International Law Project

Head of State Immunity and International Criminal Law

Subject: International Law

Submitted to: Prof. Vivek Mukherjee

Submitted by: Maladi Pranay

Roll. No: 2018-90

III Year, V Semester

BA. LLB. (Hons.)

NALSAR University of Law, Hyderabad.

 Contents
Introduction................................................................................................................................3

State Sovereignty and Immunity................................................................................................5

Sovereign Equality and Personal and Functional Immunity..................................................5

Personal Immunity vis-à-vis International Criminal Tribunals.............................................6

General Immunity and Specific Exception..............................................................................10

Conclusion................................................................................................................................13
 INTRODUCTION
The creation of the International Criminal Court at The Hague was seen as a victory for the
progressive forces in international law. 1 Both the substantive content of international criminal
law,2 developed from the Nuremberg trials, and subsequently through the jurisprudence of the
International Criminal Tribunal for Former Yugoslavia (ICTY) 3 and the International
Criminal Tribunal for Rwanda (ICTR),4 as well as the process of law making, it was argued,
eroded the primacy of traditional positivistic state-centric view of international law. Indeed
the Rome Statute establishing the International Criminal Court was drafted not just by states,
but by several NGOs.5 However, over its almost two decades of existence, the ICC has come
under severe criticism.6 One strand of criticism has centred on the ICC’s indictments of
African heads of state.7 The African Union has accused the court of disproportionately
targeting African states, and has responded to the indictments and arrest warrants with the
threat of leaving the organisation.8 The second strand of criticism straddles the normative
domain of the limits of the court’s ability to bring to justice to the victims of war crimes and
crimes against humanity. On this count, the ICC recently been a subject of controversy, with
the United States of America imposing sanctions on its Chief Prosecutor, 9 for investigation

1
John Washburn, The Negotiation of the Rome Statute for the International Criminal Court and International
Lawmaking in the 21st Century, 11 PACE INTERNATIONAL LAW REVIEW, 361-368 (1999); Gay J. McDougall,
Decade of NGO Struggle, 11 HUMAN RIGHTS BRIEF, 12-15 (2004).
2
LEILA SADAT, THE INTERNATIONAL CRIMINAL COURT AND THE TRANSFORMATION OF INTERNATIONAL LAW:
JUSTICE FOR THE NEW MILLENIUM (Brill, 2002).
3
Statute of the International Criminal Tribunal for the Former Yugoslavia, UN Doc. S/25704, annex, Art. 7(2),
reprinted in 32 ILM 1192 (1993).
4
Statute of the International Criminal Tribunal for Rwanda, SC Res. 955, annex, UN SCOR, 49th Sess., Res. &
Dec., at 15,Art. 6(2), UN Doc. S/INF/50 (1994).
5
John Washburn, The Negotiation of the Rome Statute for the International Criminal Court and International
Lawmaking in the 21st Century, 11 PACE INTERNATIONAL LAW REVIEW, 361-368 (1999).
6
Douglas Guilfoyle, The International Criminal Court Independent Expert Review: reforming the Court: Part I,
EJIL: Talk! – Blog of the European Journal of International Law (February 7, 2020). The article can be accessed
at <https://www.ejiltalk.org/the-international-criminal-court-independent-expert-review-reforming-the-court-
part-i/>
7
Charles Chernor Jalloh, Reflections on the Indictment of Sitting Heads of State and Government and Its
Consequences for Peace and Stability and Reconciliation in Africa, 7 AFRICAN JOURNAL OF LEGAL STUDIES,
43-59 (2014); Makau W. Mutua, Africans and the ICC: Hypocrisy, Impunity and Perversion in KAMARI M.
CLARKE, ABEL S. KNOTTNERUS, & EEFJE DE VOLDER (ed.s), AFRICANS AND THE ICC: PERCEPTIONS OF
JUSTICE, 47-60 (2016); Brendon Cannon, et al., The International Criminal Court and Africa: Contextualizing
the Anti-ICC Narrative, 2 African Journal of International Criminal Justice, 6-28 (2016).
8
BBC Correspondent, African Union backs mass withdrawal from ICC (1 st February, 2017).
<https://www.bbc.com/news/world-africa-38826073>; Theresa Reinold, African Union v International
Criminal Court: episode MLXIII (?), EJIL: Talk! – Blog of the European Journal of International Law (March
23, 2018). The article can be accessed at <https://www.ejiltalk.org/african-union-v-international-criminal-court-
episode-mlxiii/>
9
BBC Correspondent, International Criminal Court officials sanctioned by US (2 September, 2020)
<https://www.bbc.com/news/world-us-canada-54003527>
into war crimes committed in Afghanistan, involving American forces. 10 Investigations into
war crimes on Palestinian territory by Israeli forces, and in Myanmar and Bangladesh against
the Rohingyas have also drawn the displeasure of non-party states, which have questioned
ICC’s ambit and the legitimacy of the investigations, arguing that they impinge upon state
sovereignty.11

