KIGALI INDEPENDENT UNIVERSITY ULK

SCHOOL OF LAW

P.O.BOX 2280 KIGALI

LEGAL ANALYSIS OF IMMUNITY AND PROSECUTION OF STATE

OFFICIALS BEFORE ICC

Dissertation submitted to the School of Law in

partial fulfillment of the academic requirements for
the Award of Bachelors Degree in Law

By HAGENIMANA Polycarpe

Roll Number: 28167

Supervisor: Lecturer Joseph NSABIMANA

Kigali, August 2015

i
 i

DECLARATION

I, HAGENIMANA Polycarpe, hereby declare that, this dissertation entitled, The legal
analysis of immunity and prosecution of state officials before ICC is my original work and
have never been submitted in any other institutions for the Award of any academic degree.

Signature Date...//2015

Students signature

HAGENIMANA Polycarpe
 ii

DEDICATION

To Almighty God;

To all members of my family;

To our colleagues and

classmates who shared good
and bad times during the whole
studies.
 iii

ACKNOWLEDGEMENTS

This work is not the result of my personal efforts only, but above all is Almighty God. Also, my
appreciation goes to the parents for their care from my childhood, and their assistance
encouragement throughout my life and especially my studies. The deepest gratitude goes to my
lovely wife NYIRASAFARI Gaudence and my children for their love, encouragement and big
support from the beginning up to the end of my undergraduate studies. My gratitude is also
accorded to the President and Founder of ULK, Professor RWIGAMBA Balinda for his
investment in education which enabled me to carry out my studies in the School of law at ULK.

Moreover, with much appreciation, I thank my supervisor Lecturer NSABIMANA Joseph, who
accepted to supervise this dissertation up to its success despite his numerous responsibilities. His
advices in correcting mistakes and the topic research orientation, critics towards me, all of these
have contributed for this works quality. I also thank all Kigali Independent University staff
particularly my lecturers of the school of law who gave me the skills within four years.

Lastly, I do not forget my colleagues for their collaboration and mutual assistance for all along
the four years for undergraduate studies.

HAGENIMANA Polycarpe
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LIST OF ABBREVIATIONS AND ACRONYMS

Art. : Article

BIAs : Bilateral Immunity Agreements

DRC : Democratic Republic of Congo

ECHR : European Court of Human Rights

Ed. : Edition

G.A : General Assembly

http : hyper text transfer protocol

Ibidem : Same author, same book, same page

ICC : International Criminal Court

ICCPR : International Covenant on Civil and Political Right

ICJ : International Court of Justice

ICTR : International Criminal Tribunal for Rwanda

ICTY : International Criminal Tribunal for the former Yugoslavia

Idem : Same author, same book, different pages

ILC : International Law Commission

NO : Number

O.G : Official Gazette

O.L : Organic Law

Op.cit : Opere Citato

P. : Page
 v

Para : Paragraph

Rep : Report

Res : Resolution

UK : United Kingdom

ULK : Universit Libre de Kigali

UNSC : United Nations Security Council

US : United States

V. : Versus

VCDR : Vienna convention on Diplomatic Relations

Vol. : Volume

WWW : World Web Wide

TABLE OF CONTENTS

DECLARATION.............................................................................................................................i

DEDICATION...............................................................................................................................ii
 vi

LIST OF ABREVIATIONS AND ACCRONYMS.....................................................................iv

GENERAL INTRODUCTION.....................................................................................................1

I. Background of the study...............................................................................................................1

2. Scope of the study........................................................................................................................4

3. Problem statement.......................................................................................................................4

4. Research hypothesis.....................................................................................................................6

5. Research objectives.....................................................................................................................7

6. Research techniques and methods...............................................................................................8

6. 1. Techniques...............................................................................................................................8

6. 1. 1. Documentary technique.......................................................................................................8

6. 2. Method.....................................................................................................................................8

6. 2. 1. Exegetic method..................................................................................................................8

6.2.2. Analytical methods................................................................................................................9

6.2.3. Historical methods.................................................................................................................9

6. 2. 4. Synthetic method.................................................................................................................9

7. Subdivision of the work...............................................................................................................9

CHAPTER I:CONCEPTUAL AND THEORETICAL FRAMEWORK...............................10

I. GENERALITIES........................................................................................................................10

I. 1. Definition of key terms...........................................................................................................10

I. 1. 1. Immunity............................................................................................................................10

I.1.1.1. Functional immunity (ratione materiae)............................................................................11

I.1.1.2. Personal immunity (ratione personae)...............................................................................11

I. 1.2. People entitled to immunity................................................................................................12

I. 1. 3. State officials......................................................................................................................12

I. 1. 4 Diplomats............................................................................................................................13

1. 1. 5. Diplomatic immunity.........................................................................................................13
 vii

1. 1. 6. International Criminal Court..............................................................................................13

1. 1. 7. Rome statute......................................................................................................................14

1. 1. 8. Prosecution........................................................................................................................15

I. 1. 9. Jus cogens norm.................................................................................................................15

I. 1. 10. Jurisdiction.......................................................................................................................16

I. 1. 10. 1. Jurisdiction of ICC.......................................................................................................16

1. 2. The concept of immunity and its evolution...........................................................................21

I. 3. International legal instruments relating to immunity.............................................................23

I.4. Cause of establishment of international criminal court...........................................................23

CHAPTER II. CHALLENGES FACED BY ICC TO PROSECUTE STATE OFFICIALS

FOR INTERNATIONAL CRIMES........................................................27

II. 1. Current situation of immunity in international law...............................................................27

II. 2. Challenges in Relation to the Prosecution of Senior State officials before the International
Criminal Court....................................................................................................................28

II. 2.1. Immunity of state officials.................................................................................................29

II. 2.2. Lack of credibility by Africans..........................................................................................30

II. 2.3. Evidence collection............................................................................................................31

II. 2. 4. Intimidation and withdrawal of witnesses........................................................................31

II. 2. 5. Complementarity principle...............................................................................................32

II. 2. 6. Lack of cooperation..........................................................................................................34

II. 2. 7. Article 98 agreements........................................................................................................36

II. 2.8. Security Councils lack of follow-up support for its ICC referrals....................................37

II. 2. 10. Security Council Requests for Deferral..........................................................................39

II. 2. 11. U. S opposition to ICC jurisdiction.................................................................................39

II. 12. Universal jurisdiction to core crimes..................................................................................40

II. 3. A brief background to the Sudans president, Omar Hassan al-Bashir case.........................42

CHAP III. IDENTIFICATION OF REMEDIES TO FACILITATE ICC JURISDICTION

IN THE PROSECUTION OF STATE OFFICIALS..........................................................44
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III. 1. Adoption and amendment of domestic laws.......................................................................44

III. 2. Enforcement of arrest warrants and the duty to surrender...................................................45

III. 3. Revision of article 98 of Rome Statute................................................................................47

III. 4. Enforcement of duty to cooperate and assistance to the ICC..............................................49

III. 5. UN Security Council follow-up support..............................................................................50

III. 6. Practical independence of ICC............................................................................................51

III. 7. International legal assistance between states.......................................................................52

III. 7. Increase of States to ratify the Rome statute.......................................................................54

III. 8. Strengthening the principle of Complementarity................................................................55

GENERAL CONCLUSION........................................................................................................57

RECOMMENDATIONS.............................................................................................................59

BIBLIOGRAPHY........................................................................................................................60
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GENERAL INTRODUCTION

I. Background of the study

The application of international criminal law for the prosecution of State Officials was first
witnessed after the Second World War State Officials from Germany were prosecuted and
punished by the Nuremberg tribunal which was established by the Charter of the International
Military tribunal. This charter outlawed State Officials defense of immunity for crimes against
peace (aggression), crimes against humanity and war crimes. Similarly, the Tokyo Tribunal,
which was established by the Charter of the International Military Tribunal for the Far East, had
outlawed the defense of immunity of State Officials in relation to international crimes. Hence,
immunity of State Officials has been rejected at least since the days of Nuremberg.1

Subsequent to World War II, international law on the doctrine of immunity of State Officials
developed further. Different international Conventions, principles and statutes of international
criminal tribunals and courts rejected the defense of immunity of State Officials before
international courts and tribunals. In all these instruments the official capacity of a person is
neither a defense for prosecution nor a mitigating factor in their punishment2.

The contemporary law on non recognition of the immunity of state officials for international
crimes is embodied in Article 27 of the Rome Statute establishing the International criminal
Court which sets out the position in international law for the prosecution of individuals for
international crimes before international courts. Of late, the question as to whether immunity of
State Officials should prevail over the duty to prosecute and punish individuals responsible for
international crimes has resurfaced in the light of the new developments in the international
criminal law. For instance, international and national courts which have prosecuted state officials
have faced challenges in a number of areas including jurisdictional matters, the enforcement of
warrants of arrest and subpoenas against sitting State Officials and so on .

1
Dapo A. and Sangeeta Shah, Immunities of State Officials, International Crimes, and Foreign Domestic Courts,
Vol. 21 no. 4 EJIL 2011
2
Asian-African legal consultative organization, Inter-sessional Meeting Of Legal Experts To Discuss Matters
Relating To International Law Commission to Be Held On 10th April 2012at AALCO Secretariat, New Delhi
available at http://www.aalco.int/Background--20Paper20ILC%2010-20April--202012
 2

Furthermore, international courts have held differently regarding the immunity of State Officials
in respect of subpoenas duces tecum and subpoenas ad testificandum where international crimes
are at the core of discussion. The uncertainties that underpin these issues coupled with the
recognition of the increasing problem of immunity of State Officials before national courts
triggered the International Law Commission (ILC) to embark on a study on the immunity of
State Officials from foreign criminal jurisdiction.3

With respect to Heads of State, or other high ranking officials, immunity ratione materiae, or
functional immunity (immunity for official acts committed as part of ones duties while in
office), is traditionally granted to state officials. When the official leaves office, he or she
continues to enjoy immunity ratione materiae with regard to acts performed while he or she was
serving in an official capacity. In addition to immunity ratione materiae, high-ranking officials
(traditionally, the troika) are also granted immunity rationae personae, immunity for personal
acts committed during the officials time in office. Since the immunity is connected with the post
occupied by the official in government service it is of temporary character and becomes effective
when the official takes up the post and ceases when he or she leaves that post. Then, the
immunities attached to the Head of State are often considered qualitatively from those attached
to the other two positions. This is because the Head of State is considered the personification of
that state, someone whose sovereignty is inviolable.

Article 29 of Vienna convention on diplomatic relations of 18 April 1961 provides that diplomats
must not be liable to any form of arrest or detention. They are immune from civil or criminal
prosecution, though the sending country may waive this right under Article 32. Under Article 34,
they are exempt from most taxes, and under Article 36 they are exempt from most customs
duties4. Article 37 of Vienna convention on diplomatic relations of 18 April 1961 provides that
the family members of a diplomat that are living in the host country enjoy most of the same
protections as the diplomats themselves. 5 Finally diplomatic immunity was respected basing on
article 31(1) of the Vienna Convention on Diplomatic Relations of 1961 which states that a
diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State6.

3
Ibidem p 5-7
4
Article 29, of the law already cited.
5
Article 37, of the law already cited.
6
https://thenewinternationallaw.wordpress.com/2013/12/27/issues-of-immunity-india-v-usa/
 3

The Vienna Convention on Diplomatic Relations of 1961 codified most modern diplomatic,
including diplomatic immunity. The conventions provide immunity to persons according to their
rank in a diplomatic mission. For example, diplomatic agents and members of their immediate
families are immune from all criminal prosecution and most civil law suits. Administrative and
technical staff members of embassies have a lower level of immunity. Members of an embassy's
service staff and consular employees are immune only for acts performed as part of their official
duties. It is true that diplomats are exempt from the criminal, civil and administrative jurisdiction
of the host country.

However, this exemption may be waived by their home country. Moreover, the immunity of a
diplomat from the jurisdiction of the host country does not exempt him/her from the jurisdiction
of his/her home country. It is also within the discretion of the host country to declare any
member of the diplomatic staff of a mission persona non grata (or unwanted person). This may
be done at any time and there is no obligation to explain such a decision. In these situations, the
home country, as a rule, would recall the person or terminate his/her function with the mission7.

