Debate Map: High-profile prosecutions at the International Criminal Court: heads of state, immunities, and arrests
Last Updated: 4 December 2013
The following index maps scholarly commentary on the international law aspects of a number of high-profile prosecutions at the International Criminal Court, including those of Kenya’s President Uhuru Kenyatta and Deputy-President William Ruto, and Sudan’s President Omar al-Bashir. The map looks specifically at questions of immunity, the obligation to arrest and surrender, the impact of Kenya’s possible withdrawal from the Rome Statute, and Ruto’s and Kenyatta’s obligations to be present throughout their trials. It brings together discussions in English-language legal blogs and a selection of journal articles.
Use this map to review scholarly arguments and to keep track of which issues have been covered and who has said what. For a broad range of online OUP materials on these issues please see the guide on our Home Page.
I. Head of State and Senior Official Immunity from ICC Prosecutions
A) Overviews of legal issues
B) Interpretation of Article 27 of the ICC Statute and the effect of Security Council referral
C) Analysis of specific arrest warrants and decisions
(1) 2004 SCSL decision on Taylor's immunity
(2) 2008 ICTY decision on Karadžić’s immunity
(3) 2009 ICC Bashir arrest warrant
(4) 2011 ICC decision on Bashir’s immunity
(5) 2011 ICC Gaddafi arrest warrant
II. Obligation to Arrest and Surrender the Subjects of ICC Arrest Warrants
A) Overviews of legal issues
B) Interpretation of Article 98 of the ICC Statute
C) Effect of Security Council referral on the obligation to arrest and surrender
D) Effect of genocide charges on the obligation to arrest and surrender
E) African Union states and the obligation to arrest and surrender
F) Arrest in the context of a visit to the General Assembly or other UN forum
G) Arrest and surrender where the accused is being tried by a domestic criminal court (Saif Gaddafi case)
III. Effect of Kenya’s Possible Withdrawal from the Rome Statute on Ongoing Cases
IV. Obligation on the Accused to be Present at the Trial
I. Head of State and Senior Official Immunity from ICC Prosecutions
A) Overviews of legal issues
(i)2004, Dapo Akande in the American Journal of International Law(detailed examination of immunities and the prosecution of senior officials at the ICC
(ii) 1 December 2010, Amnesty International Report (extensive report on the absence of head of state immunity at the ICC and the obligation to arrest and surrender, including a useful summary of relevant decisions and events)
(iii) 28 September 2011, Chris Gevers at Law and War(on how South Africa's, Uganda's and Kenya's legislation implementing the Rome Statute deals with immunities)
B) Interpretation of Article 27 of the ICC Statute and the effect of Security Council referral
Article 27 provides:
“1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.
2. Immunities 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.”
(i) Security Council resolution 1593 of 31 March 2005 (referring the situation in Darfur to the ICC)
(ii) 2009, Sarah Williams and Lena Sherif in the Journal of International Criminal Justice(setting out the effects of Article 27 and questioning whether Security Council referral removes immunities for non-parties)
(iii) July 2009, Dapo Akande in the Journal of International Criminal Justice (arguing that Security Council referral makes Article 27 applicable to non-parties and removes immunities of officials of non-parties)
C) Analysis of specific arrest warrants and decisions
(1) 2004 SCSL decision on Taylor's immunity
(i) Appeal Chamber's 31 May 2004 decision on Taylor's immunity
(ii) July 2004, Micaela Frulli in the Journal of International Criminal Justice (summarizing the SCSL's decision, and reflecting on the different of immunities and their application before national or international courts)
(iii) October 2005, Sarah Nouwen in the Leiden Journal of International Criminal Law(criticising the Appeal Chamber's reliance on controversial elements of the Arrest Warrant case and for the consequences it attaches to the tribunal's international character; suggesting that the Court could instead have reached its conclusion on the basis of the difference between criminal responsibility and procedural immunity.)