The Al-Bashir saga, called by one close observer as the biggest embarrassment of the ICC, 12
remains the biggest controversy courted till date by the ICC. This is so since it can be situated
at the intersection of the two broad strands of criticism – that of the western hegemonic court
imposing itself on African states, and that of the court’s legitimacy when its investigations
involve non-party states (such as the USA, Israel), in this case, South Sudan. The ICC’s
involvement in the Al-Bashir case in fact stretches back to the last decade. The long-standing
controversy features several African countries playing dramatis personae, refusing to execute
arrest warrants, condemning the neo-colonial ICC, all of this with Omar Al Bashir travelling
across and beyond the continent,13 in the face of a Security Council resolution referring the
events of Darfur, Sudan to the ICC.

Thus, the ICC’s tryst with Al-Bashir is the perfect case of two competing conceptualizations
of international law conflicting with each other. On the one hand is the traditional posivistic
view of state sovereignty, manifesting itself in the form of immunity in this case, and on the
other is the progressive “fight against impunity” 14 challenging the former’s immunity as the
embodiment of state sovereignty. This tension between the two conflicting jurisprudential
bases of international law is, I argue, manifested in the method of argument, and each side’s
conceptualisation of the purpose of international law.

This paper thus seeks to examine the case of Omar Hassan Ahmad al-Bashir, which has now
come to be equated with the question: Can heads of state (or heads of government and foreign

10
Al Jazeera Team, ICC authorises investigation into alleged Afghanistan war crimes (5 March, 2020)
<https://www.aljazeera.com/news/2020/3/5/icc-authorises-investigation-into-alleged-afghanistan-war-crimes>
Last accessed 18th October, 2020.
11
TOI Staff, Netanyahu hails Trump for announcing sanctions against ‘corrupt’ ICC (11 June 2020)
<https://www.timesofisrael.com/netanyahu-hails-trump-for-announcing-sanctions-against-corrupt-icc/> Last
accessed 18th October, 2020
12
WILLIAM A SCHABAS, THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY ON THE ROME STATUTE
(2nd Edition, Oxford University Press) 594. Schabas says: “Bashir’s status as an itinerant international scofflaw
has humiliated the International Criminal Court”.
13
Al-Bashir even visited India, amid calls for India to revoke its invitation, and his arrest.
14
CHIRSTOPHER SOLER, THE GLOBAL PROSECUTION OF CORE CRIMES UNDER INTERNATIONAL LAW (Springer
2019); ELLEN L. LUTZ & CAITLIN REIGER (ED.S), PROSECUTING HEADS OF STATE (CAMBRIDGE UNIVERSITY
PRESS, 2011).
ministers)15 be tried for international crimes before international tribunals? This short paper
seeks to explore different ways to affirmatively answer the question, and the strengths and
pitfalls of each of these ways.

STATE SOVEREIGNTY AND IMMUNITY

SOVEREIGN EQUALITY AND PERSONAL AND FUNCTIONAL IMMUNITY

Equality of states is the corollary to sovereignty, 16 historically expressed by the maxim par in
parem non habet imperium.17 The abstract notion of state sovereignty itself entailing equality
of states renders, both normatively and practically, the subjection of the head of state of one
sovereign nation to the municipal law of the other impossible, 18 without the explicit consent
of the other state. This is so, through the legal fiction that the head of state is seen as a
physical embodiment of the abstract state. 19 In recent times, state practice has extended such a
characterisation of personality to heads of government and foreign ministers 20 (though some
scholars disagree, arguing that the need to grant foreign ministers sovereign immunity is
grounded more in practical reasons, rather than viewing them as embodiments of the abstract
state itself;21 as far as heads of government are concerned, especially where heads of state is
only a formal constitutional designation, there seems to be consensus in state practice that
heads of government also enjoy sovereign immunity 22). All in all, the ILC conclusively notes
that the threesome enjoy personal immunity. 23 It is also crucial to note that state practice does
not admit of such immunity to other important ministers, such as that of defence. 24 Personal
immunity, or immunity ratione personae, is to be distinguished from functional immunity, or
immunity ratione materiae. The latter extends to a wide range of actors acting on the