The Vienna Convention on diplomatic relations of 18 April 1961 provides for specific measures
that can be taken by both the home and host countries in cases of misuse or abuse of diplomatic
privileges and immunities. On the whole, diplomatic privileges and immunities have served as
efficient tools facilitating relations between States8. Diplomatic privileges and immunities
guarantee that diplomatic agents or members of their immediate family may not be arrested or
detained, may not have their residences entered and searched, may not be subpoenaed as
witnesses but also may not be prosecuted9

In this work, the researcher has to show the reasons that pushed him to choose the topic and the
interest on The legal analysis of immunity and prosecution of state officials before ICC.

By choosing this topic the researcher wants to increase his knowledge about state officials
immunities before ICC and know if immunities can be a bar for the jurisdiction of ICC. For
academic and scientific interest, this work will be used as reference by other future researchers
who will be interested in such matters. In addition, this study will serve an obligation for all
finalists to conduct a research before getting their bachelors degree. The study on legal analysis

7
Ibidem
8
Vienna convention on diplomatic relations of 18 April 1961.
9
http://www.ediplomat.com/nd/diplomatic_immunity.htm accessed on 23/03/2015
 4

of diplomatic immunities before ICC will help the society to make more clarification on why a
person is called diplomat, how immunities are considered by ICC.

II. Scope of the study

This study is limited in international law especially in international criminal law. It deals with
major concept such as immunities of state officials. In time, it is limited to the time from 1945 up
to date. In space, the limitation is worldwide.

III. Problem statement

State officials immunity before ICC is a major aspect of the study which is actually delivered
from international law in which State officials are protected against any kind of receiving states
as provided for by article 31 of Vienna convention on diplomatic relations of 18 April 1961 that
diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State in
case diplomats. He shall also enjoy immunity from its civil and administrative jurisdiction.10
However, as principal objective of the Rome Statute is to end impunity for the perpetrators of the
most serious crimes of concern to the international community by ensuring their effective
prosecution without any distinction. Also article 43 paragraphs 1 of Vienna convention on
consular relation of 1963 states that Consular officers and consular employees shall not be
amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in
respect of acts performed in the exercise of consular functions.11

Personal immunity arises from customary international law and confers immunity on people
holding a particular office from the civil, criminal, and administrative jurisdiction.
This immunity is extended to state officials and their families while posted abroad (and is also
valid for their transfer to or from that post, and is only valid for the country to which they are
posted). Under personal immunity, private residence, papers, correspondence, and property of an
official enjoying personal immunities are inviolable.

As we know, the official position of a state agent, including an incumbent Head of State is not a
bar to his/her prosecution by International Criminal Court (ICC). 12 This rule is also captured in
article 27 of the Rome Statute that:
10
Article 31 of Vienna convention on diplomatic relations of 18 April 1961.
11
Article 43 paragraphs 1 of Vienna convention on consular relations of 1963.
12
E.KAYITANA, International Criminal Law course note, ULK, Kigali,2014(unpublished)
 5

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.13

Article 27, paragraph 1 confirms that officials are liable to criminal responsibility; paragraph 2
explicitly provides that officials may not claim immunity before the ICC.

Thus, the Rome Statute provides in its article 98 that:

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.14 Article 98 contradicts with article 27 of the Rome Statute.

That why, most of time it happens that state refuse to surrender and extradite state officials
offender of international crimes. (a) The crime of genocide; (b) Crimes against humanity; (c) War
crimes; (d) The crime of aggression15 The tangible example is the case of investigation of crimes
allegedly committed in the territory of Darfur, the Sudan. After 1 July 2002, the ICC Prosecution
has concluded that there are reasonable grounds to believe that Omar Hassan Ahmad AL
BASHIR (hereafter referred to as AL BASHIR) bears criminal responsibility for the crime of
genocide under Article 6 (a) of the Rome Statute, killing members of the Fur, Masalit and

13
Article 27 of Rome Statute
14
Article 98 of Rome Statute
15
Article 5 of Rome Statute
 6

Zaghawa ethnic groups but up to date AL BASHIR refused to appear before the court (ICC).
This is an obstacle to ICC objective of ending impunity for international crimes.16

After identifying the problem statement of this issue, the researcher will try to find answers to
the following questions in order to achieve the purpose.
1. What are the challenges faced by ICC to prosecute state officials for international crimes?
2. How to overcome with those challenges?

IV. Research hypothesis

Research hypothesis can be defined as a provisional explanation of the research problem, a

possible outcome of the research, or an educated guess about the research outcome. Hypotheses
are always in declarative sentence form. It is a statement or explanation that is suggested by
knowledge or observation but has not, yet, been proved.17
In the present study, I have proposed the following hypotheses which are the anticipated answers
on posed question which can be changed, confirmed, modified during the evolution of research.

16
AL BASHIR Case available online at http://www.icc-cpi.int/NR/rdonlyres/64FA6B33-05C3-4E9C-A672-
3FA2B58CB2C9/277758/ICCOTPSummary20081704ENG on 15/06/2015.
17
Shalini P. and Ajith Rao R. Developing hypothesis and research questions, September 18th 2001
 7

1. International Criminal Courts do not have police force to enforce arrest warrants and arrest
offender of international crimes but ICC is challenged by article 98 agreements which help state
to enter in arrangement and prevent that their nationals can be prosecuted by ICC we can take an
example of USA. Another challenge is that states refuse to cooperate with the court in arresting
and surrender state officials perpetrators of core crimes. Another challenge is the lack of
credibility by Africans due to the fact that all persons currently prosecuted by the court are
Africans while core crimes are done all over the world.18

2. For international crimes especially the core crimes namely the crime of genocide, war crimes
and crimes against humanity a treaty imposing an international obligation on states to extradite
or prosecute would help to bring perpetrators of international crimes to justice. In addition to
that, the other measures that can help the ICC to overcome those challenges would be the will of
the non-member states to accept the ICC jurisdiction and the UN Security Council can intervene
to enforce the jurisdiction by establishing the arrest warrants for the different state officials
offenders of international crimes.

V. Research objectives

The main objectives of this research are:

To analyze challenges faced by ICC to prosecute state officials offenders of serious

international crimes.

Specific objectives are the following:

To find out if state officials immunity can be opposable to ICC jurisdiction.

To show that Rome statute establishing ICC is very important tool to fight against
impunity for serious crimes.

VI. Research techniques and methods

18
Mia Zgonec-Roej and Joanne Foakes, International Criminals: Extradite or Prosecute? International Law, IL
BP 2013/01, July 2013, available online at
http://www.chathamhouse.org/sites/files/chathamhouse/public/Research/International%20Law/0713bp_prosecute
accessed on 21 May 2015.
 8

In order to bring forward presentable research paper, various techniques and methods have been
applied in carrying out of this study.

VI. 1. Techniques

Research technique itself is defined as a set of procedures of data collection in a law scientific
research mainly a dissertation19.

VI. 1. 1. Documentary technique

BAILEY, K. has defined documentary technique as the analysis of documents, these documents
include any written material that contains the information about the documents. That is the
secondary documents of people who received the information necessary to compile the document
by interviewing the eyewitness20 Documentary technique has been used whereby several texts,
books, articles and other sources as electronics have been assessed and consulted.

VI. 2. Method

Different methods have been used to help in the clarification of the study. These include, analytic
method, exegetic method, synthetic and historical method. According to LOUBERT DEL
BAYLE, methods are sum of the intellectual operations that permits to analyze, to understand
and to explain the studied realities.

VI. 2. 1. Exegetic method

Exegetic method is defined as a set of the structured procedures, rules and intellectual operations
used by the researcher to analyze and interpret laws and cases in relation with my
research topic for a successful achievement of the research21.

VI.2.2. Analytical methods

19
Dr Y.MUHIRE; Research methodology course notes, ULK, 2014 (Unpublished)
20
K. BAILEY. Methods of Social Research, 2nd edition, Macmillan Inc, New York, 1976.p.266
21
M .GRAWITZ, Methodological approach of social sciences, 1st edition, Dalloz, 1977, p.166
 9

According to LECOURT, the word analytical is using a method of separating things into their
order to examine and understand them. This method helped in systematic analysis of information
and data collected. This method consists of synthesizing a set of each element in flat or outside
its entirety. This method allowed researcher to analyze the information and data collected during
the research. This helps in analyzing while finding out information about the carried out subject.

VI.2.3. Historical methods

I will use this method in order to follow the phenomenon evolution in order to show the past,
present situation of the concept of immunity before ICC prosecution.

VI. 2. 4. Synthetic method

The synthetic method also has been used in summarizing different data got from different
sources consulted22

VI.2.5. Comparative method

The Comparative method consists in searching the differences and resemblances between two or
more situations. It has been used to compare data of different periods over the period under the
study. By using this method I shall try to compare how the legislation and policy established by
different countries with regards to the research topic.

VII. Subdivision of the work

The study will consist of three chapters:

First chapter deals with generalities and conceptual definition of the topic
Second chapter focuses mainly on challenges faced by ICC to prosecute state officials
offenders of international crimes.
The third chapter tried to analyze how to overcome with those challenges.
CHAPTER I. CONCEPTUAL AND THEORETICAL FRAMEWORK

This chapter will deal with generalities, definitions of key terms which will mostly be used in
this research but also the historical background of the research topic.

22
Dr Y.MUHIRE; Op cit p. 41
 10

I. 1. GENERALITIES

Countries in their international relation apply the principle of immunity which comes from the
customary international law which is necessary for the maintenance of a system of peaceful
cooperation, global cooperation and co-existence among states23. Immunities are of two types.
The first is functional immunity, or immunity ratione materiae. The second is personal immunity,
or immunity ratione personae. Both categories of immunities are granted to state officials.24

I. 2. Definition of key terms

Much misunderstanding in human communication results from people bringing different

meanings to the words they use in speaking and writing. Effective researchers seek to avoid
this difficulty by clearly explaining the meanings they assign to key terms in their
investigations. Key terms can be defined as terms which are frequently used by the
researcher.25 To help readers to well understand the content of research it is better to define
them. In my research I will define and use the following concepts:

I. 2. 1. Immunity

Immunity is an exemption granted by statute or government authorities from a legal duty, penalty
or prosecution. There are generally three types of immunity at law 26. Immunity derives
from the position held by the person in question. There are two types of immunities under
common international law, ratione materiae (functional) and ratione personae (personal).

23
Daniela Alexandra Turcut, ICC Criminal Jurisdiction over Immunity Ratione Personae , 7 November 2013
accessed at http://www.academia.edu/5287757/ICC_Criminal_Jurisdiction_over_Immunity_Ratione_Personae on
15/06/2015.
24
Ibidem.
25
http://www.masterpapers.com/key_terms.php accessed on 23/03/2015.
26
http://definitions.uslegal.com/i/immunity/ accessed on 25/03/2015.
 11

I.2.1.1. Functional immunity (ratione materiae)

Functional immunity protects certain senior officials (Head of states, prime ministers, foreign
ministers,) from prosecution in other countries for acts committed within the context of their
official duties. This immunity is justified under customary international law by the fact that the
actions of such persons are imputed to the state (Blaki, Decision of the Appeals Chamber of
the ICTY 29 Oct. 2007, 38). Functional immunity is linked to a position rather than a specific
person. What is more, this immunity is permanent, which means that an official who has this
protection can never be brought to justice even after she has left her post. It is now generally
recognized that immunity does not protect state actors from prosecution in international courts
for the most serious international crimes (war crimes, crimes against humanity, torture and
genocide)27.

