Referrals to the International Criminal Court Under Chapter VII of the United Nations Charter and the Immunity of Foreign State Officials

Erika De Wet

doi:10.1017/aju.2018.13

Abstract

This contribution explores the implications of United Nations Security Council (UNSC) referrals under Chapter VII of the Charter of the United Nations to the International Criminal Court (ICC) for the immunity ratione personae of officials of states that are not party to the ICC Statute. While Article 13(b) of the ICC Statute allows the ICC to receive referrals of situations by the UNSC, disagreement remains among authors as to when such a referral removes the customary immunity attached to a head of state of a nonstate party to the ICC Statute. In particular, it remains disputed whether the broad obligation placed on Sudan by UNSC Resolution 1593 (2005) had the implicit effect of doing so. In referring the situation in Darfur (Sudan) to the ICC under Chapter VII of the UN Charter, the UNSC determined that “the government of Sudan, and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the prosecutor pursuant to this resolution.”

Highlights

Subsequent to the adoption of this resolution, the International Criminal Court (ICC) prosecutor issued an arrest warrant for President Bashir of Sudan
While Article 13(b) of the ICC Statute allows the ICC to receive referrals of situations by the United Nations Security Council (UNSC),[2] disagreement remains among authors as to when such a referral removes the customary immunity attached to a head of state of a nonstate party to the ICC Statute
Article 27(2) establishes that “[i]mmunities 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.”[9]. In its July 2017 decision, ICC Trial Chamber II underscored that as far as parties to the Rome Statute were concerned, no immunity would apply to any individual before the ICC itself (“vertically”), and neither would it apply to the national authorities of other state parties (“horizontal”).[10]

Summary

Erika de Wet*

This contribution explores the implications of United Nations Security Council (UNSC) referrals under Chapter VII of the Charter of the United Nations to the International Criminal Court (ICC) for the immunity ratione personae of officials of states that are not party to the ICC Statute.[1] While Article 13(b) of the ICC Statute allows the ICC to receive referrals of situations by the UNSC,[2] disagreement remains among authors as to when such a referral removes the customary immunity attached to a head of state of a nonstate party to the ICC Statute. In order to determine whether this failure to act constituted a violation of the ICC Statute, the question whether the customary immunity of a head of state before foreign national courts constituted a bar against his arrest and surrender was of

AJIL UNBOUND

Purposive Interpretation of UNSC Resolutions

Conclusion