A Cotemporary Challenge: Immunity of Heads of State

Abstract

The immunity of Heads of State was challenged in the indictment of Omar Al-Bashir, Sudanese President by the International Criminal Court (hereinafter, ICC). While there remains a stunted doubt concerning the understanding that Bashir was guilty of all crimes such as crimes against humanity: murder, extermination, forcible transfer, torture, and rape; two counts of war crimes: intentionally directing attacks against a civilian population as such or against individual civilians not taking part in hostilities, and pillaging; three counts of genocide: by killing, by causing serious bodily or mental harm, and by deliberately inflicting on each target group conditions of life calculated to bring about the group's physical destruction there were questions about his immunity at the ICC. This article sheds light on the issues of immunity of heads of state and the arguments on the indictment of Bashir. The factual matrix and involvement of the United Nations Security Council are relevant because they aid in determining the scope of the ICC jurisdiction. In addition, they also highlight the discourse around the head of state immunity and the need to determine ICC’s role on state immunity when it conflicts with the public international law. As a response to this, the article will highlight the work of the International Law Commission (herein after ILC) around the discourse of immunity as a solution to this contemporary challenge to the jurisprudence of international criminal law.