This is because such acts can never be considered as part of a states legitimate function so that
they may not be imputed to it. This defense has been disavowed by the Nuremberg Charter
(article 7), the Genocide Convention (article 4), the Statute of the International Criminal Tribunal
for the former Yugoslavia (article 7(2), the Statute of the International Criminal Tribunal for
Rwanda (article 6(2)) and the Rome Statute of the International Criminal Court (article 27).28

I.2.1.2. Personal immunity (ratione personae)

In contrast, personal immunity is absolute, individual and temporary. This form of immunity
protects certain senior officials (heads of State, diplomatic agents, ministers of foreign affairs,
etc.) from all law suits while they are in office. This immunity is justified on the basis that such
officials and diplomats require a certain amount of independence to be able to effectively
exercise their functions. In June 2002, the International Court of Justice affirmed that absolute
immunity of the DRCs Minister for Foreign Affairs in the Case Concerning the Arrest Warrant
of 11 April 2000 (Democratic Republic of the Congo v. Belgium)29.

27
Dapo Akande, the jurisdiction of international criminal court over nationals of non state parties: legal basis and
limits,journal of international criminal justice 1,3, Oxford university press 2003
28
http://www.trial-ch.org/en/resources/international-law/amnesty-and-immunity.html
29
Ibidem.
 12

The Court held that an arrest warrant could not be issued against a sitting minister of foreign
affairs because he had to be able to travel freely in order to fulfill his mission. Contrasting this
decision with the Pinochet case highlights the difference between functional and personal
immunity. Even though functional immunity cannot be invoked in an international court in the
case of the most serious international crimes, Yerodia was protected by his personal immunity as
long as he exercised the function of minister of foreign affairs.30

I. 2.2. People entitled to immunity

Under customary international law, both immunity rationae personae and immunity rationae
materiae are accorded to Head of states, Prime Minister, Minister of foreigner affairs and
diplomats31whereas only functional immunity is enjoyed by all foreigner officials irrespective of
their rank.32

I. 2. 3. State officials

An official is defined as a person holding an office or position, especially one who acts in a
subordinate capacity for an institution such as a corporation or governmental agency. 33As far as
the domain of immunity is concerned here, the state officials concerned by the present research
are those occupying the high positions. When it comes to define those categories of state
officials, it is difficult to identify precisely to whom the concept of senior official applies,
especially as official may refer to holders of (political) or to non-political civil servants. 34In
my work, the meaning to be considered is the one given by ICJ (a person holding a high-ranking
office). Apart from the Head of states, other persons are: Prime Minister, Minister of foreigner
affairs and diplomats.

I. 2. 4 Diplomats

30
Ibidem.
31
Cassese, International Criminal law, Oxford University Press, USA, 2nd edition, 302. P.12 available
online at http://www.nanotechnologybooks.net/book/International-Criminal-Law/9780199203109/
visited on 12/03/2015
32
Knushe State officials immunity, North western Journal of international Human Rights,2011, p. 15
33
Official.(2003). The American heritage Dictionary of the English language, Fourth edition, retrieved on 16 June
2015 from http://www.thefreedictionary.com/official.
34
Sir Watts, A. (2010, October). Heads of Government and other senior Officials, Retried on 17 June 2015 from
http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1417.
 13

Article 1(e) of Vienna convention on diplomatic relation of 1961 provides that a diplomat is the
head of the mission or a member of the diplomatic staff of the mission 35 .A generic term denoting
a person who carries out regular diplomatic relations of the nation he/she represents in the nation
to which he/she has been accredited.36

1. 2. 5. Diplomatic immunity

Diplomatic immunity is a principle of international law by which certain foreign government

officials are not subject to the jurisdiction of local courts and other authorities.37 Although all
people within a sovereign state are subject to its laws and jurisdictions, ambassadors are
regularly granted diplomatic immunity, meaning they are not subject to the laws of the state to
which they are posted, and cannot be arrested, sued, or taxed by their host government. This
philosophy assumes that the ambassador will act within the laws of the land and with the utmost
respect for the country he or she serves, which is why the mistreatment of diplomats is
considered an extensive breach of international law. Ambassadors official residences are their
embassies, which, like their papers and other personal possessions, cannot be searched or seized
without their consent.38

I. 2. 6. International Criminal Court

The International Criminal Court (ICC) is an independent institution located in The Hague, the
Netherlands. The Rome Statute, signed 17 July 1998, created the ICC and established how to
govern the Court. The ICC has been in operation since 1 July 2002. The ICC tries cases against
people accused of genocide, crimes against humanity, war crimes, or crimes of aggression.
Jurisdiction can be complicated in some situations, but generally, the Court may only assert
jurisdiction in states that have signed the Rome Statute. Interestingly, the ICC cannot try cases
for crimes committed before a State signed on to the Statute.

35
Article 1(e) of Vienna convention on diplomatic relations of 1961.
36
http://www.ediplomat.com/nd/glossary.htm accessed on 25/03/2015.
37
http://www.ediplomat.com/nd/diplomatic_immunity.htm accessed on 25/03/2015.
38
http://www.answers.com/topic/diplomatic-immunity accessed on 25/03/2015.
 14

As of 1 July 2012, 121 States signed and ratified the Rome Statute. The ICC consists of the
Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry.39

According to article 1 of Rome Statute an International Criminal Court (the Court) is hereby
established. It shall be a permanent institution and shall have the power to exercise its
jurisdiction over persons for the most serious crimes of international concern, as referred to in
this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and
functioning of the Court shall be governed by the provisions of this Statute 40. The International
Criminal Court (ICC), governed by the Rome Statute, is the first permanent, treaty based,
international criminal court established to help end impunity for the perpetrators of the most
serious crimes of concern to the international community. The ICC is an independent
international organization, and is not part of the United Nations system. Its seat is at The Hague
in the Netherlands. Although the Courts expenses are funded primarily by States Parties, it also
receives voluntary contributions from governments, international organizations, individuals,
corporations and other entities.41

I. 2. 7. Rome statute

The Rome Statute of the International Criminal Court (often referred to as the International
Criminal Court Statute or the Rome Statute) is the treaty that established the International
Criminal Court (ICC). It was adopted at a diplomatic conference in Rome on 17 July 1998 and it
entered into force on 1 July 2002. a conference of 160 States established the first treaty-based
permanent international criminal court. The treaty adopted during that conference is known as
the Rome Statute of the International Criminal Court42.

39
http://www.beyondintractability.org/essay/international-criminal-court-overview accessed on 18/06/2015.
40
Article 1 of Rome Statute.
41
http://www.icc-cpi.int/en_menus/icc/about%20the%20court/Pages/about%20the%20court.aspx accessed on
25/03/2015
42
Idem. P. 9
 15

I. 2. 8. Prosecution

In criminal law, the prosecution or a criminal action is a proceeding instituted and carried on by
due course of law, before a competent tribunal, for the purpose of determining the guilt or
innocence of a person charged with crime43.

I. 2. 9. Jus cogens norm

Jus cogens norm is defined as a mandatory legal standard from which no derogation, in domestic
law or international law, is allowed44 .Latin meaning "compelling law." This "higher law" must
be followed by all countries. Nonetheless, certain rules of international law have always been
considered so fundamental to the working of the system that states may not opt out of them. A
theoretical basis for these peremptory norms' is now found in the notion that they represent a
combined will of the world community. As such, rules of the ius cogens are not immutable: they
can be changed by the usual processes for creating new customary law45.

For example, genocide or slave trade may be considered to go against jus cogens, due to
peremptory norms. The 1986 Vienna Convention on the Law of Treaties affirmed jus cogens as
an accepted doctrine in international law. States have used the concept of jus cogens in their
efforts to achieve reforms in the existing law and international legal order. In international
criminal law, jus cogens refers to the legal duties that arise in connection with high profile
crimes, including the duty to prosecute or extradite, the non-applicability of statutes of
limitations, the non-applicability of any immunities up to and including Heads of State, the non-
applicability of the defense of "obedience to superior orders", and universal jurisdiction over
perpetrators of such crimes46.

I. 2. 10. Jurisdiction
43
http://thelawdictionary.org/sovereignty/ accessed on 18/06/2015.
44
http://www.duhaime.org/LegalDictionary/J/JusCogens.aspx accessed on 18/06/2015.
45
Dr ZIKAMABAHARI.J.D, Public international law course note, ULK, 2014(unpublished)
46
http://definitions.uslegal.com/j/jus-cogens/ visited on 18/06/2015.
 16

It is defined as the power and authority constitutionally conferred upon (or constitutionally
recognized as existing in) a court or judge to pronounce the sentence of the law, or to award the
remedies provided by law, upon a state of facts, proved or ad- mitted, referred to the tribunal for
decision, and authorized by law to be the subject of investigation or action by that tribunal, and
in favor of or against persons who present themselves, or who are brought before the court in
some manner sanctioned by law as proper and sufficient.47

I. 2. 11. Jurisdiction of ICC

The jurisdiction of the International Criminal Court needs to be understood in different contexts,
jurisdiction ratione materiae, (which refers to which crimes can be tried before the ICC,
jurisdiction ratione personae referring to who can be judged and jurisdiction ratione temporis
concerning to when might the crimes have been committed to be heard by ICC.

I. 2. 11.1. Jurisdiction ratione personae

With respect to the Jurisdiction ratione materia , the crimes which can be tried before the
International Court are four in number: Genocide, Crimes against humanity, War crimes and the
crime of Aggression

I. 2. 11.1.1. The crime of genocide

The term genocide was coined by polish lawyer Raphael Lemkin during World War II to
describe the crimes committed against the Jews by Nazis. The word is formed from the
Greek genos, for race, and the Latin caedere, for killing48. Lemkin defined genocide as
different actions aiming at the destruction of essential foundations of the life of the group
and guided by plan to annihilate the group. 49 More years would pass before the
international community could agree on a corresponding definition of the crime in the
Genocide Convention. Genocide means any of the acts laid out in Article 2 of the
Convention, which are committed with intent to destroy whole or in part, a national,

47
http://thelawdictionary.org/jurisdiction/ accessed on 18/06/2015.
48
R. Lemkin, Axis Rule occupied Europe (1973), p.79.
49
Idem, p. 12.
 17

ethical, racial, or religious group. These acts include killing members of the group.50

Genocide according to article 6 of the Rome Statute means any of the following acts committed
with intent to destroy, in whole or part, a national, ethnical, racial or religious group by methods
such as : Killing members of the group; Causing serious bodily or mental harm to members of
the group; Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part; Imposing measures intended to prevent births within the
group; Forcibly transferring children of the group to another group;51

I. 2. 11.1.2. Crimes against humanity

According to article 7 of the Rome Statute crimes against humanity means any of the following
acts when committed as part of a widespread or systematic attack directed against any civilian
population, with knowledge of the attack. murder; extermination; enslavement; deportation or
forcible transfer of population; imprisonment or other severe deprivation of physical liberty in
violation of fundamental rules of international law; torture; rape, sexual slavery, enforced
prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of
comparable gravity; persecution against any identifiable group or collectivity on political, racial,
national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are
universally recognized as impermissible under international law, in connection with any act
referred to in this paragraph or any crime within the jurisdiction of the Court Enforced
disappearance of persons; The crime of apartheid; Other inhumane acts of a similar character
intentionally causing great suffering, or serious injury to body or to mental or physical health. 52

According to article 120 of Rwandan penal code, the crime against humanity means any of the
following acts when committed as part of a widespread or systematic attack directed against any
civilian population because of its national, political, ethnic or religious affiliation:
1 murder;
2 extermination;
3 enslavement;
4 deportation or forcible transfer of population;

50
Article 2 of Genocide convention 1948 adopted in 1951.
51
Article 6 of Rome Statute.
52
Article 67of Rome Statute.
 18

5 imprisonment or other severe deprivation of physical liberty in violation of law;

6 torture;
7 rape, sexual slavery, forced prostitution, forced sterilization, or any other form of sexual
violence of comparable gravity;
8 persecution against a person on political, racial, national, ethnic, cultural, religious grounds or
any other form of discrimination;
9 enforced disappearance of persons;
10 the crime of apartheid;
11 other inhuman acts of a similar character intentionally causing great suffering, or serious
injury to mental or physical health53

I. 2. 11.1.3. War Crimes

Generally a war crime is any act for which soldiers and other individuals may be punished. The
category includes acts committed in violation of international humanitarian law and the laws of
criminals own country as well as acts in violation of laws of wars and undertaken by the order
and in the interest of the criminals own state.54According to article 8 of the Rome Statute war
crimes means grave breaches of the dispositions of the Geneva Conventions of 1949 as well as
other serious violations of the laws and customs of war. It should be noted that a war crime can
be committed within the framework of both national and international conflicts.

