States Cooperation in Arresting Senior State Officials and Sitting Heads of State under International Criminal Law: Quo Vadis ICC

Paul S. Masumbe ORCID iD

Issue: Vol.4  No.13  Article 8  pp.1493 -1500
DOI: https://doi.org/10.38159/ehass.20234138 |   Published online 18th December, 2023
© 2023 The Author(s). This is an open access article under the CCBY license (http://creativecommons.org/licenses/by/4.0/).

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Albeit the Rome Statute does not recognise the immunity of incumbent presidents before the International Criminal Court (ICC), prosecuting sitting presidents of non-parties states has become a debacle. Accordingly, despite the decisions of the Supreme Court of Appeal of South Africa and the Pre-Trial Chamber II of the ICC against non-compliance of South Africa and Jordan respectively in the arrest of Al Bashir as the serving President of Sudan, Al Bashir has never been tried even now as a former president because no state is willing to arrest and surrender him. The main defence for not cooperating with the Court is that the serving president, especially of non-states parties still enjoys immunity recognised by customary international law.  Accordingly, while Article 27 of the Rome Statute is not applicable to non-state parties as argued by these states, Article 98 is applicable even though these arguments have been categorically rebutted by the Court. Consequently, since the Al Bashir case remains a prototype for state cooperation and the prosecution of serving heads of state before the ICC, this might become the fate of Vladimir Putin as serving head of state of the Russian Federation. This article used qualitative research methods and argues that without state cooperation in matters of arrest and surrender of sitting heads of state and other senior state officials to the ICC, the court’s effort to realise justice for crimes against humanity will remain largely unsuccessful under international criminal law.

Keywords: State cooperation, Putin’s arrest warrant, Al Bashir case, International Criminal Court, non-state parties to the Rome Statute.

Cases

Southern Africa Litigation Centre V Minister of Justice and Constitutional Development & Others 2015(5) SA (GP).

The Prosecutor v Omar Hassan Ahmad Al Bashir No. ICC-02/05-01/09 OA2 06-05-2019.

The Prosecutor v Omar Hassan Ahmad Al Bashir No. ICC-02/05-01/09-302- 06-07-2017(2017).

The Appeals Chamber Judgment in The Prosecutor v. Omar Hassan Ahmad Al Bashir No. ICC-02/05-01/09 OA2 06-05-2019 [162].

Constitutional Legislations

Rome Statute of the International Criminal Court circulated as document A/CONF.183/9 of 17 July 1998 and came into force on 1 July 2002 (Rome Statute), available at: https://www.icc-int/resource-library. Accessed July 12, 2023.

 

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Paul S. Masumbe (LLD) is a Senior Lecturer & Chair, Research and Higher Degrees, School of Law, and Acting Faculty Chair,  Research and Higher Degrees, Faculty of Law, Humanities and Social Sciences, Walter Sisulu University. His research interests include International Criminal Law, Human Rights, Labour Law, and selected areas of Private Law.

Masumbe, Paul S. “States Cooperation in Arresting Senior State Officials and Sitting Heads of State under International Criminal Law: Quo Vadis ICC.” E-Journal of Humanities, Arts and Social Sciences 4, no.13 (2023): 1493 -1500. https://doi.org/10.38159/ehass.20234138

© 2023 The Author(s). Published and Maintained by Noyam Journals. This is an open access article under the CCBY license (http://creativecommons.org/licenses/by/4.0/).

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