The Arrest Warrant for President al-Bashir: Immunities of Incumbent Heads of State and the International Criminal Court

Abstract

In March 2009, the Pre-Trial Chamber (PTC) of the International Criminal Court (ICC) authorized the issue of an arrest warrant in respect of President al-Bashir of Sudan in relation to the alleged atrocities committed in Darfur. The request for the arrest warrant raised the issue of whether a serving head of state may rely upon immunity under international law to shield themselves from proceedings before international criminal tribunals. The decision was the first occasion on which the question of state immunity has been raised before the ICC and the first time an international criminal tribunal has considered the issue in respect of an incumbent head of state. This article will first consider the current status of head of state immunity in customary international law. It will then assess the applicability of the immunity of heads of state or government before international criminal tribunals, in particular the ICC, before examining the decision of the PTC as to whether the immunity enjoyed by President Bashir precluded proceedings before the ICC. Finally, the article will discuss the obligation of states, including Sudan, to comply with the Court's request for cooperation in the execution of the arrest warrant.