Personal Immunity and President Omar Al Bashir: An Analysis Under Customary International Law and Security Council Resolution 1593

35 Pages Posted: 8 Dec 2011 Last revised: 19 Nov 2013

Date Written: December 6, 2011

Abstract

When the International Criminal Court issued an arrest warrant for President Omar Al Bashir, the court only cursorily reasoned that Al Bashir does not possess personal immunity before the court. Though the court's analysis was lacking, this Comment argues that the court can still arrest and prosecute Al Bashir because he does not possess personal immunity due to reasons not analyzed by the court. This argument rests on the theory that the Security Council removed Al Bashir's personal immunity, not the customary international law-based theory advanced by the court.

This Comment rejects the theory that customary international removes heads of state's personal immunities because this practice lacks sufficient acceptance. And unless the the Security Council supersedes international law, all current heads of state possess inviolate personal immunities that prohibit international tribunals from indicting, arresting, or prosecuting them.

This Comment also argues that the Security Council superseded customary international law by referring the Darfur conflict to the International Criminal Court, thus removing Al Bashir's personal immunities. In Security Council Resolution 1593, the Council granted the International Criminal Court substantial jurisdiction to adjudicate serious violations of international humanitarian law. Whenever the Security Council grants this type of jurisdiction to an international tribunal, it implicitly removes government officials’ personal immunities. Further, the Security Council confirmed this implicit removal of personal immunities by implying that Sudanese officials do not possess personal immunities under the Rome Statute's Article 98(1).

Keywords: international law, international criminal law, international criminal court, darfur, sudan, al-bashir, customary international law, security council, immunity

Suggested Citation

Terzian, Dan, Personal Immunity and President Omar Al Bashir: An Analysis Under Customary International Law and Security Council Resolution 1593 (December 6, 2011). 16 UCLA Journal of International Law and Foreign Affairs 279 (2011), Available at SSRN: https://ssrn.com/abstract=1969195

Dan Terzian (Contact Author)

Duane Morris LLP ( email )

United States

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