICCRSt), art 27(2).
4
The scope of the immunity ratione materiae determines the categories of acts covered by the immunity, as mentioned in the
Opinion by Legal Advisory Committee to the Minister of Foreign Affairs of the Republic of Poland on immunities of State
officials from foreign criminal jurisdiction (2015), 3.
5
Immunity Ratione personae attaches to certain office holders during their term of office in order to protect the individual
concerned against any act of authority of another State which would hinder him or her in the performance of his or her duties,
so it defines the person covered by the immunity, as mentioned in Rosanne van Alebeek, ‘Functional Immunity of State
Officials from the Criminal Jurisdiction of Foreign National Courts’ in Tom Ruys, Nicolas Angelet and Luca Ferro (eds), The
Cambridge Handbook of Immunities and International Law (CUP 2019) 496.
6
Fred Nkusi, ‘Immunity of State Officials before the International Criminal Court (ICC): The Indictment of President Al-
Bashir’ (2013) 1(1) Arizona Journal of International and Comparative Law 1, 4.
7
Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) ISBN No. 92-
9227-227-6 (ICCRSt), art 98(1).
8
Erika de Wet, ‘The Implications of President Al-Bashir’s Visit to South Africa for International and Domestic Law’ (2015)
13(5) Journal of International Criminal Justice (JICJ) 1049, 1055.
Assignment 2: The immunities of high-ranking State officials
Name: ….
Student number: ….
Date: 5 May 2020
Course: Research Seminar International Law (working group 3)
Lecturer: Dr A. Tsampi.
Word count: 1200 words (excluding front-page, footnotes and bibliography)
, Immunities of high-ranking State officials before the ICC: Non-party states
On 31 March 2005 the Security Council (SC) made its first referral to the International
Criminal Court (ICC) by referring the situation in Darfur to the prosecutor of the ICC.
President Al-Bashir of Sudan was the first sitting head of State ever indicted by the ICC.1 In
2009, a Pre-Trial Chamber of the ICC issued an arrest warrant for Al-Bashir.2 Al-Bashir has
since visited various countries, all of which refused to arrest and surrender him to the ICC.
The main reason given as justification was that he possesses immunities under international
law as a Head of State. This legal advice focusses on whether the immunities of nationals
from States that are not party to the Rome Statute (Statute) can be invoked before the ICC.
No immunities before the ICC
Article 27(2) of the Statute states that the Statute shall apply to all persons without any
distinction based on official capacity.3 This provision eliminates both immunity rationae
materiae4 and immunity ratione personae5 attached to the state officials irrespective of their
capacity.6
Article 98(1) of the Statute confirms the customary international immunities of high-ranking
state officials,7 while Article 98(2) reaffirms that the ICC may not request a state party to
surrender someone to the ICC in violation of immunities provided in an agreement with a
third state.8
In the Arrest Warrant case, the International Court of Justice (ICJ) stated that:
1
International Criminal Court, ‘Darfur, Sudan’ ICC-02/05 <https://www.icc-cpi.int/darfur> accessed on 1 May 2020.
2
Warrant of Arrest for Omar Hassan Ahmad Al Bashir, issued on 4 March 2009, Pre-Trial Chamber I, ICC-02/05-01/09.
3
Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) ISBN No. 92-
9227-227-6 (ICCRSt), art 27(2).
4
The scope of the immunity ratione materiae determines the categories of acts covered by the immunity, as mentioned in the
Opinion by Legal Advisory Committee to the Minister of Foreign Affairs of the Republic of Poland on immunities of State
officials from foreign criminal jurisdiction (2015), 3.
5
Immunity Ratione personae attaches to certain office holders during their term of office in order to protect the individual
concerned against any act of authority of another State which would hinder him or her in the performance of his or her duties,
so it defines the person covered by the immunity, as mentioned in Rosanne van Alebeek, ‘Functional Immunity of State
Officials from the Criminal Jurisdiction of Foreign National Courts’ in Tom Ruys, Nicolas Angelet and Luca Ferro (eds), The
Cambridge Handbook of Immunities and International Law (CUP 2019) 496.
6
Fred Nkusi, ‘Immunity of State Officials before the International Criminal Court (ICC): The Indictment of President Al-
Bashir’ (2013) 1(1) Arizona Journal of International and Comparative Law 1, 4.
7
Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) ISBN No. 92-
9227-227-6 (ICCRSt), art 98(1).
8
Erika de Wet, ‘The Implications of President Al-Bashir’s Visit to South Africa for International and Domestic Law’ (2015)
13(5) Journal of International Criminal Justice (JICJ) 1049, 1055.
