Immunity before foreign and domestic tribunals.

Abstract

Under customary international law, many high-ranking state officials enjoyed exemption from prosecution by foreign criminal or civil jurisdictions for crimes committed. However, with the advent of the International Criminal Court, whether personal immunity as a valid defence exists before international and domestic tribunals remains questionable. This research interrogates the extent to which a sitting head of state charged with an international crime can rely on personal immunity. The study analyses the leading case of the former Sudanese head of state; Al-Bashir from 2009, by the Pre-trial Chamber of the ICC and the involvement of other independent states in this process and the developments made answering the question of whether immunity remains. This study addresses the conflicting tensions that states have faced, not only This study addresses the conflicting tensions that states have faced, not only in terms of articles 27 and 98 of the Rome Statute of the International Criminal Court (hereafter Rome Statute), but also other conflicting obligations which have made successful execution of arrest and prosecution difficult. These include membership of the African Union as well as the lack of capacity and structure of member states to execute such requests. In addition, the fact that heads of state may no longer enjoy immunity, whether personal or otherwise, threatens the very sovereignty of states. Based on the findings of this study, it can be stated that personal immunity accorded to a head of state can no longer be raised as a valid defence before an international tribunal. However, the same cannot be said of foreign domestic tribunals. This study concludes that a sitting head of state charged for breaking the rules of international law can be subjected to the jurisdiction of the any tribunal, more so if the official is said to have vacated the office.