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The Immunity of Heads of States of Nonparties in the Early Years of the ICC

  • Dapo Akande (a1)
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More than any other international criminal tribunal, the International Criminal Court (ICC) has, in its early years, pursued cases against heads of state. The Court issued arrest warrants for President Omar al Bashir of Sudan and for Muammar Gaddafi while he was Libya's head of state, and it charged Uhuru Kenyatta shortly before he became head of state of Kenya. These attempts to prosecute heads of states have not only led to tensions between the Court and the African Union,1 but also pit the desire to hold senior leaders accountable for grave international crimes against the customary international law principle that certain senior state officials—especially heads of state—have immunity from foreign criminal jurisdiction by virtue of their status, including immunity from arrest and their inviolability when abroad.2

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
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1 See Gino Naldi & Konstantinos Magliveras, The International Criminal Court and the African Union: A Problematic Relationship, in The International Criminal Court and Africa (Charles Chernor Jalloh & Ilias Bantekas eds., 2017).

2 See Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 ICJ Rep. 3, paras. 54–55 (Feb. 14) [hereinafter Arrest Warrant Case]; Draft Articles 3 and 4 of the Draft Articles on Immunity of State Officials from Foreign Criminal Jurisdiction, Int'l Law Comm'n, Report on Its Sixty-Ninth Session, UN Doc. A/72/10, at 175 (2017). See generally Dapo Akande & Sangeeta Shah, Immunities, International Crimes and Foreign Domestic Courts, 21 Eur. J. Int'l L. 815 (2010).

6 See also Dapo Akande, International Law Immunities and the International Criminal Court, 98 AJIL 407, 423-26 (2004) (arguing that Article 27 also addresses the horizontal level by removing immunity of officials of states parties in the territory of other states parties); Bashir Malawi/Chad Decision, supra note 4, at para. 18 (adopting this view); Bashir South African Decision, supra note 4, at paras. 71–81 (same).

7 Bashir Arrest Warrant Decision, supra note 4, para. 41.

8 Rome Statute of the International Criminal Court art. 1, July 17, 1998, 2187 UNTS 3 [hereinafter Rome Statute].

9 Vienna Convention on the Law of Treaties art. 31(3)(c), May 23, 1969, 1155 UNTS 331.

11 Bashir Malawi/Chad Decision, supra note 4.

12 See Akande, supra note 3, at 628–31.

13 Arrest Warrant Case, supra note 2.

14 Id. at para. 61 (emphasis added).

15 Prosecutor v. Charles Taylor, Case No. SCSL-03-01-I, Decision on Immunity from Jurisdiction (May 31, 2004).

16 Prosecutor v. Blaškić, Case No. IT-95-14-AR108, Decision on the Objection to the Issue of Subpoena duces Tecume (Int'l Crim. Trib. for the Former Yugoslavia, July 18, 1997).

17 Prosecutor v. Krstic, Case No. IT-98-33-A, Decision on Application for Subpoenas, paras. 11–12, Dissenting Opinion (Int'l Crim. Trib. for the Former Yugoslavia, July 1, 2003).

18 Bashir Malawi/Chad Decision, supra note 4, at para. 46

19 See Paola Gaeta & Patryk Labuda, Trying Sitting Heads of State: The African Union Versus the ICC in the Al Bashir and Kenyatta Cases, in The International Criminal Court and Africa, supra note 1, at 138, 146–47.

20 See Rome Statute, supra note 8, art. 121(5).

22 See Gaeta & Labuda, supra note 19, at 147–48.

23 See the relevant legislation of the United Kingdom, Malta, Ireland, and Samoa.

24 Bashir Malawi/Chad Decision, supra note 4, at para. 44.

26 See Dapo Akande, The Legal Nature of Security Council Referrals to the ICC and Its Impact on Al Bashir's Immunities, 7 J. Int'l Crim. Just. 333 (2009); Dapo Akande, The Impact of the Genocide Convention on the Obligation to Implement ICC Arrest Warrants, in Contemporary Issues Facing the International Criminal Court 77 (Richard H. Steinberg ed., 2016).

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