Other serious violations of the laws and customs applicable in international armed conflict,
within the established framework of international law. In the case of an armed conflict not of an
international character, serious violations of article 3 common to the four Geneva Conventions of
12 August 1949, namely, any of the following acts committed against persons taking no active
part in the hostilities, including members of armed forces who have laid down their arms and
those placed hors de combat by sickness, wounds, detention or any other cause:

Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not
apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts
of violence or other acts of a similar nature.

53
Article 120 of Rwandan penal code Official Gazette n Special of 14 June 2012.
54
V. G .Gerhard, Introduction to Public International Law.5th ed, London, Collier Mac Millan Publishing House,
1986, p.772.
 19

Other serious violations of the laws and customs applicable in armed conflicts not of an
international character, within the established framework of international law. Paragraph 2 (e)
applies to armed conflicts not of an international character and thus does not apply to situations
of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other
acts of a similar nature. It applies to armed conflicts that take place in the territory of a State
when there is protracted armed conflict between governmental authorities and organized armed
groups or between such groups. Nothing in paragraphs 2 (c) and (d) shall affect the responsibility
of a Government to maintain or re-establish law and order in the State or to defend the unity and
territorial integrity of the State, by all legitimate means.55

According to article 123 of Rwandan Penal Code, A war crime is any of the following acts
committed during armed conflict and directed against persons or property protected under the
provisions of the Geneva Conventions of August 12, 1949 and their additional Protocols I and II
of 8 June 1977: willfully killing; torture or inhuman treatments, including biological
experiments; willfully causing great suffering or serious injury to body or health; extensive
destruction and appropriation of property, not justified by military necessity and carried out
unlawfully and wantonly such as buildings dedicated to religion, charity or education, historical
buildings dedicated to works of art and science;

Compelling a prisoner of war or other protected person to serve in the forces of hostile power, in
its intelligence or administrative services; willfully depriving a prisoner of war or other protected
person of the right to regular and fair trial; forced deportation, displacement of the civil
56
population or their transfer to or systematic detention in concentration or forced labor camps
,taking of hostages and subjecting them to terrorist acts ; intentionally launching an attack
against the civil population or their property in the knowledge that such attack will cause loss of
life, injury to civilians or serious damage to civilian objects and which would be excessive in
relation to the military advantage anticipated; perfidiously using emblems and distinctive signs
of humanitarian organizations or other protective signs of persons or objects recognized by
International Law, with intention of killing, injuring or capturing the adversary; attacking by
whatever means, non-defended localities or demilitarized zones which are duly recognized;
practices of apartheid and other inhuman and degrading practices, based on racial discrimination,
55
Article 8 of Rome Statute
56
Article 123 of organic law instituting the Rwandan penal code Official Gazette n Special of 14 June 2012
 20

which give rise to outrages on human dignity; transfer of the population or its part into the
territory occupied by a party to the conflict, its deportation within or outside the occupied
territory while this is not in the interests of the population 57

I. 2. 11.1.4. Crime of Aggression

A crime of aggression occurs when a state uses armed force against another state, as prohibited
by article 2 paragraph 4 of the UN Charter, which states that58 All Members shall refrain in their
international relations from the threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the Purposes of the United
Nations59..

However, the use of force does not amount to a crime of aggression in cases of individual or
collective self-defence (authorized by Art. 51 of the UN Charter) ; or when it has been authorized
by the Security Council in order to maintain or restore international peace and security (Art. 42
of the UN Charter). Aggression was already prohibited in international law before the Second
World War, constituting an international wrongful act entailing state responsibility. It was first
regarded as an international crime involving individual criminal liability in the Charter of the
International Military Tribunal at Nuremberg in 1945 (Art. 6(a)), in which it is defined as crime
against peace60.

I. 2. 11.2. Jurisdiction rationae personae

With respect to the jurisdiction rationae personae, the Rome Statute provides that the ICC only
has jurisdiction over natural persons (Art. 25 1 of the Statute) at least eighteen years of age at
the time the crime was allegedly committed (Art. 26 of the Statute). There is no immunity under
the Statute due to the official rank of the accused person. It should be noted that the question of
pursuing moral persons was raised during the Rome conference. Nevertheless the discussion on
this subject raised disagreements among so many States, that it was decided not to integrate this

57
Idem p. 12
58
http://www.trial-ch.org/en/resources/international-law/crimes-definition.html accessed on 23/05/2015
59
Article 2 paragraph 4 of the UN Charter
60
Op cit, footnote 57
 21

competence into the ICC.

I. 2. 11.3. Jurisdiction rationae temporis

Finally insofar as the jurisdiction rationae temporis is concerned the ICC has jurisdiction only for
crimes committed after the entry into force of the Rome Statute (1st of July 2002). Furthermore,
for States which become Parties subsequently, the competence of the ICC only holds for the
crimes committed after the Statute comes into force for that State. But it would suffice that either
the State where the crime was committed or that the nationality of the author of the crime be
party to the Statute for the competence of the ICC to be acknowledged. To conclude it is to be
noted that the ICC is competent to pass sentence in three instances: imprisonment, fining and
confiscation. Imprisonment is the principal sanction; confiscation and fining being accessory
punishments (punishments which can be an adjunct to the principal sanction but which cannot be
imposed independently)61.

I. 3. The concept of immunity and its evolution

The concept of immunity began with ancient tribes. In order to exchange information,
messengers were allowed to travel from tribe to tribe without fear of harm. They were protected
even when they brought bad news. Today, immunity protects the channels of diplomatic
communication by exempting diplomats from local jurisdiction so that they can perform their
duties with freedom, independence, and security. Diplomatic immunity is not meant to benefit
individuals personally; it is meant to ensure that foreign officials can do their jobs.
Under the concept of reciprocity, diplomats assigned to any country in the world benefit equally
from diplomatic immunity.

The Vienna Convention on Diplomatic Relations of 1961 and the Vienna Convention on
Consular Relations of 1963 codified most modern diplomatic and consular practices, including
diplomatic immunity. More than 160 nations are parties to these treaties. The conventions
61
Ibidem.
 22

provide immunity to persons according to their rank in a diplomatic mission or consular post and
according to the need for immunity in performing their duties. For example, diplomatic agents
and members of their immediate families are immune from all criminal prosecution and most
civil law suits. Administrative and technical staff members of embassies have a lower level of
immunity62.

Consular officers serving in consulates throughout the country have an even lower level of
immunity. Members of an embassy's service staff and consular employees are immune only for
acts performed as part of their official duties. It is true that diplomats are exempt from the
criminal, civil and administrative jurisdiction of the host country. However, this exemption may
be waived by their home country. Moreover, the immunity of a diplomat from the jurisdiction of
the host country does not exempt him/her from the jurisdiction of his/her home country63.

It is also within the discretion of the host country to declare any member of the diplomatic staff
of a mission persona non grata (or unwanted person). This may be done at any time and there is
no obligation to explain such a decision. In these situations, the home country, as a rule, would
recall the person or terminate his/her function with the mission. The Vienna Convention
provides for specific measures that can be taken by both the home and host countries in cases of
misuse or abuse of diplomatic privileges and immunities. On the whole, diplomatic privileges
and immunities have served as efficient tools facilitating relations between States. No UN
Member State has so far proposed rescinding the Convention or re-writing its provisions.

Diplomatic privileges and immunities guarantee that diplomatic agents or members of their
immediate family may not be arrested or detained, may not have their residences entered and
searched, may not be subpoenaed as witnesses and may not be prosecuted64.

I. 4. International legal instruments relating to immunity

The international law reveals the existence of tree main documents relating to immunity of state
officials at the international level: The Vienna convention on Diplomatic Relations (VCDR), the
convention on Jurisdictional Immunities of States and their property, edited by the International
Law Commission (ILC), as well as the convention on Special Missions and the Optional

62
htt://www.ediplomat.com/nd/treaties/diplomatic_relation.hotmail accessed on 20/05/2015
63
Idem, p.4
64
http://www.ediplomat.com/nd/diplomatic_immunity.htm accessed on 25/03/2015.
 23

Protocol concerning the Compulsory Settlement of Disputes. The analysis of those texts reveals
that they cannot constitute a sufficient legal basis of the state officials immunity. The Vienna
Convention on Diplomatic Relations of 1961 in its article 29 defines the kind of protection
recognized to diplomats so that they could perform their duties without any fear of threat or
harassment by the host State.65 But it is well known that it is specifically concerned by
representatives of a State working in other State. The UN Convention on Jurisdictional
Immunities of States and their property is not yet in force.66 According to its article 30, the
Convention requires 30 states parties in order to enter into force. On 26th July 2014 only 16
instruments of ratification have been deposited. 67

I.5. Cause of establishment of International Criminal Court

The idea of the establishment of a permanent international criminal court emerged for the first
time in the aftermath of the First World War. A provision of the Treaty of Versailles arraigned the
former German Emperor for a supreme offense against international morality and the sanctity of
treaties and envisaged the creation of a special tribunal to try him. Provision was also made for
military tribunals of international composition to try persons guilty of criminal acts against the
nationals of more than one of the Allied and Associated Powers but such tribunals were never
established.

I.5.1. Establishment of two ad hoc international military tribunals

In the aftermath of the Second World War, two ad hoc international military tribunals (the
International Military Tribunal at Nuremberg and the International Military Tribunal for the Far
East) were established to try individuals who committed war crimes, crimes against peace and
crimes against humanity. Shortly after the UN was founded, the International Law Commission
received the mandate to codify the legal principles that emerged during the Nuremberg and
Tokyo trials, but progress on this initiative was blocked during the Cold War years68.

65
UN General Assembly, 1961 Vienna convention on Diplomatic Relations, 24 April 1964. UNTS.P.110
66
UN General Assembly, The UN Convention on Jurisdictional Immunities of States and their property, 2 December
2004. A/RES/59/38.P.13.
67
United Nations, (2004 December 2) The UN Convention on Jurisdictional Immunities of States and their property:
Status as at 15 June 2015 from http:// treaties.un.org.Pages/ViewDaitails.aspx?src=TREATY&mtdsg_no=III-
13&chapter =3&lang=en13&chapter =3&lang=en
68
http://www.pict-pcti.org/courts/ICC.html accessed on 13/06/2015
 24

Toward the end of the 20th century, new impetus to the quest for a permanent international
criminal jurisdiction with universal scope came from the end of the Cold War, the establishment
of the ICTY and the ICTR, concern about their ad hoc nature, and strong pressure from public
opinion outraged by the orderly impunity of egregious perpetrators of international crimes. This
lead to the adoption of the Rome Statute of the International Criminal Court (ICC) in July 1998
69
According to article 126 of the Statute, it enters into force 60 days after the deposit of the 60th
instrument of ratification or accession.70 Accordingly, the Rome Statute came into force on July
1st, 2002. On February 25th, it had been ratified by 89 States from all continents. The Court has
the power to try persons accused of the most serious international crimes (i.e., genocide, crimes
against humanity, war crimes and, if and when agreement on a definition can be reached, the
crime of aggression).71

I.5.2. Establishment of ICTY and ICTR

Doubtless, the roots of the Rome Statute can be traced back directly to the ICTY and ICTR,
along with a draft statute prepared in 1994 by the International Law Commission. The ICC,
together with the ICTY and ICTR, form a genus on its own, clearly distinguishable from all other
bodies portrayed in this matrix.

