The Legality of the International Criminal Court's Decision against Omar Al-Bashir of Sudan

Abstract

The right of states to freely practice their independence is basic traditional right under international law. It had long been thought that this right could not be practiced fully if heads of state, foreign ministers, and diplomatic agents feared investigation, indictment, and possible arrest in countries other than their own, and for this reason international law gave them the protection of immunity. But in recent years, cases against persons once thought to be immune have been submitted to and accepted by numerous local and international courts. This article will focus on the international realm, and specifically on the arrest warrant issued by the International Criminal Court (ICC) against Sudanese President Omar Al-Bashir in March 2009. This warrant continues to be subject of much controversy, for while Americans and Europeans insist on the legality of the warrant, many Muslim and Arab countries are criticizing it, especially since Sudan was not member of the Rome statute to begin with. As for Sudan itself, it has repeatedly challenged the court's right to charge its sitting president and has refused to acknowledge its jurisdiction over the case, declaring the decision grave breach of Sudan's sovereignty. This article will argue otherwise, showing that the warrant is legal under international law because the case was referred to the ICC by UN security council resolution under chapter VII, making the nonmembership of Sudan irrelevant; the alleged acts on which the charges against Al-Bashir are based constitute international crimes; and the inability or unwillingness of Sudan to investigate the ICC charges in its domestic courts consolidate the jurisdiction of the ICC over the case.THE RIGHT OF IMMUNITYImmunities are procedural rules that arose out of comity and customary international law to act as barrier to the adjudication of disputes, whether at the jurisdictional stage to prevent the court from hearing the case, or at the enforcement stage.1 International law has granted states this privilege to prevent the courts of forum state from passing judgement against an action of foreign state, both to soothe tensions and to enhance interstate relations and benefit, collectively, the community of nations.There are various theories that seek to explain the emergence and nature of state immunity. The representative character theory explains that state immunity arose from the personal sovereignty of the early European monarchs, for in many ways, the state itself was viewed as the personal property of its ruler, and thus it was his personal attributes that gave his state the quality of being sovereign.2 Another theory talks about the rise of state immunity to protect the sovereignty of the state itself, and thus presents it as fundamental right of state under international law. Yet third theory disagrees with this explanation, arguing that immunity is not right but an exception to the jurisdiction of the forum state, since a foreign state cannot be entitled to immunity without the prior existence of jurisdictional anchor to establish the court's competence.3Despite some degree of overlap, state immunity is not synonymous with immunities available to heads of states. A person may have his case dismissed if he files suit against the government of Chue because of lack of jurisdiction, but the same court might hear his case if it is aimed at its head of state and he is accused of serious human rights violation. This article seeks to focus on immunities granted to heads of states. It is not an easy discussion, due to the controversy in the literature with regard to its extent. Two doctrines appear in this context: the and the restrictive doctrines of sovereign immunity.The doctrine of absolute immunity was popular in the i8th and 19th centuries, giving head of state total immunity from law suits in other states, regardless of the nature or purpose of his acts. …