15
The reason for the particular emphasis on these three designations will be evident in the subsequent sections.
16
Article3, Draft Declaration on the Rights and Duties of States, ILC Year book 1949, 287.
17
JAMES CRAWFORD, BROWNLIE’S PRINCIPLES OF INTERNATIONAL LAW (8th edition, Oxford University Press)
448.
18
MALCOLM N SHAW, INTERNATIONAL LAW (6th edition, Cambridge University Press) 697-699.
19
Ibid.
20
Memorandum by the Secretariat, Immunity of State officials from foreign criminal jurisdiction, International
Law Commission, A/CN.4/596.
21
D. S. Koller, Immunity of foreign ministers: Paragraph 61 of the Yerodia judgment as it pertains to the
Security Council and International Criminal Court”, 20 American University International Law Review, 7-42
(2004).
22
Memorandum by the Secretariat, Immunity of State officials from foreign criminal jurisdiction, International
Law Commission, A/CN.4/596.
23
Roman Anatolevich Kolodkin (Special Rapporteur), Preliminary report on immunity of State officials from
foreign criminal jurisdiction, International Law Commission, A/CN.4/601, paragraph 111. This is reinforced by
a reading of the Case Concerning Arrest Warrant between Belgium and Congo, where the International Court of
Justice considers Foreign Minister at par with both Head of State and Head of Government.
24
The ICJ in the case concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v.
France) held that the Head of National Security of Djibouti did not enjoy personal immunity.
international sphere, on behalf of the state, but does so only for specific acts performed in
official capacity, and ends with their duration of designation. 25 Personal immunity (or
immunity ratione personae) on the other hand extends to all acts while the person is a head of
state or government or foreign minister and continues to extend for that time period, even
after their tenure. Thus, the distinction between personal and functional immunity can also be
seen as the difference between procedural and substantive immunity. While personal
immunity completely bars proceedings forever (procedural immunity), functional immunity
is merely a substantive defence to the actions undertaken in official capacity (substantive
immunity). This, in short, is the concept of sovereign immunity. 26 In this paper, the question
of sovereign immunity that is of concern is personal immunity of heads of state. By now, it is
clear that functional immunity is not a defence to international crimes. 27 This, in fact, has
been the essence of international criminal law, and the concept of individual criminal
responsibility.

PERSONAL IMMUNITY VIS-À-VIS INTERNATIONAL CRIMINAL TRIBUNALS

Customary law in this area by and large evolved through domestic case-law, the locus
classicus being the SCOTUS decision in The Schooner Exchange v. McFaddon,28 due to the
lack of any international treaties on the subject. 29 In 2004, The Convention on Jurisdictional
Immunities of States and Their Property was adopted by the UN General Assembly. 30 Despite
this, the ILC noted that there was no universal international treaty fully regulating the issue of
immunities,31 since the 2004 Convention has not entered into force. Thus, the area continues
to be governed by customary international law, with specific treaties operating as lex
specialis to the customary regime.32
25
EILEEN DENZA, DIPLOMATIC LAW: COMMENTARY ON THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS
(4th edition, Oxford UniversityPress).
26
Draft article 2, paragraph 1 of the 2004 Convention defines immunity as “the privilege of exemption from, or
suspension of, or non-amenability to, the exercise of jurisdiction by the competent authorities of a territorial
State”.
27
Paola Gaeta, Ratione Materiae Immunities of Former Heads of State and International Crimes: The Hissene
Habre Case, 1 J. INT'L CRIM. JUST, 186 (2003); Alexander Orakhelashvili, Immunities of State Officials,
International Crimes, and Foreign Domestic Courts: A Reply to Dapo Akande and Sangeeta Shah, 22 EJIL,
849-855 (2011).
28
7 Cranch 116 (1812).
29
A notable exception is the European Convention on State Immunity, 1972.
30
E. Denza, The 2005 UN Convention on State Immunity in Perspective, 55 INTERNATIONAL AND
COMPARATIVE LAW QUARTERLY, 395 (2006).
31
Roman Anatolevich Kolodkin (Special Rapporteur), Preliminary report on immunity of State officials from
foreign criminal jurisdiction, International Law Commission, A/CN.4/601.
32
H. FOX, THE LAW OF STATE IMMUNITY (New York: Oxford University Press, 2002) 426; A. WATTS, THE
LEGAL POSITION IN INTERNATIONAL LAW OF HEADS OF STATES, HEADS OF GOVERNMENT AND FOREIGN
MINISTERS, Vol 247 Recueil des Cours, 36 (1994). Further, the ICJ noted in the Case Concerning Arrest
Warrant that the Vienna Convention of Diplomatic Relations, the Vienna Convention on Consular Relations,
and the United Nations Special Missions Convention, while providing useful guidance, do not specifically
The important implication of international customary law of sovereign equality developing
through domestic cases and legislations is the fact that the contours of sovereign immunity,
which as noted above is a corollary to the sovereign equality, have not been systematically
reconciled with the emerging sphere of international criminal law. The ensuing confusion is
therefore whether the defence of sovereign immunity applies only against foreign criminal
jurisdiction or international criminal jurisdiction. The practical import of this question is,
quite simply, whether a head of state indicted by the ICC would be immune to the jurisdiction
of the ICC.