I.6. Difference between ICC, ICTY and ICTR

The ICC differentiates itself from the ICTY and ICTR in several legal and structural features,
some of which can be briefly addressed. First of all and most obviously, unlike the Yugoslavia
and Rwanda tribunals, the ICC is a permanent judicial body, the jurisdiction of which is not
limited by any time limits (of course, save the principle of non-retroactivity) and, at least
potentially, has universal reach. Secondly, although the jurisdiction of the two ad hoc tribunals is
not exclusive, but concurrent with that of national courts, both have primacy over national
courts. At any stage of the procedure, they may formally request the national courts to defer
competence.72

69
Ibidem.
70
Article 126 of the Rome statute.
71
Supranote footnote 60.
72
Ibidem.
 25

Conversely, the judicial activity of the ICC is intended only to complement that of national
courts. It will exercise its jurisdiction only when national courts are unwilling or unable
genuinely to carry out the investigation or prosecution of a person accused of the core crimes.
Another fundamental difference is that while the ICTY and the ICTR are subsidiary organs of the
Security Council, and as such embedded in the United Nations, the ICC will be much more self-
reliant. UN members are not ipso facto party to the Rome Statute.

It is the Assembly of the State parties, and not the Security Council, as in the case of the ICTY
and ICTR, that will supervise the work of the ICC (except in those situations which have been
referred to the Court by the Security Council itself). It will review the administration of the
Court, approve its budget and receive reports on its operation and procedure. The Assembly (not
the Security Council) will also address instances of failure on the part of the States to cooperate
with the Court. Again, while the ICTY and ICTR prosecutor is appointed by the Security Council
based on a nomination by the Secretary-General, in the case of the ICC he or she is to be elected
by the States parties.73

Still, the ICC is expected to have significant links with the UN. Indeed, situations in which one
or more crimes appear to have been committed can be referred to the Prosecutor by the Security
Council, acting under Chapter VII of the UN Charter, or by a State party to the Rome Statute.
Moreover, the Rome Statute provides that the UN will participate in the funding of the ICC,
together with States party, especially in relation to the expenses incurred in cases initiated
through referral by the Security Council. A further element that makes the ICC unique in the
international judicial panorama, is that it is the only international judicial body which has a
statutory provision whereby it may receive and utilize (on top of those made available by the
States party and the UN, when applicable) funds and voluntary contributions from governments,
international organizations, individuals, corporations and any other entities.74

Finally, what makes the Rome Statute significantly different from all predecessors, and in
particular from the two ad hoc tribunals, is that for the first time victims of crimes and their
families can access the Court to express their views and concerns and to claim reparation for the
wrongs suffered. Indeed, in the Yugoslavia and Rwanda tribunals, victims can enter the

73
Idem p.2
74
John T. Holmes, Complementarity: National courts versus the ICC, in A. Cassese, P. Gaeta, J. R. W. D. Jones
(eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford,
2002, ch. 18.1, p. 672.
 26

courtroom only as witnesses, providing one of the means through which evidence may be
brought before the tribunal. In the Rome Statute, however, those who have suffered have been
elevated from a mere aid in the judicial process with no own interest to protect but that of the
criminal justice system into legitimate participants. Several provisions in the Rome Statute
stipulate the involvement of victims during all phases of the case. Most importantly, victims of
international crimes can claim reparation for the violation of their rights. They will do so on their
own behalf or through their representatives, not through a state espousing their claims75.

The following chapter will deal with challenges faced by ICC in prosecuting state officials for
international crimes.

CHAPTER II. CHALLENGES FACED BY ICC TO PROSECUTE STATE OFFICIALS

FOR INTERNATIONAL CRIMES

The purpose of this chapter is to examine challenges faced by ICC to prosecute state officials
offenders of international crimes due to their immunity not because immune people can invoke
that status before the International Criminal Court but to the fact that the court needs a support
from their respective states which granted them that immunity, for realizing its mandate
completely.

II. 1. Current situation of immunity in international law

Normally, immunity is protection granted to individuals or groups of people that guarantee that
they will not be brought to justice for crimes that they may have committed. Immunity is tied to
a position. Immunity derives from the position held by the person in question.76 It is now
generally recognized that immunity does not protect state actors from prosecution in
international courts for the most serious international crimes (war crimes, crimes against
humanity, torture and genocide). This is because such acts can never be considered as part of a
75
Supranote footnote 60.
76
http://www.trial-ch.org/en/resources/international-law/amnesty-and-immunity.html accessed on 14/07/2015
 27

states legitimate function so that they may not be imputed to it. This defense has been
disavowed by the Nuremberg Charter (article 7), the Genocide Convention (article 4), the Statute
of the International Criminal Tribunal for the former Yugoslavia (article 7(2)), the Statute of the
International Criminal Tribunal for Rwanda (article 6(2)) and the Rome Statute of the
International Criminal Court (article 27). Other courts have also refused to recognize functional
immunity77.

In one of the most famous decisions cited in favor of a limited application of functional
immunity, the House of Lords held on November 25, 1998 that Augusto Pinochet, former
president of Chile, could not benefit from functional immunity for international crimes
(known as jus cogens or crimes giving rise to universal jurisdiction) such as torture or hostage
taking (Pinochet I Judgment). However, functional immunity is still an important protection
under domestic law. The International Court of Justice reaffirmed this in the Case Concerning the
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium).

In its decision, the Court struck the arrest warrant issued against Abdulaye Yerodia Ndombasi,
then the Minister for Foreign Affairs of the DRC, by Belgium authorities affirming that he
benefited from functional immunity and could only be prosecuted for personal acts committed
while in office.78 However, international criminal courts have not always recognized personal
immunities. Finally, the International Criminal Court issued an arrest warrant against the head of
Soudan, Omar Al-Bashir during his presidency because immunity is irrelevant before the court79.

II. 2. Challenges in Relation to the Prosecution of Senior State officials before the
International Criminal Court

77
Ibidem.
78
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgement, ICJ Reports 2002,
p.3.
79
See AU Press Release 002/2012, On the Decisions Of Pre-Trial Chamber I of the International Criminal Court
(ICC) Pursuant To Article 87(7) Of The Rome Statute On the Alleged Failure by the Republic of Chad and the
Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and
Surrender of President Omar Hassan Al Bashir of the Republic of The Sudan; Decision requesting observations from
the Republic of Kenya, ICC-02/05-01/09 (25 October 2010); see also the European Parliament Resolution urging
both Kenya and Chad to arrest President Al Bashir (Official Journal of the European Union, 2011/C 308 E/15);
Decision requesting observations from the Republic of Kenya, ICC-02/05-01/09 (25 October 2010); see also the
European Parliament Resolution urging both Kenya and Chad to arrest President Al Bashir (Official Journal of the
European Union, 2011/C 308 E/15); Decision informing the United Nations Security Council and the Assembly of
the States Parties to the Rome Statute about Omar Al Bashir's recent visit to the Republic of Chad, Pre-Trial
Chamber I, ICC-02/05-01/09, 27 August 2010. In 2009 and 2010 the Registry, at the Chamber request, sent a request
and a supplementary request for the arrest and surrender of President Al Bashir to all State parties to the Rome
Statute (ICC-02/05-01/09-7 and ICC-02/05-01/09-96).
 28

The International Criminal Court (ICC) proceedings against state officials have been hindered by
a series of arguments and counterarguments aiming either to avoid prosecution altogether or, at
best, to cause significant delays. Following legitimate efforts to retain the jurisdiction over the
crimes that took place in different region over the world we can say that the status of the
defendants became an obstacle to effective prosecutions, giving rise to further areas of dispute,
namely immunity, trial attendance and a general uncooperative attitude towards Prosecution
requests, leaving the ICC virtually unable to proceed 80. This research highlights the current
challenges encountered by the ICC in relation to the prosecution of core crimes. Notwithstanding
its impact, the Court continues to face challenges. Since its establishment, the effectiveness of
the Court has been called into question. However, there are interrelated factors that have
contributed to the ineffectiveness of the Court for instance, the lack of cooperation, immunity,
comprementarity principle, lack of credibility, etc

II. 2.1. Immunity of state officials

Immunities are necessary for the maintenance of a system of peaceful cooperation, global
cooperation and co-existence among states, which explains why states are unwilling to recognize
a general exception to immunity ratione personae that would permit other states to prosecute
their highest officials. Nevertheless, many states supported the creation of ICC with jurisdiction
over serious crimes, and to discard even their personal immunities to the court. In accordance
with the terms of the Rome Statute, ICC state parties are obliged to cooperate, under Article 86,
without reservation, under Article 120, with the court, and to surrender individuals, under Article
89. (Cryer, et al., 2010, ch. 21.5).

The irrelevance of official capacity is stated in Article 27 where no relay on immunity is

acceptable. Article 27.1 provides the equal applicability without distinction based on official
statute and Article 27.2 points out the criminal jurisdiction to which ICC is entitled in order to
trial heads of state and other officials. As a consequence of state parties acceptance that their
heads of state may enjoy immunities under international law but not before ICCs prosecution
lead to change of constitutions and amendments of domestic legislation in order to ratify the
Rome Statute. (Cryer, et al., 2010, ch. 21.5)81
80
Patricia Hobbs, contemporary challenges in relation to the prosecution of Senior State officials before the
International Criminal Court, Lecturer in Law, Brunel Law School, Brunel University, London
81
Daniela and Alexandra Turcut, ICC Criminal Jurisdiction over Immunity Ratione Personae Take Home Exam on State,
People and Conflict in Human Rights II Malm Universit 7 November 2013 available online at
http://www.academia.edu/5287757/ICC_Criminal_Jurisdiction_over_Immunity_Ratione_Personae visited 0n
 29

Moreover, in support of this view, Article 29 provides for non-applicability of statute of

limitations. However, another provision on immunities in the ICC Statute complicates the
situation. Article 98.1 provides a step in the way for surrender. In addition, under Article 98, the
obligation to arrest is subordinate to a states duty to respect personal immunity under customary
international law, thus if ICC request to a state party to surrender a person which is entitled to
immunity protection by a third state, than the requested state find itself in a conflicting
obligations position and has to decide either to breach Rome Statute or to breach the obligation
to respect immunities of a state non - party to ICC Statute. (Cryer, et al., 2010, ch. 21.5.3) Under
this aspect, ICCs exercise of jurisdiction upon a non party head of state might encounter
difficulties at the intersection with states political interest.

If such interest, supported usually by economic means, exists between the state party (X) and the
third state (Y) non-party to ICC Statute, then its more likely that the international relations
between X and Y will prevail and X will choose to breach the duty to carry out ICC requests,
unless by the virtue of obligation to the Security Council under Chapter VII of the UN Charter
turns to the alternative that immunity ratione personae is never opposable to ICC and surrender
the head of Y. Currently, the ICC case against President of Sudan Omar Al Bashir faces the
reality that no incumbent head of state has ever been arrested and prosecuted by an international
tribunal unless the Kenyan President who willingly appeared before the court 82. After analyzing
the justifications of immunities under international law, I argue that immunity does not protect
Bashir from prosecution by the ICC; however, immunity creates a legal obstacle to his arrest as
long as Bashir remains a sitting President, but still immunity is a challenge to ICC jurisdiction
over state officials83

II. 2.2. Lack of credibility by Africans

The international community hailed the establishment of the ICC as a major accomplishment in
the fight against immunity and impunity in general. In order to address States concerns about a
perceived loss of sovereignty, the Rome Statute was agreed on the basis that States would retain
the primary jurisdiction to investigate and prosecute international crimes, relegating the ICC to a

20/06/2015.

82
http://www.crimesofwar.org/commentary/the-icc-bashir-and-the-immunity-of-heads-of-state/#sthash.Q4FzauNh.
83
Idem p. 4.
 30

complementary role, determined by the States ability and willingness to carry out prosecutions
effectively. However, there has been a great deal of criticism the ICC effectiveness. To begin
with, all cases currently at the ICC deal with situations from Africa, leading the ICC to be
dubbed as an African Court rather than an international one. 84 Moreover, the ICCs focus on
Africa is largely not of its own doing. In five of the eight countries where it is actively
prosecuting suspects Uganda, Mali, Ivory Coast, the Central African Republic, and the
Democratic Republic of Congo the African state in question asked the court to intervene, often
with significant encouragement from victims and local rights groups.

