Critiquing immunities of serving Heads of State under Articles 27 and 98 of the Rome Statute of the International Criminal Court: a case study of President Omar al-Bashir warrant of arrest

Gitobu, Imanyara
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Strathmore University
Whether there is an obligation on states to honour requests issued by the International Criminal Court (ICC) to arrest serving or sitting Head of States has been a controversial area of concern given the apparent contradiction between Articles 27 and 98 of the Rome Statute establishing the International Criminal Court (ICC). The problem with which this thesis is concerned with is the internal tensions created by what appears to be contradictory language of the Statute and the differing interpretations which have tended to reduce the effectiveness of the Rome Statute in ensuring accountability and ending impunity. In particular: Do Articles 27 and 98 of the Rome Statute give immunity from arrest of serving Head of States as argued by the African Union in opposition to the issuance of warrant of arrest against President Omar Al-Bashir? To answer the question whether these two provisions of the Rome can be reconciled, the decision of the Pre-Trial Chamber on the Omar Al-Bashir case is examined in the context of scholarly writings, contemporary debates and examination of international cases. The principal argument is that Article 27’s removal of immunity must be interpreted in the context of the rationale forming the basis of the establishment of the International Criminal Court (ICC) by the Rome Statute. This way Article 98’s true intent must be understood. If the International Criminal Court (ICC) is to attain the preambular purpose of ending impunity at the international field then national authorities must be obligated to serve the International Criminal Court (ICC) and this can only be achieved by purposive interpretation of the Rome Statute. In this regard, the thesis examines the application of Article 98 of the Rome Statute in the context of United Nations’ Security Council referrals to the Court with the conclusion being made that the effect of the Security Council referral of the Sudan Case is to be regarded as binding by virtue of Article 27. The thesis concludes by making the case for the interpretation of the Statute in a way that ensures removal of immunities of persons before the International Criminal Court (ICC), notwithstanding status accorded to those individuals by any other statute or practice.
Submitted to the Faculty of Law in partial fulfillment of the requirements for the award of the Master of Laws (LLM)
International Criminal Court, President Omar al-Bashir, Articles 27 and 98