Immunity before the International Criminal Court: Still hazy after all these years

Authors Linda Mushoriwa

ISSN: 1996-2118
Affiliations: None
Source: South African Journal of Criminal Justice, Volume 31 Issue 3, p. 339 – 360


This article examines the increasingly deteriorating relationship between the African Union (AU) and the International Criminal Court (ICC OR ‘the Court’). It explains that the tension between the AU and the ICC is primarily centred on the issue of Head of State immunity before the Court. The contradictory nature of the provisions in article 27 (2) and article 98 (1) of the Rome Statute of the International Criminal Court (Rome Statute) regarding the immunity of state offcials before the ICC has contributed signifcantly to this tension. The inconsistent jurisprudence of the ICC regarding the immunity question before the Court is examined and it is asserted that Jordan’s appeal against Pre-Trial Chamber II’s Decision on non-cooperation and the possibility of an ICJ Advisory Opinion on the issue of Head of State Immunity before the Court; both present an opportunity for the clarifcation of the interpretation of article 98 (1) of the Rome Statute. The article concludes that although the work of the ICC is important in ensuring accountability for alleged human rights violations, the Rome Statute cannot operate in isolation, divorced from the realities of the travel of leaders such as Sudanese President Omar Al-Bashir; for legitimate intergovernmental business.