In two other countries Sudan and Libya the UN Security Council asked that the ICC become
involved. Only in the case of Kenya did the ICC act entirely on its own initiative85. As all
situations currently before the Court are African, African states accuse the Court of neo-
colonialism and interference with African state sovereignty. However, it is further clear that the
Prosecutor was not charging the government of Kenya because, as many seem to forget, both
President Kenyatta and Vice-President Ruto were not sitting heads of state at the time of their
crimes or at the time of indictment by the Court.86

II. 2.3. Evidence collection

Using the case of Kenya, the intimidation and withdrawal of witnesses in the Kenyan cases
shows that the Court is not capable of successfully trying sitting heads of state. Despite the major
setback in the collection of evidence after the intimidation and withdrawal of several witnesses,
the Prosecutor is determined to pursue the cases. She responded by compelling the attendance of
the eight withdrawn witnesses in the Ruto case, through issuing a subpoena that was approved by
Trial Chamber V (A). In taking action against those corruptly influencing witnesses, the
Prosecutor requested Kenya to arrest Walter Barasa, who allegedly tried to bribe potential
witnesses in the case against Mr. Ruto. The subpoenas and the arrest warrant constitute a strong
message that the Court is determined and competent to pursue the prosecution of sitting heads of
state, without conceding to their power to intimidate witnesses. It also demonstrates the clear and

84)
Mirelle Delmas-Marty, Ambiguities and Lacunae: The International Criminal Court Ten Years on, 11 JICJ
(2013) 553-561.
85
Kenneth Roth, Africa Attacks the International Criminal Court, February 6, 2014
86
Mirelle Delmas-Marty ,Op cit p.2
 31

unified strategy and tactics employed by the Court in carrying out its central purpose of trying
high-ranked state officials.87

II. 2. 4. Intimidation and withdrawal of witnesses

From political challenges by the African Union and the State of Kenya, the Court is faced with
the intimidation and subsequent withdrawal of witnesses in the Kenyan cases.

The withdrawal of these witnesses and their testimonies faces the Prosecutor with a major
setback in the collection of evidence. Nevertheless, in her determination to pursue the Kenyan
cases, the Prosecutor responded by compelling the attendance of the eight withdrawn witnesses
in the Ruto case, through issuing a subpoena that was approved by Trial Chamber V (A). In the
case against President Kenyatta, where two Key witnesses withdrew; the Prosecutor requested
the adjournment of the trial date to provide her with more time to complete efforts to obtain
additional evidence Trial Chamber (V)b decided to adjourn the trial until October 7, 2014, in
order to give the Government of Kenya an opportunity to provide the Prosecution with access to
certain records, and to provide the Prosecution with more time to collect sufficient evidence in
taking action against those corruptly influencing witness88.

II. 2. 5. Complementarity principle

Paragraph 10 of the preamble of the Rome Statute emphasizes that the International Criminal
Court established under this Statute shall be complementary to national criminal jurisdictions;
and Article 1 of the Rome Statue provides An International Criminal Court is hereby
established. It shall be a permanent institution and shall have the power to exercise its
jurisdiction over persons for the most serious crimes of international concern, as referred to in
this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and
functioning of the Court shall be governed by the provisions of this Statute as the ICC was
established through an international treaty the Rome Statute.89

87
See Laura van Esterik, June 2014; Challenges of the Kenyan Cases at the ICC revised by Michaela Connolly May
2015
88
Cherif Bassiouni, Human Rights in the Context of Criminal Justice: Identifying International Procedural
Protections and Equivalent Protections in National Constitutions, 3 Duke Journal of Comparative & International
Law (1993) 235-297.
89
Lijun Yang, On the Principle of Complementarity in the Rome Statute of the International Criminal Court , The
Author 2005. Published by Oxford University Press, USA. P.23
 32

The Court, on the one hand, has jurisdiction over the core crimes of international concern and, on
the other, its power is limited by complementarity, i.e. the national jurisdiction comes first and
ICC's jurisdiction second. In the preamble of the Statute, the States Parties declare that they wish
to establish a permanent court to put an end to impunity for the perpetrators of these crimes and
thus to contribute to the prevention of such crimes90 and to ensure their effective prosecution
by taking measures at the national level and by enhancing international cooperation and that the
permanent court shall be complementary to national criminal jurisdictions in case trial
procedures may not be available or may be ineffective.91

As J. T. Holmes puts it, the implementation of the principle of complementarity generates two
practical questions: Firstly, how does the Court become aware that there are conflicts between
the exercising of its jurisdiction over a situation or case and the assertion and assumption of
jurisdiction by a state? Secondly, what does the Court do when faced with such a conflict? The
principle of complementarity in the ICC Statute is not a mere statement. It entails a precise legal
regime calling for the issue of jurisdiction to be evaluated by applying conditions of both
substance and admissibility. First, the complementarity issue can be raised only if the crime falls
within the conditions defined in Articles 5 to 8 of the Statute, which oblige the ICC to examine
substantive aspects of the crime in order to assert jurisdiction over a specific case. Second, the
Statute requires the fulfillment and analysis of several conditions related to admissibility:
genuine investigation and prosecution unwillingness and inability to prosecute.92

Unwillingness is quite simple to understand but is more complicated to evaluate. The meaning of
unwillingness to act was laid down in Article 17.2 of the ICC Statute 93. This provision cites
three criteria for determining whether unwillingness exists: (i) shielding a person from criminal
responsibility; (ii) unjustified delay in the proceedings which is inconsistent with the intent to

90
Paragraph 5, Preamble of the Rome Statute
91
http://chinesejil.oxfordjournals.org/content/4/1/121.full#fn-group-1 accessed on 22 June 2015
92
John T. Holmes, Complementarity: National courts versus the ICC, in A. Cassese, P. Gaeta, J. R. W. D. Jones
(eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford,
2002, ch. 18.1, p. 672.
93
Article 17.2 states: In order to determine unwillingness in a particular case, the Court shall consider, having
regard to the principles of due process recognized by international law, whether one or more of the following exist,
as applicable: (a) The proceedings were or are being undertaken or the national decision was made for the purpose
of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court
referred to in article 5; (b) There has been an unjustified delay in the proceedings which in the circumstances is
inconsistent with an intent to bring the person concerned to justice; (c) The proceedings were not or are not being
conducted independently or impartially, and they were or are being conducted in a manner which, in the
circumstances, is inconsistent with an intent to bring the person concerned to justice (emphasis added).
 33

bring the person to justice; and (iii) proceedings not conducted independently or impartially and
in a manner inconsistent with bringing the person to justice. These criteria could give a better
idea of what unwillingness is, but they also are rather subjective in terms of appreciation.
Consequently, the implementation process will also define their actual content. Unwillingness
does, however, show a states lack of a positive attitude towards prosecuting and trying
perpetrators of international crimes. In some cases there will be no doubt, as the states concerned
do not even want to conceal their non-intention to bring some criminals to justice.94

Inability is defined under Article 17.3 of the ICC Statute in more simple terms than
unwillingness. It first includes the non-functioning of a judicial system to such an extent that
investigations, prosecutions and trials of perpetrators are impossible. As underlined by certain
scholars, this is a fact-driven situation, since inability can be the result of the physical collapse of
the judicial system (no more structures) or the intellectual collapse thereof (no more, or only
biased, judges or judicial personnel). Inability also includes situations in which the conclusion of
trials is impossible, that is, the judicial system can still function but cannot face the challenge of
exceptional circumstances usually resulting from a crisis.95 Basing to the above cited this
principle is a challenge to ICC jurisdiction for state officials committing international crimes.96

II. 2. 6. Lack of cooperation

In all of its activities, the Court relies on international cooperation, in particular from States.
States Parties are obliged to cooperate fully with the Court in its investigations and prosecutions.
States Parties may cooperate in, inter alia, arresting persons wanted by the Court, providing
evidence for use in proceedings, relocating witnesses, and enforcing the sentences of convicted
persons. State Parties have an obligation to cooperate with the Court. Under Article
86, States shall in accordance with the provisions of the Statute, cooperate fully with the
provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of
crimes within the jurisdiction of the Court. The Court also relies on non State Parties,

94
X. Philippe , The principles of universal jurisdiction and complementarity, volume 88 Number 862 June 2006V
available online at https://www.icrc.org/eng/assets/files/other/irrc_862_philippe accessed on 23 June 2015
95
Article 17.3 states: In order to determine inability in a particular case, the Court shall consider whether, due to a
total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused
or the necessary evidence and testimony or otherwise unable to carry out its proceedings.
96)
Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, Pre-Trial Chamber I, First Arrest Warrant
issued on 4 March 2009, Second Arrest Warrant issued on 12 July 2010.
 34

interregional bodies and international organizations to apprehend and surrender indicted persons
and assist it in its investigations and prosecutions.

However, some State Parties and interregional organizations pay lip service to this provision. For
example, Kenya and Mali which State Parties to the Rome Statute failed to cooperate with the
Court in apprehending and arresting Al-Basher after the Court issued his arrest warrants. The
Court may also receive cooperation from non-States Parties, and may enter into arrangements or
agreements to provide cooperation. International organizations also provide important support to
the Court. Foremost among these is the United Nations. This Agreement provides for
institutional relations, cooperation and judicial assistance between the Court and the United
Nations while reaffirming the independence of the Court.

Fifteen years after the signing of its founding treaty, one of the main challenges facing the
International Criminal Court is to secure the cooperation of member states in Africa, where it is
being accused more and more of targeting African leaders. In a speech marking International
Criminal Justice Day today, ICC President Sang-Hyun Song said the Court was now a vibrant,
independent international organization but also that it faces threats and that there are those who
refuse to cooperate, leaving more than ten ICC suspects still at large. Sudanese president Omar
Al-Bashirs visit to Nigeria this week was a new example of the ICCs difficulties in getting
member states to implement the Courts arrest warrants. 97

President Omar Hassan al-Bashir of Sudan flew out of South Africa aboard his presidential jet,
just hours before a South African court ruled that the government was legally required to arrest
him. Mr. Bashirs plane left a South African military airport near Pretoria, the capital, unhindered
by the South African authorities who had already been ordered over the weekend by South
Africas High Court to prevent him from departing. Though South Africa is a member of the
International Criminal Court, its government defied the longstanding arrest warrant for Mr.
Bashir, who again eluded international prosecutors seeking to try him on charges of war crimes,
crimes against humanity and genocide related to the conflict in the Darfur region of Sudan. The
fact that South Africa failed to Arrest him is a challenge based on the lack of cooperation. 98

97
http://www.hirondellenews.com/icc/320-collaboration-with-states/34277-170713-lack-of-state-cooperation-is-
iccs-main-challenge
98)
See AU Press Release 002/2012, On the decisions of Pre-Trial Chamber I of the International Criminal Court
(ICC) Pursuant to Article 87(7) of the Rome Statute on the Alleged Failure by the Republic of Chad and the
Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and
Surrender of President Omar Hassan al Bashir of the Republic of the Sudan, 9 January 2012.
 35

The Kenya situation represents another facet of non-cooperation, though still in the context of
State officials (including a sitting President).
 36

Mr Kenyatta and Mr Ruto the sitting President and deputy President of Kenya respectively have
been charged with international crimes following the post-election civil unrest that took place in
2008.99 Nevertheless, notwithstanding the efforts to settle the immunity issue, more challenges
are arising for the ICC, causing delays in the proceedings and generating more doubts about the
ICCs ability to deal effectively with certain categories of defendants. It is the authors
contention that the obstacles that have arisen lately are evidence of Kenyas lack of real
commitment with regard to the prosecution of the crimes perpetrated in 2008. 100 Moreover, the
AU has used the situation to further its aims and objectives, consequently contributing to a
culture of non-cooperation thus severely limiting the ICC effectiveness.

II. 2. 7. Article 98 agreements

As demonstrated above, it is now generally established that the official capacity of an individual
does not exempt that person from substantive criminal responsibility in relation to crimes
prohibited by international law. Thus, even senior state officials may be held criminally liable for
crimes under international law. This principle is reflected in Article 27(1) of Rome Statute.
Additionally, Article 27(2) of the same law provides that: 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 a person. 101 When read on its own,
Article 27 suggests that state officials may never rely on the immunity provided by international
law to avoid the jurisdiction of the ICC.

However, the effect of Article 27 is limited by Article 98(1), which provides 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.

