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Head of State Immunity is not the same as State Immunity: A Response to the African Union’s Position on Article 98 of the ICC Statute

Published on February 13, 2012        Author: 

Jens Iverson is a researcher for the Jus Post Bellum Project at the Grotius Centre for International Legal Studies, University of Leiden, the Netherlands.

On 9 January 2012, the African Union (AU) Commission issued a press release responding to the decisions (see here and here) issued by Pre-Trial Chamber I of the International Criminal Court (ICC) last December regarding the “alleged” failure by Chad and Malawi to comply with the cooperation requests with respect to the arrest and surrender of President Al Bashir of Sudan (For previous EJIL:Talk! Commentary on the ICC decisions and the AU response see here and here). In the press release, the AU makes the  assertion that the decision has the effect, inter alia, of:

“Rendering Article 98 of the Rome Statute redundant, non-operational and meaningless.”

There has been much discussion (including by Dapo Akande on this blog and elsewhere) regarding the meaning and effect of Article 98 of the Rome Statute. Paragraph 1 of that provision states that:

 “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.”

 Unfortunately, the following points are often not emphasised in discussions or rulings on Article 98(1) and are entirely overlooked by the AU Commission:

i.          Article 98(1) only covers “State or diplomatic immunity of a person or property of a third State”;

ii.         Head of state immunity is not the same thing as either a) state immunity or b) diplomatic immunity; and

iii.       Head of state immunity is the relevant immunity in this case. 

Nowhere does the Rome Statute explicitly recognize head of state immunity as a reason not to comply with obligations under the Statute.  As is well known, Article 27(2) clearly and unambiguously states that immunities which may attach to the official capacity of a person do not bar the Court from exercising jurisdiction over such a person.  Particularly in light of Article 27(2) and the obvious importance of the question of head of state immunity, if the framers of the Rome Statute intended Article 98(1) to apply to heads of state, one might have expected that explicit language to that effect would have been negotiated at the Rome Conference.  It was not.  Rather, as this analysis will briefly elaborate, it appears that Article 98 was crafted not to interfere with States qua States and with the efficient performance of the functions of diplomatic missions, while retaining the capacity to hold heads of state to account. 

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