A good starting point to answering this question would be the ICJ’s holding in the Arrest
Warrant case. After holding that the foreign minister of Congo was immune from the
jurisdiction of Belgium, and consequently that the international arrest warrant issued by
Belgium violated the customary right of the minister, the court notes that “immunity does not
mean impunity”. In paragraph 61, the court explicitly notes that one avenue of trying the
incumbent foreign minister would be the international criminal court. Given that the case was
about the immunity of the minster from Belgium jurisdiction, the court did seem to suggest
that though he was immune from Belgium (i.e. foreign criminal jurisdiction), his personal
immunity did not extend before the international court. An immediate critique of this has
been that this is mere obiter, 33 and indicative of a general norm, 34 unsupported by specific
state practice and opinio juris. While that is certainly in fact the case, it cannot be denied that
the ICJ stated that sovereign immunity does not extend to international tribunals. Further, in
any event, the court rarely cites practice for arriving at customary norms. 35 The view of the

contain provisions on immunities of ministers. (Cite Arrest Warrant, ¶52).

33
Alexandre Skander Galand, Judicial Pronouncements in International Law: The Arrest Warrant Obiter Dicta
in L. VICENTE AND H.-W. MICKLITZ (EDS), INTERDISCIPLINARY RESEARCH: ARE WE ASKING THE RIGHT
QUESTIONS IN LEGAL RESEARCH? Paper can be accessed at <https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=3049225&download=yes> D. S. Koller, Immunity of foreign ministers: Paragraph 61 of the
Yerodia judgment as it pertains to the Security Council and International Criminal Court”, 20 American
University International Law Review, 7-42 (2004); Claus Kreß & Kimberly Prost, Article 98 in TRIFFTERER
AND AMBOS, THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT – A COMMENTARY (3rd edition,
CH Beck, Hart and Nomos) 2117-2130;Dov Jacobs, The Frog that Wanted to Be an Ox: The ICC’s Approach to
Immunities and Cooperation in CARSTEN STAHN (ed.) THE LAW AND PRACTICE OF THE INTERNATIONAL
CRIMINAL COURT (Oxford University Press, 2015). More generally on ratio-obiter distinction in international
adjudication, see Niccolo Ridi, ‘Mirages of an Intellectual Dreamland’? Ratio, Obiter and the Textualization of
International Precedent, 10 JOURNAL OF INTERNATIONAL DISPUTE SETTLEMENT, 361–395 (2019).
34
W Schabas, The Special Tribunal for Lebanon: Is a “Tribunal of an International Character” Equivalent to
an “International Criminal Court”? 21 LEIDEN JOURNAL OF INTERNATIONAL LAW 513, 513–14 (2008);
Amnesty International, ‘Bringing Power to Justice: Absence of Immunity for Heads of State before the
International Criminal Court’ (2010) 24.
35
Peter Tomka, Custom and the International Court of Justice, 12 THE LAW & PRACTICE OF INTERNATIONAL
COURTS AND TRIBUNALS, 195-216 (2013). More generally, on the ICJ’s methodology towards customary
international law, see Stefan Talmon, Determining Customary International Law: The ICJ’s Methodology
between Induction, Deduction and Assertion, 26 European Journal of International Law, 417–443 (2015); Niels
ICJ, unsupported by practice or otherwise, has been reinforced by the International Law
Commission, in its Preliminary Report on Immunity from Foreign Criminal Jurisdiction by
Special Rapporteur Roman Anatolevich Kolodkin. To quote Kolodkin, “immunity from
international criminal jurisdiction appears to be fundamentally different from immunity from
national criminal jurisdiction”. However, neither the ICJ nor the ILC provides any conceptual
reason for this distinction between foreign and international criminal jurisdiction. One
attempt to do so has been by Professor Claus Kreß who argues that the conceptual distinction
between the two is that the ICC derives its ius puniendi36 from the international community of
states, or alternatively as an organ of the world community. 37 In doing so, the court operates
as a distinct international legal personality, independent of the states which constituted it.
Therefore, sovereign immunities, which apply at the horizontal inter-state level, thus do not
apply before the Court. This argument was accepted by the Appeals Chamber of the ICC
itself, in Prosecutor v. Al-Bashir (Judgment in Jordan Referral),38 (hereinafter Prosecutor v.
Al-Bashir) when the court holds that there is no state practice which supports the existence of
customary head of state immunity before an international tribunal. In doing so, the court’s
approach requires specific state practice for the existence of a customary immunity vis-à-vis
an international court, rather than treating the matter as a narrowly tailored exception (that
applies only to international tribunals) to the general norm of immunity of heads of state.
Thus, the court holds that sovereign immunity applies only inter-states, and not before
international tribunals. Further, Prosecutor v. Al-Bashir is not the first international case law
to hold that sovereign immunity does not apply to international tribunals. In the case of
Charles Taylor, the Special Court for Sierra Leonne reaches the same conclusion when it
holds that it had the jurisdiction to try the former Liberian President Charles Taylor. 39
Reference can also be made to the ICTY’s decision on Slobodan Milosevic, 40 though the
precedential value of the case is somewhat reduced since the court did not consider legal
immunity as an issue.41