(2) 2008 ICTY decision on Karadžić’s immunity
(i)Trial Chamber’s 17 December 2008 decision on Karadžić’s immunity
(ii) 19 December 2008, William Schabas at Human Rights Doctorate (arguing that the Trial Chamber erred in stating that, under customary international law, there is no immunity before an international tribunal for genocide, crimes against humanity, and war crimes)
(iii) 20 December 2008, Dapo Akande at EJIL Talk! (agreeing with Schabas and briefly discussing the role of the Security Council)
(3) 2009 ICC Bashir arrest warrant
(i) Pre-Trial Chamber’s 4 March 2009 decision on the Bashir arrest warrant
(ii)Appeals Chamber’s 3 February 2010 judgment on the Prosecutor’s appeal against the Bashir arrest warrant decision
(iii) 13 February 2010, Dapo Akande at EJIL Talk!(on the failure of the ICC’s Appeal Chamber to address the question of Bashir’s immunity in its arrest warrant decision)
See also Paola Gaeta, Dapo Akande, and Sarah Williams and Lena Sherif in the Journal of International Criminal Justice, discussed elsewhere in this map
(4) 2011 ICC decision on Bashir’s immunity
(i) Pre-Trial Chamber’s 12 December 2011 decision on Bashir's immunity and Malawi’s failure to arrest him
(ii)15 December 2011, Dapo Akande at EJIL Talk! (detailed post criticising the PTC’s statement that customary international law has removed head of state immunity for international crimes prosecuted by an international court, and the Chamber’s interpretation of Articles 27 and 98)
(iii)15 December 2011, Dov Jacobs at Spreading the Jam (also criticising the PTC’s interpretation of Articles 27 and 98, and its approach to identifying customary international law)
(iv) 15 December 2011, William Schabas at Human Rights Doctorate (again criticising the PTC’s reasoning, saying that implies that any head of state could now be prosecuted by any international tribunal, and the fact that no defence counsel submissions were allowed)
(v) 16 February 2012, Chris Gevers at War and Law(detailed assessment and criticism of the decision
(vi) September 2013, Asid Kiyani in the Chinese Journal of International Law (arguing that Bashir's immunity is not overriden by the Security Council or by a supposed exception in the law of state immunity)
(5) 2011 ICC Gaddafi arrest warrant
(i) Pre-Trial Chamber’s 27 June 2011 decision on the Muammar Gaddafi arrest warrant
(ii) 23 May 2011, Dapo Akande at EJIL Talk! (on the legal basis of the removal of Gaddafi’s immunity and the significance of the absence of a reference to arrest and surrender by non-parties in the Prosecutor’s request for an arrest warrant)
II. Obligation to Arrest and Surrender the Subjects of ICC Arrest Warrants
A) Overviews of legal issues
(i) 13 March 2009, Dapo Akande at EJIL Talk! (detailed post setting out the Rome Statute’s legal framework governing arrest and surrender, criticising the PTC for not engaging with Article 98, and analyzing the role of the Security Council referral – also read the comments
(ii)July 2009, Paola Gaeta in the Journal of International Criminal Justice (arguing that the rules of customary international law on heads of state immunity do not apply in cases of the exercise of criminal jurisdiction by an international criminal court, but that this does not mean that states parties can lawfully surrender Bashir to the ICC) (see also Michiel Blommestijn and Cedric Ryngaert in the 2010 Zeitschrift für Internationale Strafrechtsdogmatik, making a similar argument
See also the Amnesty International Report discussed above.
B) Interpretation of Article 98 of the ICC Statute
Article 98 provides:
“1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.
2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender. ”
(i) 10 March 2009, Sarah Nouwen and Mogogo Albanese at African Arguments(criticising the fact that ICC asked non-parties to arrest Bashir and arguing that, in the absence of an explicit Security Council decision to remove Bashir's immunity, the request was not in accordance with Article 98), see also 13 December 2011, Sarah Nouwen at the CJICL Blog (nuancing one point made in the earlier post and, in a comment, reflecting on the Pre-Trail Chamber's decision on Malawi's failure to arrest Bashir)
(ii) 21 July 2010, Dov Jacobs at Spreading the Jam (questioning whether Article 89 relieves states parties from the obligation to arrest and surrender Bashir – see also the comments, and follow ups here and here
(iii) 13 February 2012, Jens Iverson at EJIL Talk! on the significance of the absence of head of state immunity in 98(1)) and 27 February 2012, Dapo Akande at EJIL Talk! responding to Iverson and arguing that head of state immunity is an aspect of state immunity, and therefore is included in 98(1))
(iv) 6 March 2012, Göran Sluiter at iLawyer (criticising the Pre-Trial Chamber’s interpretation of Article 98 in its decision on Malawi’s failure to arrest Bashir and proposing alternative grounds on which the PTC could have reached the same conclusion)
(v) 2012, Jens Iverson in the Goettingen Journal of International Law (on the continuing function and interpretation of Article 98 in light of the Bashir arrest warrant and AU objections)
C) Effect of Security Council referral on the obligation to arrest and surrender
(i)Security Council resolution 1593 of 31 March 2005 (referring the situation in Darfur to the ICC)
(ii)2009, Göran Sluiter in the Journal of International Criminal Justice (inter alia, on the effectiveness of resolution 1593 in relation to uncooperative non-parties)
(iii) 29 November 2011, Dapo Akande at EJIL Talk! (on whether the Security Council referral modifies the obligation to cooperate in the Rome Statute, in the context of the Saif Gaddafi case)
See also Sarah Nouwen and Mogogo Albenese and Dapo Akande in the Journal of International Criminal Justice, discussed elsewhere in this map.