99)
Prosecutor v. Uhruru Muigai Kenyatta, ICC-01/09-02/11 (Trial Chamber) and Prosecutor v. William Samoei
Ruto and Joshua Arap Sang, ICC-01/09-01/11 (Trial Chamber); charges were confirmed for both Mr Kenyatta and
Mr Ruto on 23 January 2012.
100)
The civil unrest that erupted after the 2007-2008 elections led to the death of about 1,200 people, the
displacement of over 300,000 people and numerous counts of rapes, sexual violence and other forms of assaults.
With regard to the crimes against humanity it was stated that senior political figures were behind the planning and/or
financing of the crimes; see http://www.icckenya.org/background (last accessed on 27 May 2015).
101
Article 27(1)(2) of the Rome statute
 37

Article 98 of the Rome Statute gives an opportunity for states to engage in international
agreements prevailing over the Rome Statute regarding requests for surrender of suspects. This
opportunity is taken by the United States when promoting bilateral, so called, Article 98
agreements. In signing them, states help in exempting Americans from the jurisdiction of the
ICC, since they agree not to surrender possible American suspects to the ICC.102

These agreements have been signed by both members and non members to the Rome Statute
while it is debated whether they are legal or not under international law, which this dissertation
aims to clarify. The authors reach the conclusion that there is not one single answer to the
question of the legality of Article 98 agreements. Depending on what international obligations
the United States has, and possible obligations of the other state, Article 98 agreements can be
either legal or illegal under international law.103 What is clearer, however, is that member states to
the Rome Statute oppose the objective of the statute by signing an Article 98 agreement if it
leads to an accused escaping trial. Simply by signing an agreement, the issue is still being
discussed since the objective of the Rome Statute is to end impunity, not to promote prosecution
by the ICC.104

Thus , this contradiction is a challenge to ICC prosecution to the fact 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, 105 state can willingly refuse to
cooperate with the court basing on this contradiction.

II. 2.8. Security Councils lack of follow-up support for its ICC referrals

The International Criminal Court (ICC) has faced many challenges since its creation.
106
Nonetheless, securing an arrest for its suspects has been the Courts challenge. As the first
president of the ICC, Philippe Kirsch, noted executing arrest warrants is one of the Courts most

102
Anna Rosn and Veronica Jormus Gruner, Article 98 Agreements: Legal or Not? Spring 2007.
103
Ibidem.
104
Ibidem.
105
Article 98 of Rome statute
106
Richard Dicker & Elizabeth Evenson, ICC Suspects Can HideAnd that is the Problem, JURIST (Jan. 24, 2013),
available online; Nick Donovan, Introduction, in The Enforcement of International Criminal Law (Nick Donovan,
ed., Aegis 2009),
 38

difficult challenges.107 The ICC faces these problems because it has no option but to rely on State
parties to implement arrests.108

Getting suspects arrested becomes even more problematic when the Security Council refers a
situation to the ICC because, in the case of such referral, the target State has not agreed to an
Office of the Prosecutors (OTP) investigation and is therefore unlikely to cooperate with the
ICC and help effectuate arrests.109 Sudans lack of cooperation with the ICC after the Darfur
referral is a good illustration of this problem. 110 Thus, the Councils follow-up support to help
ensure States cooperation becomes particularly important. As of now, however, the UNSC has
neither supported the ICC nor insisted on cooperation after its referrals111.

Furthermore, the Security Council has declared that the referred situations are a threat to
international peace and security112. So, it seems plausible that a failure by States to cooperate
with the Court and help execute the arrests for suspected perpetrators of atrocities after the
referral would also constitute a threat to peace and security 113. Hence, it would make sense if the
UNSC would continue to support the Court under its Chapter VII enforcement powers, since
willing the ends of maintaining or restoring international peace and security also requires
willing the means of taking the steps towards such realization 114. As such, a referral should only
be the beginning of Councils continued ICC assistance and support. It is needed that UN
Security Council help ICC in getting suspects arrested becomes even more problematic when the

107
See Gwyneth C. McClendon, Building the Rule of International Criminal Law: The Role of Judges and
Prosecutors in the Apprehension of War Criminals, 10 Hum. Rts. Rev. 349, 350 (2009)
108
Christopher D. Totten & Nicholas Tyler, Arguing for an Integrated Approach to Resolving the Crisis in Darfur:
The Challenges of Complementarity, Enforcement, and Related Issues in the International Criminal Court, 98 J.
Crim. L. & Criminology 1069, 1107 (2008).
109
Cedric Ryngaert, The International Prosecutor: Arrest and Detention, Working Paper No. 24 (Apr. 2009)
110
Idem. P.7
111
Statement and Recommendations on the Open Debate of the Security Council on Peace and Justice, with a
Special Focus on the Role of the International Criminal Court, Amnesty Intl Public Statement, IOR 53/021/2012
(Oct. 16, 2012),
112
See S.C. Res. 1593, U.N. Doc. S/RES/1593 (Mar. 31, 2005), S.C. Res. 1970, U.N. Doc. S/RES/1970 (Feb. 26,
2011).
113
See Annalisa Ciampi, Current and Future Scenarios for Arrest and Surrender to the ICC, 66 ZaRV 719 (2006);
see also Kevin Jon Heller, Pre-Trial Chamber Puts Ball in Security Councils Court Re: Chad, Opinio Juris (Apr. 3,
2013).
114
The UN Security Council and the International Criminal Court, Chatham House Intl Law Meeting Summary 18
(Mar. 16, 2012), Lawrence Moss, The UN Security Council and the International Criminal Court: Towards a More
Principled Relationship, FES Intl Pol. Analysis (Mar. 2012).
 39

Security Council refers a situation to the ICC and didnt help in follow up to see if state
obligation to prosecute or extradite is obeyed.115

It is clearly observed that the Security Council doesnt make a continuous follow up after
referring the case to the Court which is also the challenge to the ICC especially in arrest of
suspects of core crimes.

II. 2. 10. Security Council Requests for Deferral

Under Article 16 of ICC statute, the ICC Prosecutor may not commence or proceed with an
investigation or prosecution, if the SC, acting under Chapter VII of the UN Charter, has
requested a deferral. Such a deferral of investigation or prosecution lasts for 12 months but may
be renewed by the SC. This provision was inserted as a means of providing limited political
control over the work of the Prosecutor. Whilst it was not accepted that the SC should have
general political control, it was conceded that there may be circumstances where the exercise of
jurisdiction by the Court would interfere with the resolution of an ongoing conflict by the SC. In
those limited circumstances, the ICC parties have accepted that the SC, acting under Chapter VII,
may demand that the requirements of peace and security are to take precedence over the
immediate demands of justice.

Given that ICC parties have accepted obligations under the Statute and non-parties have not, it is
more likely that the SC will exercise its powers under Article 16 in relation to non-parties. At the
time of writing, the only SC requests for deferral of ICC prosecution relate to officials and
personnel of non-parties taking part in operations established or authorized by the UN116.

Thus, the fact that ICC wait for the decision of UN Security Council it seems like a challenge
and helps in hiding evidence within the time limit before the beginning of investigation for
crimes committed by state officials.

II. 2. 11. U. S opposition to ICC jurisdiction

115
See the Rule of Law: The Security Council and Accountability, 1 S.C. Rep. (Jan. 18, 2013), hereinafter The Rule
of Law.
116
Article 16 of Rome statute
 40

The United States is not party to the Rome Statute and it always opposes to the ICC jurisdiction
over its nationals without its consent. As a consequence to its opposition to ICC, it uses legal and
political tools to make sure that ICC has no power to exercise jurisdiction over US citizen. For
achieving this, US enact rules prohibiting the cooperation with ICC together with state parties to
it and they enter into agreement with other states barring the surrender of US nationals to ICC. 117
Those agreements are commonly called Bilateral Immunity Agreements (BIAs)

The intention of US is to protect its national against ICC jurisdiction in case they commit
heinous crimes, especially in the context of armed conflict, where accountability is virtually
nonexistent. It is unconscionable for the United States to actively undermine the court before it
has had an opportunity to prove itself a truly independent and impartial arbiter of international
justice. The Bush administrations broader unilateralist agenda, evident in its anti-ICC policy,
threatens to significantly weaken the rule of law.118

The fact that US can enter in agreements in order to protect its citizen against the ICC
jurisdiction it is a challenge to the court whereby US citizen can commit the crime which falls in
ICC jurisdiction the objective of the court to end impunity will not be achieved.

II. 12. Universal jurisdiction to core crimes

The principle of universal jurisdiction is classically defined as a legal principle allowing or

requiring a state to bring criminal proceedings in respect of certain crimes irrespective of the
location of the crime and the nationality of the perpetrator or the victim. 119 Universal jurisdiction
allows for the trial of international crimes committed by anybody, anywhere in the world. First,
there are some crimes that are so grave that they harm the entire international community.
120
Secondly, no safe havens must be available for those who committed them. . Even though
these justifications may appear unrealistic, they clearly explain why the international community,

117
Schabas William A, the international criminal court: A commentary on the Rome Statute, 2010, p. 450-452.
118
T. Jennifer, E. Andrew, U.S. Opposition to the International Criminal Court, Vol. 30 No. 1
119
See e.g. Kenneth C. Randall, Universal jurisdiction under international law, Texas Law Review, No. 66 (1988),
pp. 7858; International Law Association Committee on International Human Rights Law and Practice, Final
Report on the Exercise of universal jurisdiction in respect of gross human rights offences, 2000, p. 2. It should be
noted that the principle of universal jurisdiction is not per se limited to criminal jurisdiction and could be extended,
for instance, to civil responsibility. This is e.g. the case in the United States with the Alien Tort Act (28 U.S.C. para.
1350) and the well-known decision Filartiga v. Pena-Irala 630F2d876 (2d Cir. 1980). However, considering the
framework of this article, only universal jurisdiction linked to individual criminal responsibility will be considered
120
Mary Robinson, Foreword, The Princeton Principles on Universal Jurisdiction, Princeton University Press,
Princeton, 2001, p. 16.
 41

through all its components states or international organizations must intervene by prosecuting
and punishing the perpetrators of such crimes. Universal jurisdiction is a matter of concern for
everybody.121 The recognition of universal jurisdiction by the state as a principle is not sufficient
to make it an operative legal norm.

There are basically three necessary steps to get the principle of universal jurisdiction working:
the existence of a specific ground for universal jurisdiction, a sufficiently clear definition of the
offence and its constitutive elements, and national means of enforcement allowing the national
judiciary to exercise their jurisdiction over these crimes122. If one of these steps is lacking, then
the principle will most probably just remain a pious wish. Several attempts to identify the content
and concrete meaning of universal jurisdiction have been made through meetings of experts 123.
In practical terms, the gap between the existence of the principle and its implementation remains
quite wide. From a comparative law perspective, states implement the principle of universality in
either a narrow or an extensive manner124. The narrow concept enables a person accused of
international crimes to be prosecuted only if he or she is available for trial, whereas the broader
concept includes the possibility of initiating proceedings in the absence of the person sought or
accused (trial in abstentia)125.