Petersen, The International Court of Justice and the Judicial Politics of Identifying Customary International
Law, 28 European Journal of International Law, 357–385 (2017).
36
Kai Ambos, Punishment without a Sovereign? The Ius Puniendi Issue of International Criminal Law: A First
Contribution towards a Consistent Theory of International Criminal Law, 33 Oxford Journal of Legal Studies,
293–315 (2013).
37
Otto Triffterer and Christoph Burchard, Article 27 in TRIFFTERER AND AMBOS, THE ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT – A COMMENTARY (3rd edition, CH Beck, Hart and Nomos) 1037-1055.
38
Judgment in the Jordan Referral re Al-Bashir Appeal, ICC-02/05-01/09-397-Corr.
39
Special Court for Sierra Leone, SCSL-2003-01-I, Prosecutor v. Charles Ghankay Taylor, Decision on
Immunity from Jurisdiction, Appeals Chamber, 31 May 2004, paragraph 52.
40
Prosecutor v. Milosevic´, Decision on Preliminary Motions, Trial Chamber (IT-99-37-PT), 8 November 2001,
para 26.
Thus, conceptually, it is possible to distinguish between sovereign immunity at the horizontal
level vis-à-vis states, and the vertical level against international tribunals. However, there are
arguments against such a reading of customary international law.

First, it can be argued that though Article 27 of the Rome Statute removes immunities,
Article 98(1),42 by preserving immunities of non-state parties, recognises that sovereign
immunity applies before international tribunals. 43 Since the Article requires the consent of the
third state, the argument proceeds, it recognises the applicability of immunities of third states
before the court, treating immunities of state-parties as surrendered through the treaty
operating as lex specialis to the customary norm. However, against this position, Prof. Dire
Tladi argues that what Article 98(1) preserves is “state immunity” and “diplomatic immunity”
which is different from the immunity of the head of state. 44 The former attaches to the state
itself,45 and the latter attaches to diplomatic agents.46 Both of these are, as per Tladi, distinct
from head of state immunity.47 This interpretation is consistent with the travaux
preparatoires of the Rome Statute.48 Further buttressing Tladi’s argument is the fact that the
ICC ruled in Prosecutor v. Al-Bashir that Article 98(1) is a procedural rule which regulates
the ICC’s power to make a request to states, and confers no substantive rights on States.49

41
Claus Kreß & Kimberly Prost, Article 98 in TRIFFTERER AND AMBOS, THE ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT – A COMMENTARY (3rd edition, CH Beck, Hart and Nomos) 2117-2130
42
Article 98(1) of the Rome Statute reads: “The Court may not proceed with a request for surrender or
assistance which would require the requested State to act inconsistently with its obligations under international
law with respect to the State or diplomatic immunity of a person or property of a third State, unless the
Court can first obtain the cooperation of that third State for the waiver of the immunity”.
43
Paola Gaeta, Does President Al Bashir Enjoy Immunity from Arrest?, 7 JOURNAL OF INTL CRIM JUSITCE, 315-
332 (2009); Dov Jacobs, The Frog that Wanted to Be an Ox: The ICC’s Approach to Immunities and
Cooperation, in CARSTEN STAHN (ed.), THE LAW AND PRACTICE OF THE INTERNATIONAL CRIMINAL COURT
(Oxford University Press, 2015) 294; Paola Gaeta, Ch.24.3 Official Capacity and Immunities in PROFESSOR
ANTONIO CASSESE, PROFESSOR PAOLA GAETA, MR JOHN R.W.D. JONES (ed.), THE ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT (Volume 1, OUP) (2002) 975-1010.
44
Dire Tladi, The ICC Decisions on Chad and Malawi on Cooperation, Immunities, and Article 98, 11 JOURNAL
OF INTERNATIONAL CRIMINAL JUSTICE, 215 (2013).
45
JAMES CRAWFORD, BROWNLIE’S PRINCIPLES OF INTERNATIONAL LAW (8th edition, Oxford University Press)
322 (2003); Dire Tladi, The ICC Decisions on Chad and Malawi on Cooperation, Immunities, and Article 98,
11 JOURNAL OF INTERNATIONAL CRIMINAL JUSTICE, 215 (2013); Beth Stephens, Abusing the Authority of the
State: Denying Foreign Official Immunity for Egregious Human Rights Abuses, 44 VANDERBILT JOURNAL OF
TRANSNATIONAL LAW 1172 (2011).
46
JOHN DUGARD INTERNATIONAL LAW: A SOUTH AFRICAN PERSPECTIVE (3rd ed, Juta and Company Ltd, 2005)
257; Leslie Shirin Farhangi, Insuring Against Abuse of Diplomatic Immunity, 38 STANFORD LAW REVIEW 1517
(1986).
47
Arrest Warrant, paragraph 52.
48
Claus Kreß & Kimberly Prost, Article 98 in TRIFFTERER AND AMBOS, THE ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT – A COMMENTARY (3rd edition, CH Beck, Hart and Nomos) 2119; Dire
Tladi, The ICC Decisions on Chad and Malawi on Cooperation, Immunities, and Article 98, 11 JOURNAL OF
INTERNATIONAL CRIMINAL JUSTICE, 217 (2013).
49
Prosecutor v. Al_Bashir, paragraphs 5, 130; ICC Rules, rule 195.
Second, the practise of several African states, which refused to execute the arrest warrant
issued by the ICC, could be taken to mean that states do believe that sovereign immunity
applies before international criminal tribunals. However, it is unclear whether such actions
were backed by opinio juris, or were dictated by political concerns. 50 Further, the position of
the African Union cannot directly be attributed to that of its member states, and in fact, the
position of the African Union Commission was not unanimous among the member states. 51
Finally, the judicial organs of these very states have held that the states have failed in their
international law obligations by not arresting Al-Bashir when in their territories. 52 Neither can
the statements and actions of these actions be completely divorced from the political protest
of the African states against the ICC, and against the Security Council for non-deferral of
proceedings.53