D) Effect of genocide charges on the obligation to arrest and surrender
(i)24 March 2009, Dapo Akande at EJIL Talk! (discussing the ICJ’s Bosnia Genocide decision and arguing that genocide charges would create an additional obligation to cooperate and arrest Bashir, but only for ICC states parties)
(ii) 22 April 2010, Göran Sluiter in the Journal of International Criminal Justice (arguing that genocide charges would create an obligation on non-parties to arrest and surrender Bashir)
(iii) 13 July 2010, Dov Jacobs at Spreading the Jam (disagreeing with Akande on the impact of the ICJ Genocide judgment and the effect of genocide charges on ICC states parties)
(iv) January 2011, Dapo Akande, Paola Gaeta, Makau Mutua, William Schabas, and Goran Sluiter at ICCForum (each offering an answer to the question: What are the obligations of Contracting Parties to the Genocide Convention to implement arrest warrants for genocide issued by the ICC, and of African Union State Parties to implement ICC arrest warrants generally?)
(v)31 January 2011, Dapo Akande at EJIL Talk! summarizing the ICCForum debate and highlighting agreements and disagreements among the commentators)
(vi)6 September 2012, Matthew Gillett on SSRN(arguing that UN member states who are parties to the Genocide Convention have an obligation to arrest and surrender Bashir, even if they are not ICC states parties)
E) African Union states and the obligation to arrest and surrender
(i) 15 September 2010, Max du Plessis at the Institute for Security Studies (on Bashir’s visit to Kenya, and the significance of the African Union’s attitude towards the ICC)
(ii) 4 February 2011, Max du Plessis and Chris Gevers at EJIL Talk! (on the tension between decisions of the African Union and obligations towards the ICC, and a possible way to resolve this)
(iii) July 2013, Max du Plessis, Tiyanjana Maluwa and Annie O'Reilly in a Chatham House report (extensive report looking, inter alia, at the AU's opposition of the ICC and its attempt to establish a regional court to prosecute international crimes)
(iv) 23 October 2013, Dov Jacobs at Spreading the Jam (defending the African Union's position on immunity of sitting heads of state from ICC prosecution and the request for Security Council deferral of the Ruto and Kenyatta Cases)
(v) 28 October 2013, Solomon Ayele Dersso at EJIL Talk! (on the legal implications of decisions taken at the 12 October AU Extraordinary Summit on it's relationship with the ICC). See also Misa Zgonec-Rozej at iLawyer and Dov Jacobs, disagreeing with Dersso on the interpretation of Article 16 on the Rome Statute, here.
