Immunity from arrest? - An analysis of obligations for State Parties to the Rome Statute to arrest and surrender a Head of State of a state not party to the Statute in a situation referred to the ICC pursuant to a UN Security Council resolution

Abstract: The International Criminal Court (ICC) was created as a compliment to domestic courts in the global fight against impunity. However, customary international law has afforded Heads of State with immunity from prosecution, even for serious international crimes. Some key challenges of international criminal law are to reconcile the competing objectives of maintaining stable international relations, and protecting the sovereignty of States, through immunity rules and ensuring that perpetrators of international crimes are held accountable. These challenges are currently under intense scrutiny. Some State Parties to the Rome Statute of the International Criminal Court (Rome Statute) are refusing to comply with the ICC’s request to arrest Omar Hassan Al Bashir, the incumbent President of Sudan. Bashir is facing charges before the ICC due to a referral by the United Nation Security Council (UNSC) to the ICC of the situation in Darfur, Sudan. Sudan is not a party to the Statute. Therefore, State Parties argues customary international law governs the relationship between them and Sudan. According to the states, this entails that Bashir is entitled to immunity from being arrested, even when the arrest is sought by ICC. The purpose of this thesis was to discuss and analyse the concept of Head of State immunity and the obligation states have to respect such immunity. Immunity rules under customary international law has been analysed in relation to State Party obligations pursuant to the Rome Statute to disregard such immunity when the Court seeks to arrest an incumbent Head of State. The purpose included clarifying which legal regime applies with regards to the allegedly conflicting obligations for State Parties when a situation is before the ICC pursuant to a referral of a situation by the UNSC. As there is no genuine solution of norm conflict in international law, the author has opted for a legal dogmatic method combined with international legal doctrine. As such, interpretation of the relevant sources of law according to established principles has been of focus. In order to provide the most appropriate interpretation of the relevant legal regimes, the thesis includes a historical and political perspective. There is also sufficient evidence African states are not willing to cooperate with the ICC because of political concerns. The development of customary international law governing Head of State immunity entails that personal immunity before domestic courts is absolute. However, the International Court of Justice (ICJ) opened up for an exception which removes personal Head of State immunity before international courts. Incumbent Heads of State has since then been arrested and prosecuted before e.g. the International Criminal Tribunal for Former Yugoslavia, International Criminal Tribunal for Rwanda and the Special Court of Sierra Leone. Scholars have argued that the ICJ suggested there is a new rule under customary international law which removes Head of State immunity before international jurisdiction. The author of this thesis argues that state practice has not yet constituted such exception. Instead, the author argues international courts have applied different legal regimes enabling them to prosecute and arrest incumbent Heads of States. These regimes provide for provisions which make that legal regime prevailing over customary international law. In efforts to solve the issues of non-cooperation in the Bashir case, the ICC’s three-panel Pre-trial Chamber (PTC) has issued decisions against several State Parties. In line with these decisions, the author argues that the legal effect of a UNSC resolution referring a situation to the ICC is that the Rome Statute in its entirety is applicable to that situation. By applying a teleological interpretation of the referral mechanism and Resolution 1593, Sudan should be treated analogously to a State Party under the Rome Statute. Under the Rome Statute, State Parties cannot impose personal immunity as a bar for prosecution. As such, the Rome Statute prevails over customary international law on immunities. It has been argued that removal of immunity before the ICC only applies to its jurisdiction. The author argues it applies also at the national level, when national authorities act in support of the ICC. However, the PTC has been inconsistent in its decisions, applying different legal rationales. Therefore, the legal rationale, to some extent, lacks credibility. This fact opens up for critique and leaves the legal rationale ineffective. The author of this thesis argues against this critique. However, higher authority must address these matters to provide acceptance to the legal rationale in the international community. The ICC’s Appeals Chamber has this opportunity since Jordan appealed the decision on non-cooperation against it. The credibility of the legal rationale is to some extent also dependent on political actions. The Assembly of State Parties to the ICC has called upon State Parties to comply with ICC’s arrest warrant. UNSC is the sole actor involved, which has not taken any measures to either endorse or decline the legal rationale issued by the PTC. Leaving the legal issues to the politically oriented UNSC is neither desirable nor compatible with respect for the rule of law. Therefore, Jordan’s appeal and the future judgment by the Appeals Chamber are crucial for the future practice by the ICC. Specifically, with regards to personal Head of State immunity in situations referred by the UNSC.