Thus, in conclusion, it can theoretically be argued that sovereign immunity itself does not
operate the international level, and is restricted to foreign state jurisdiction, distinct from
international criminal jurisdiction, though as of now, there is scarce state practice.

GENERAL IMMUNITY AND SPECIFIC EXCEPTION

Another route to argue that heads of state can be tried before international tribunals is to say
accept that, in theory, personal immunity applies not only at the level of foreign jurisdiction,
but also international tribunals, but then, there is a specific exception to the norm: the
International Criminal Court. It is, at the outset, important to distinguish between the two
arguments: the former argues that the very scope of immunity is restricted to foreign state
jurisdiction, and hence does not apply before international tribunals; while the latter argues
that though the scope of immunity extends to both horizontal inter-state jurisdiction, and
vertical international criminal jurisdiction, the international criminal court, is a specific and
narrowly-tailored exception to the general norm of immunity. The difference in both the
arguments is methodological, and revealing of one’s conception of the basis of international
law. The latter argument concedes to the existence of sovereign immunity at all levels, as a

50
Supra note 48.
51
E Keppler, Managing Setbacks for the International Criminal Court in Africa, 56 JOURNAL OF AFRICAN LAW,
4 (2012).
52
The Attorney General v. The Kenyan Section of International Commission of Jurists, Misc Criminal Appeal
No. 685 of 2010. Access the judgement at <http://ncicc.org.ng/wp-content/uploads/2018/02/Page-1-20-
Judgement-Civil-Appeal-105-of-20123-copy.pdf>
53
RAMONA PEDRETTI, IMMUNITY OF HEADS OF STATE AND STATE OFFICIALS FOR INTERNATIONAL CRIMES,
DEVELOPMENTS IN INTERNATIONAL LAW (Brill Nijhoff, 2015) 226. ‘Given the circumstances in which these
decisions were taken, i. e. the current political campaign of African States against the ICC, the legal significance
of these documents is, however, difficult to assess.
given, and hence conforms to the positivistic idea of state-centric international legal order. In
this conception, states are primary and hence, immunity is required for harmonic inter-state
conduct, even when it is through the establishment of international organisations such as the
ICC.54 In this view, immunities exist, as a pre-requisite, for states cannot be subject to any
law, unless explicitly consented to. Further, immunities a priori exist for the practical reason
of inter-state conduct, since if not, heads of state may be subjected to law that their state has
not consented to – foreign or international.