F) Arrest in the context of a visit to the General Assembly or other UN forum
(iii) 19 November 2009, Dapo Akande at EJIL Talk! (arguing that Bashir’s immunity as representative of a Member of the United Nations prevails over the ICC arrest warrant, in the context of a Danish invitation to attend the UN Conference on Climate Change)
(iv) 16 September 2013, Julian Ku at Opinio Juris (on the US’ inability to lawfully refuse Bashir a visa, because of its Headquarters Agreement with the UN)
(v) 18 September 2013, Dapo Akande at EJIL Talk! (detailed post on the various reasons why the US can’t—and shouldn’t—refuse Bashir a visa)
(vi) 18 September 2013, Mark Kersten at Justice in Conflict (on whether the US could—and would— arrest and surrender Bashir if he did travel to New York)
(vii) 21 September 2013, William Schabas at Human Rights Doctorate (agreeing with Akande and criticising the PTC’s call on the US to arrest Bashir )
(viii) 25 September 2013, John Cerone at Opinio Juris (advocating that the UN General Assembly waives the US obligation to grant Bashir a visa)
G) Arrest and surrender where the accused is being tried by a domestic criminal court (Saif Gaddafi case)
(i) 23 November 2011, Kevin Jon Heller at Opinio Juris (on the ICC’s confusing provisions on the surrender of an accused when a state is challenging admissibility)
(ii) 23 November 2011, Jens David Ohlin at Lieber Code (setting out the reasons why Libya has to surrender Saif Gaddafi even if it is challenging admissibility) – see also Dapo Akande at EJIL Talk!)
(iii) 11 April 2012, Dapo Akande in the Journal of International Criminal Justice (on the effect of Security Council resolutions on the obligation of the state(s) in question to cooperate with the ICC, and the extent to which this obligation can be suspended if admissibility is challenged on the basis of domestic proceedings)
III. Effect of Kenya’s Possible Withdrawal from the Rome Statute on Ongoing Cases
(i) 5 September 2013, Mark Kersten at Justice in Conflict (on the (non)effect of withdrawal in the Ruto and Kenyatta cases, and the likelihood that other African countries will follow suit – also read the excellent comments)
(ii) 14 September 2013, Miša Zgonec-Rožej at iLawyer (on the practicalities of Kenya’s withdrawal and its possible implications for cooperation with the ICC)
(iii) 18 September 2013, Charles Jalloh at EJILTalk! (on whether Kenya could invoke a fundamental change of circumstances to remove its obligation to cooperate)
IV. Obligation on the Accused to be Present at the Trial
(i) 21 August 2013, William Schabas at Human Rights Doctorate (advocating a flexible approach to the question of the presence of the accused at the trial, in response to the Appeal Chamber’s suspension of the Trial Chamber’s decision to allow Ruto not to be continuously present)
(ii) 16 September 2013 Thomas Obel Hansen at Justice in Conflict (on the amicus curiae briefs submitted by five African states asking the Trial Chamber to allow Ruto not to be continuously present)
(iii) 20 October 2013, William Schabas at Human Rights Doctorate (on the Trial Chamber’s decision excusing Kenyatta from continuous presence at his trial and its discussion of preparatory work), see also Reka Hollos at iLawyer
(iv) 25 October 2013, Dov Jacobs at Spreading the Jam (analysing the Appeals Chamber’s decision to overturn the Trial Chamber’s finding that Ruto could be excused from much of the trial, agreeing with the AC’s analysis of the Rome Statute but criticising its interpretation of discretion)
(v) 25 October 2013, Kevin Jon Heller at Opinio Juris (criticising the Appeals Chamber for failing to take account of the risk of Kenyan non-cooperation and for its creation of criteria for discretion)
(vi) 26 October 2013, William Schabas at Human Rights Doctorate (criticising the Appeals Chamber’s decision, also focusing on the AC’s criteria for the exercise of discretion)
(vii) 30 October 2013, Mahomed Jivraj at iLawyer (analysing the Appeals Chamber’s ruling in more detail and questioning whether the Chamber should pay attention to the risk of non-cooperation in coming to its decision)
(viii) 19 November 2013, Mark Kersten at Justice in Conflict (on the prospects of Kenya’s proposed amendments to the ICC Statute and Rules of Procedure and Evidence at the Assembly of State Parties), see also Kersten’s post here with more detail on what Kenya was hoping to achieve at the ASP and Kevin Jon Heller’s post here responding to Kersten
(ix) 20 November 2013, Kevin Jon Heller at Opinio Juris (criticising Kenya’s proposals to amend the RPE to allow sitting heads of state to waive their right to be present at the trial and to allow presence through video technology)
(x) 28 November 2013, Kevin Jon Heller at Opinio Juris (arguing that the amendments to the RPE adopted at the ASP are likely to be rejected, and rightly so, by the Appeals Chamber)
Disclaimer: Please note that inclusion in or exclusion from this index does not indicate approval or disapproval of views or reflect a judgement on the quality of argument.
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