The ICC Pre-Trial Chamber’s Decision on Malawi regarding the Failure to Arrest and Surrender President Al Bashir of Sudan: An Opportunity Missed

Abstract

Article 27 of the Rome Statute makes it clear that immunities for any state official are not to bar prosecutions by the ICC. On the other hand, article 98(1) of the Rome Statute provides that the International Criminal Court (ICC) may not proceed with a request for surrender which would require the requested state to act inconsistently with its obligations under international law with respect to the state or the diplomatic immunity of a person from a third state, unless the ICC can first obtain the cooperation of that third state for the waiver of the immunity. There is therefore a clear tension between articles 27(2) and 98(1) of the Rome Statute when it comes to state parties’ cooperation with the ICC in cases of arrest and surrender of accused persons who happen to be entitled to personal immunities. This raises questions such as: are states party to the Rome Statute under an obligation to arrest and surrender a head of state not party to the Rome Statute when such a head of state has immunities under international law? Does this mean that states party to the Rome Statute are to ignore their obligations under the Rome Statute vis-à-vis international law obligations on personal immunities of the incumbent heads of state, and vice versa? I argue that the Pre-Trial Chamber failed to consider these questions and as a result, it missed an opportunity.