The Continuing Story of the International Criminal Court and Personal Immunities

Abstract

The International Criminal Court has issued a warrant of arrest for the arrest and surrender of the incumbent president of Sudan, AlBashir, holding that his current position as Head of State is not an obstacle for the Court’s jurisdiction. After Chad and Malawi had refused to surrender Al Bashir, the Pre Trial Chamber held these states liable for their failure to comply with the cooperation requests.

This article argues that immunities are fundamentally incompatible with international criminal justice. That position can be sustained by addressing the rationales for personal and functional immunities. Different from what is often contended, these rationales do not diverge very much. Both reflect the intimate relationship between states and their representatives in that the infringement of immunity is considered as an affront to the sovereign power of the state. As international criminal justice by definition entails a partial erosion of the sovereignty of the state, the immunity of heads of states and other high officials cannot be left untouched.

Keywords: International criminal law, immunities, war crimes, crimes against humanity, International Criminal Court, surrender, state sovereignty

JEL Classification: K 33