However, despite the existence of immunities, the argument proceeds, there is a customary
exception to such immunities, which is the ICC. Article 27(2) of the Rome Statute reads:
“Immunities or special procedural rules which may attach to the official capacity of a person,
whether under national or international law, shall not bar the Court from exercising its
jurisdiction over such a person.”55 The argument is thus that Article 27(2) is codification of a
customary norm which excludes immunities before international criminal tribunals. The
obiter dicta of the ICJ in Arrest Warrant can be read to support the existence of such a
customary exception, though as noted above, the court does not provide any state practice.
The state practice for the existence of such a customary exception can be found in the
domestic implementing legislations of Rome Statute of countries such as South Africa, 56
Canada,57 Croatia,58 Kenya,59 New Zealand,60 Uganda,61 Burkina Faso,62 Comoros,63
Mauritius,64 Norway,65 Switzerland,66 and France67 among other countries. These countries
recognise in their domestic law that if the ICC issues an arrest warrant, even for an incumbent
54
Paola Gaeta, Ch.24.3 Official Capacity and Immunities in PROFESSOR ANTONIO CASSESE, PROFESSOR PAOLA
GAETA, MR JOHN R.W.D. JONES (ed.), THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT
(Volume 1, OUP) (2002) 975-1010; Paola Gaeta, Does President Al Bashir Enjoy Immunity from Arrest?, 7
JOURNAL OF INTL CRIM JUSITCE, 315-332 (2009).
55
Article 27(2) thus ousts personal immunity or immunity ratione personae. Article 27(1) on the other hand
ousts functional immunity, or immunity ratione materiae.
56
Section 4 of the South African Act No. 27 of 2002 on the Implementation of the Rome Statute of the
International Criminal Court.
57
Art 18, 1999 Extradition Act, Canada.
58
Art. 6, paragraph 3, of the Croatian Law on the Application of the Statute of the International Criminal Court
and on the Prosecution of Criminal Acts against the International Law on War and Humanitarian Law of 4
November 2003.
59
Article 27. Kenya, Act No. 16 of 2008 on International Crimes.
60
Article 31.1, International Crimes and International Criminal Court Act 2000.
61
Art. 25 1 (a) and (b), Uganda, Act No. 18 of 2006 on the International Criminal Court.
62
Articles 7 and 15.1, Burkina Faso: Act No. 52 of 2009 on the determination of competence and procedures for
application of the Rome Statute of the International Criminal Court by the jurisdictions of Burkina Faso.
63
Article 7(2), Act No. 11-022 of 13 December 2011 concerning the Application of the Rome Statute.
64
Article 4, International Criminal Court Act 2001.
65
Article 2, Act No. 65 of 15 June 2001 concerning implementation of the Statute of the International Criminal
Court of 17 July 1998 (Rome Statute).
66
Article 6, Act on cooperation with the International Criminal Court.
67
Article 627.8, France, Code of Criminal Procedure (under Act No. 2002-268 of 26 February 2002).
head of state (or head of government or foreign minister) of a non-party to the ICC, they
would be under a legal obligation to execute the warrant and transfer the accused to the ICC.
That a hundred and twenty five countries have ratified the Rome Statute is by itself an
indication of the strength of Article 27(2), though, thus far, no non-state party has accepted a
legal obligation to the effect. Further, the principle of immunity not applying before
international tribunals can be found in the Charter of the Nuremberg Tribunal, 68 the Charter
of the International Military Tribunal for the Far East, 69 Statute of the International Criminal
Tribunal for the former Yugoslavia,70 Statute of International Criminal Tribunal for
Rwanda,71 the Statute of the Special Court for Sierra Leone, 72 and the Law on the
Establishment of the Extraordinary Chambers.73 The major interpretive debate, however, is
whether these conventions exclude only functional immunity or personal immunity as well. It
must be admitted that the prevailing scholarly opinion argues that these conventions exclude
only functional immunity,74 though the exception of personal immunity could be an essential
corollary of the absence of any substantive immunity. 75 However, the Pre-Trial Chamber in a
series of cases,76 and the Appeals Chamber of the ICC in Prosecutor v. Al-Bashir (Judgment
in Jordan Referral) have interpreted these conventions to exclude both customary functional
and personal immunities. A further complication is how many of the tribunals cited above are
of truly international character.77 For instance, while the ICTY and the ICTR have been
68
Article 7 of the Charter of the International Military Tribunal of Nuremberg
69
Article 6, Charter of the International Military Tribunal for the Far East.
70
Statute of the International Criminal Tribunal for the Former Yugoslavia, UN Doc. S/25704, annex, Art. 7(2),
reprinted in 32 ILM 1192 (1993).
71
Statute of the International Criminal Tribunal for Rwanda, SC Res. 955, annex, UN SCOR, 49th Sess., Res. &
Dec., at 15,Art. 6(2), UN Doc. S/INF/50 (1994).
72
Article 6(2), Statute of the Special Court for Sierra Leone
73
Article 29, Law on the Establishment of the Extraordinary Chambers.
74
Dapo Akande, International Law Immunities and the International Criminal Court, 98 AMERICAN JOURNAL
OF INTERNATIONAL LAW, 424-428 (2004); Dapo Akande, The Jurisdiction of the International Criminal Court
over Nationals of Non-Parties: Legal Basis and Limits, 1 JOURNAL OF INTERNATIONAL CRIMINAL JUSTICE, 618-
650 (2003); Ilias Bantekas, Head of State Immunity in The Light Of Multiple Legal Regimes And Non–Self-
Contained System Theories: Theoretical Analysis of ICC Third Party Jurisdiction Against The Background Of
The 2003 Iraq War, 10 JOURNAL OF CONFLICT & SECURITY LAW, 21-42 (2005); WILLIAM A SCHABAS, THE
INTERNATIONAL CRIMINAL COURT: A COMMENTARY ON THE ROME STATUTE (2nd Edition, Oxford University
Press).
75
Paragraph 6, United Nations General Assembly, International Law Commission, 48th Session, Commentary
on Art. 7 of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind (1996); RAMONA
PEDRETTI, IMMUNITY OF HEADS OF STATE AND STATE OFFICIALS FOR INTERNATIONAL CRIMES,
DEVELOPMENTS IN INTERNATIONAL LAW (Brill Nijhoff, 2015) 271; Dapo Akande, International Law
Immunities and the International Criminal Court, 98 AMERICAN JOURNAL OF INTERNATIONAL LAW, 424-428
(2004).
76
The Prosecutor v. Omar Hassan Ahmad Al Bashir Decision Pursuant to Article 87(7) of the Rome Statute on
the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with
Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir ICC-02/05-01/09-139; Similar cases
with Chad, South Africa.
77
RAMONA PEDRETTI, IMMUNITY OF HEADS OF STATE AND STATE OFFICIALS FOR INTERNATIONAL CRIMES,
DEVELOPMENTS IN INTERNATIONAL LAW (Brill Nijhoff, 2015).
established by the Security Council, and are thus bestowed with an international character, it
can be argued that the Special Court for Sierra Leone and the Extraordinary Chambers of
Cambodia are hybrid, rather than proper international courts. 78 This is important since the
argument is that the customary exception extends to only proper international tribunals. If the
tribunal is in fact not international, it is beyond any doubt that sovereign immunity will bar
proceedings against hybrid or semi-domestic tribunals. The final hurdle to this argument is
the conflicting state-practice of some state-parties to the Rome Statue, who distinguish
between parties and non-parties, and accept the legal obligation to arrest only heads of states
of parties to the Rome Statute, thereby implying that there is no customary exception to
immunities, rather immunities of state-parties to the Rome Statute are waived through the
Rome Statute operating as lex specialis to the customary regime.79

