Does President Al Bashir Enjoy Immunity from Arrest?

Abstract

This article discusses whether the International Criminal Court (ICC) has lawfully issued and circulated an arrest warrant against the incumbent head of state of Sudan, Omar al Bashir, and whether its request to the states parties to the Rome Statute to arrest and surrender him is in conformity with the provisions of the Statute. In this article, the argument is made that the rules of customary international law on personal immunities of incumbent heads of state do not apply in the case of the exercise of criminal jurisdiction by an international criminal court; therefore they do not bar the exercise of the jurisdiction of the ICC with respect to an incumbent head of state, even if this individual comes from a state not party to the Rome Statute, like Sudan. However, it is one thing to assert that an international criminal court can ‘lawfully’ issue and circulate an arrest warrant against individuals entitled to personal immunity before national courts, and quite another to say that states can ‘lawfully’ disregard the personal immunity of these same individuals, and surrender them to the requesting international court. This article endeavours to demonstrate that while the ICC arrest warrant is a lawful coercive act against an incumbent head of state, the ICC request to states parties to surrender President Al Bashir is contrary to Article 98(1) of the Rome Statute and it is an act ultra vires. States parties are therefore not bound to comply with this request.