Whether the practice cited above would meet the standard laid down by the ICJ in the North
Sea Continental Shelf case is unclear. Not much progress has been made on the African
Union’s request for an advisory opinion of the ICJ on this issue. Thus, the exact position of
head of state immunities vis-à-vis the ICC are, as of now, complex and unclear. However, it
is amply clear that the direction that international law is moving towards would admit of a
customary exception to immunities before the ICC. Whether this would, as the ICJ says in
Barcelona Traction,80 create an “atmosphere of confusion and insecurity” is the question that
the changing international order is confronted with.

CONCLUSION
This paper has focussed on the intersection of international criminal law and the immunities
of head of state. Specific emphasis has been placed on the scope of sovereign immunity and
the debate over the existence of a customary exception to immunities before the ICC. The
above two are not exhaustive of the layers of debate on the issue of immunities and
international criminal law. However, the status of immunities for violations of peremptory
norms,81 and the conflict between immunities and the customary humans rights right to
remedy, though related to the arguments mentioned in the paper, are beyond the scope of this
paper.
78
Ibid.
79
Article 6(1), Ireland 2006 International Criminal Court Act No. 30; Sec. 3(3)(c), Australia’s Foreign States
Immunities Act, 1985; Section 2, State Immunity Act, 1985 (Canada).
80
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Preliminary Objections, ICJ
Reports 1964.
81
Alexander Orakhelashvili, Immunities of State Officials, International Crimes, and Foreign Domestic Courts:
A Reply to Dapo Akande and Sangeeta Shah, 22 EJIL, 849-855 (2011).
I have sought to argue that there are two routes to exclusion of immunities before the ICC:

First, by restricting the very scope of immunities to foreign domestic jurisdiction, by drawing
a sharp distinction between the nature of national and international criminal jurisdiction.
While the approach fits within the theoretical framework of international criminal law,
development of customary law through domestic laws and court-decisions, and lack of
international state practice on the intersection of immunity and international criminal law has
rendered the scope of immunity unclear.

Second, by arguing that though immunities pervade all spheres of jurisdiction, there is a
specific exception, in the form of the International Criminal Court. Conflicting state practice,
shoddily reasoned ICC Appeals Chamber rulings, varying interpretations of existing
conventions have cumulatively meant there is a glaring lack of clarity on the issue. However,
it is clear that international law is moving towards recognition of lack of immunities before
international tribunals. The important question is the current position, and how best to move
ahead. For this, one would have to wait for either a comprehensive advisory opinion from the
ICJ or a separate international treaty on the issue, along the lines of the Genocide
Convention, which expressly revokes immunities.82

82
I have not focused on these possible solutions due to lack of space.