This deeply affects the way in which the principle is implemented in actual fact. International
law sources often refer to the narrow concept126, but the decision to refer to the broader concept
is quite often a national choice. However, even though some states such as Belgium or Spain
have made some efforts to give concrete effect to the principle of universal jurisdiction by
amending their penal code, it has in most cases remained unimplemented, thus more theoretical
than practical.127 This principle some time became a challenging aspect to the prosecution of state
officials for core crimes because states use this principle to avoid that those authorities can be
sent before ICC for prosecution saying that they are also competent and authorized by the law.
121
X. Philippe , The principles of universal jurisdiction and complementarity, volume 88 Number 862 June
2006Volume 88 Number 862 June 2006Volume 88 Number 862 June 2006
122
X. Philippe , The principles of universal jurisdiction and complementarity, volume 88 Number 862 June 2006V
available online at https://www.icrc.org/eng/assets/files/other/irrc_862_philippe accessed on 23 June 2015
123
X. Philippe , 0p cit p. 379.
124
Antonio Cassese, International Criminal Law, Oxford University Press, Oxford, 2003, p. 285.
125
On this issue of trial in abstentia see the ICJ case Democratic Republic of Congo v. Belgium, Warrant Arrest 11
April 2000 Case, 14.02.02. ICJ Rep. 2002
126
See, e.g., the four Geneva Conventions of 1949 and 1977 Additional Protocol I thereto regarding grave breaches
of those Conventions (i.e. of international humanitarian law) or Article 7 of the Convention against Torture, The
narrow concept seems to be given preference by a number of international treaties as being more realistic
127
X. Philippe , The principles of universal jurisdiction and complementarity, volume 88 Number 862 June 2006V
available online at https://www.icrc.org/eng/assets/files/other/irrc_862_philippe accessed on 23 June 2015
 42

II. 3. A brief background to the Sudans president, Omar Hassan al-Bashir case

On July 14, 2008, the chief prosecutor of the International Criminal Court (ICC) called for an
arrest warrant to be issued against Bashir. He was cited for crimes committed against humanity,
war crimes, and genocide in Darfur. The Sudanese government, which was not a party to the
treaty creating the ICC, denied the charges and proclaimed Bashirs innocence. On March 4,
2009, the ICC issued an arrest warrant for Bashir the first time that the ICC sought the arrest of a
sitting head of state charging him with war crimes and crimes against humanity but not with
genocide; in July 2010 the ICC issued a second arrest warrant, this time charging Bashir with
genocide128.

The case against Sudans president, Omar Hassan al-Bashir, starkly illustrates the courts
profound limitations, and the reason it is such a lightning rod. The court can indict even sitting
heads of state, as it did with Mr. Bashir. But it has no power to handcuff them and put them in the
dock. Instead, the court relies on other heads of state and governments to act as its sheriffs
around the world, and for the last six years, many of them have let Mr. Bashir flout the courts
arrest warrant. The current example is a case where South Africa let Mr. Bashir fly home despite
an order from South Africas High Court instructing the nations authorities to prevent him from
leaving the country. South Africa was one of the strongest supporters of the court and a leading
founding member, said Fatou Bensouda, the international courts chief prosecutor, said by
telephone from Norway. Im not in a position to know why that dynamic changed.129

Given its inability to arrest suspects on its own, said Alex Whiting, a former attorney with the
I.C.C. prosecutors office and now a law professor at Harvard, the International Criminal Court
will only be as relevant as the international community allows it to be. South Africa was only
the most recent country to let Mr. Bashir visit and leave without arrest. It was a reminder, Mr.
Whiting argued, of how hard the court must work to overcome the perception that it is targeting
only Africans and a reminder of how justice cannot be meted out unless the world powers invest
in it.

Bashir will ultimately be arrested, he said, only if the Security Council and countries like the
U.S. and other important actors undertake a sustained effort to prioritize his arrest and make it a

128
Kenneth Ingham , Omar Hassan Ahmad al-Bashir
129
Somini Sengupta, Omar al-Bashir Case Shows International Criminal Courts Limitations, June 15, 2015
 43

central part of their diplomatic efforts. But while the United States can pressure other nations to
act, it faces a major credibility problem of its own. Unlike dozens of African nations, some of the
worlds most powerful countries, including the United States, Russia and China, have not even
joined the International Criminal Court, officially refusing to submit to its authority. In 2011, Mr.
Bashir visited China, where he was greeted by an honor guard and he met with Chinas president
at the time, Hu Jintao. Mr. Bashir called him a friend and brother. Mark Ellis, president of the
International Bar Association, said the latest Bashir drama further weakened the authority of the
court, through no fault of its own130.

II. 4. Strength and Weaknesses of ICC

The International Criminal Court (ICC) was established as an international body to deal with
serious violations of international human rights law, such as genocide, war crimes, and crimes
against humanity, in the wake of the genocides in the former Yugoslavia and Rwanda.
The ICC was the natural logical step after the Nuremberg Trials. The ICCs efficacy is often
compared unfavorably to the Nuremberg Trials, without taking into consideration the fact that
the Nuremberg Trials were victors trials. The Allied Powers had all their accused in custody, had
access to all the relevant documents, and had the military strength to bring the accused into
custody if needed. The ICC, by comparison, is active in current war zones and cannot dish out
justice retrospectively. It has no independent mechanism by which to bring accused persons into
custody and has a much harder time of getting its hands on relevant documents.

The ICC must be taken independently as an international body endeavoring to increase

accountability within the international community. The founding document of the ICC is the
Rome Statute, which is composed of three main principles131

First, the principle of complementarity, which dictates that the court may assume jurisdiction
only when national courts are unable or unwilling to exercise jurisdiction, with national courts
taking priority over the ICC. Second that the ICC is designed only to deal with the most serious
crimes which concern the international community. These include genocide, war crimes, and
crimes against humanity. Third, that the ICC should remain within the realm of customary
international law, in order to be widely accepted by the majority of States, to ensure a wide

130
Ibidem
131
X Free essays, research papers, and term papers at Anti Essays available online http://www.antiessays.com/free-
essays/Strengths-And-Weaknesses-Of-The-Icc-324526.html on 26/08/2015
 44

enough jurisdiction to be effective in curtailing serious violations of international human

rights132.

The ICC depends on the cooperation of the states that have ratified it to turn over suspects, and
help in the information gathering process to speed up and actually complete fair and efficient
trials. Unfortunately for the ICC, this is not always the case. Specifically, many instances have
occurred since the inception of the court where the prosecutor has the evidence, the indictment
has been issued, but no trial ensues simply because the indicted is not turned over to the ICC for
trial. Therefore the suspect remains at large as an international criminal. This is especially the
case with Omar Al-Bashir of the Sudan. Due to the lack of cooperation, heads of states indicted,
as well as powerful military leaders continue to purge local populations without having to answer
to their crimes133.

Despite ratification of the Rome Statute, the perception of state cooperation and the actuality of it
can be vastly different. This lackadaisical approach by party states continues to frustrate the court
and its process. Something must be done to ensure that criminals indicted by the court appear at
the court. The final major flaw of the ICC definitely stems from the lack of participation by three
permanent members of the UN Security council. As of this text, China has not signed the Rome
Statute, and neither the United States nor Russia has ratified it. In fact, as of the Bush
Administration actions of 2002, the United States actually unsigned it. This lack of participation
certainly hinders the ability to enforce the laws instituted by the court. The lack of U.S.
participation especially hinders any palpable advancement of the court134.

While the U.S. does deploy many troops overseas each year, full participation from the U.S. and
the other permanent members of the Security Council is essential to the survival and
effectiveness of the court. Granted veto power for permanent member status, if any of these three
powers considers an indictment contradictory to the agenda of their nation, they can veto the
indictment and allow the crimes and the perpetrator to go on unpunished. Not only is the U.S. not
signing or party to the Rome Statute, they had established a confrontational approach to the
Statute under the Bush presidency. Therefore, the overall lack of Security Council support which

132
Ibidem
133
Daniel Donovan, International Criminal Court: Successes and Failures, International Policy Digest, March 2012
134
Ibidem
 45

still exists, even from the teetering U.S., will need to be resolved in order for the ICC to reach its
full potential.135

Overall, despite a strong foundation laid out at the Rome Conference, the ICC has had few
tangible successes since its inception. Some of this can be attributed to the youth of the court, but
much can be realized specifically from the three major flaws previously discussed, the ineptness
of the prosecutors office, the unwillingness of states party to the treaty to cooperate with the
wishes of the court, and the lack of support from permanent members of the UN Security
Council which holds veto powers over the cases of the ICC.

But also concerning the strength, the court now has formal investigations underway in Darfur,
the DR Congo's Ituri district, northern Uganda and the Central Africa Republic targeting some of
the world's worst atrocities in recent years. He has issued arrest warrants in each of these cases,
and has suspects in custody in the DR Congo and Central Africa Republic cases on charges of
war crimes and crimes against humanity. He's targeted the gamut of atrocities, ranging from
sexual slavery to recruitment of child soldiers, and from torture to mass murder.

After a slow start in the Darfur investigation, he's now zealously pursuing those responsible for
the atrocities there, and has threatened to move higher up the chain of command and to broaden
his investigations into more recent crimes, including by anti-Khartoum rebels136.

I can conclude this chapter by saying that ICC has experienced many challenges in the
prosecution of state officials because of their immunities, but we have to underline that those
immunities are not a bar to ICC jurisdiction. However because of immunities the arrest of state
officials is a big challenge to ICC. The following chapter will deal with remedies or measures
which can be taken in order that ICC mission can be successful even in the prosecution of state
official.

135
Nick Grono, the International Criminal Court: success or failure? 9 June 2008

136
Daniel Donovan, op cit p. 3.
 46

CHAP III. IDENTIFICATION OF REMEDIES TO FACILITATE ICC JURISDICTION

IN THE PROSECUTION OF STATE OFFICIALS

This chapter aims at providing different remedies which can be adopted for the purpose of
helping ICC to be a successful International Criminal Court in order to achieve its goals of
ending impunity for core crimes. The subsequent are remedies that the researcher assumes to be
used for handling the challenges faced by ICC in the prosecution of state officials which will
help the court to exercise its jurisdiction without any obstacle and achieve its objective.

III. 1. Adoption and amendment of domestic laws

The creation of a system of international jurisdiction, that the Rome Statute tries to achieve, rests
on the premise that the primary competence and authority to initiate investigations of
international crimes rests with States national jurisdictions. The statute therefore recognizes that
States have the jurisdiction and the primary obligation to detect, investigate, prosecute and
adjudicate the most serious international crimes, both under applicable international law and the
 47

Rome Statute137. This recognition is reflected in the principle of complementarity (found in the
Preamble, Article 1 and Article 17 of the Rome Statute), which is the foundation of the ICC
jurisdiction. Complementarity means that states have the primary obligation to investigate and
prosecute those responsible for international crimes, but also that the Court will only intervene
when states do not have the genuine will or the capacities to do so. Due to the limited resources
of the Court, it is essential that State fulfill this primary responsibility 138.

To this effect, the first and minimal condition enabling States to abide to this obligation of
accountability for genocide, crimes against humanity, war crimes and crime of aggression is the
existence of legislation that incorporates in their National law the crimes and general principles
of law contained in the Rome Statute. All states parties will therefore need to modify their
national law in some way to meet this obligation, even monist States. Indeed, although for
monist states, the ratification of an international treaty is sufficient to be considered as part of
the domestic law, it may not be sufficient to meet the obligations of the Rome Statute and allow
in practice judges to apply it in Court as it contains a number of legal obligations that require the
adoption of legislative and executive measures, as well as judicial practice, to comply with the
overall objective of putting an end to impunity for the most serious crimes of concern to the
International Community was a whole139.

As of today, only one State has interpreted the Statute as directly applicable in its domestic legal
order, but only in respect of a limited sector of its domestic jurisdiction: The Democratic
Republic of the Congo (DRC) in respect to its military justice system. Notwithstanding its
monistic approach to international legal obligations, the DRC had to enter into an ad hoc
framework (bilateral) agreement to secure effective cooperation between its authorities and the
ICC140. So it is needed that states adopt and amend their national laws so that they can harmonize
then in compliance with the Rome Statute. Article 99 of Rome statute states that State Parties
should provide assistance to the Court so long as that assistance is not prohibited by the States

137
http://www.pgaction.org/programmes/ilhr/icc-legislation.html accessed on 15/07/2015
138
Article 1 and Article 17 of the Rome Statute
139
See Rome Statute Preamble
140
The UN Security Council and the International Criminal Court, Chatham House Intl Law Meeting Summary 18
(Mar. 16, 2012), Lawrence Moss, the UN Security Council and the International Criminal Court: Towards a More
Principled Relationship, FES Intl Pol. Analysis (Mar. 2012).
 48

national law141, so in case domestic law contradicts with Rome statute it is a challenge which can
also be handled by adoption and amendment of domestic laws.

III. 2. Enforcement of arrest warrants and the duty to surrender

Arrest and surrender of suspects of core crimes is an issue of fundamental importance for the
ICC operation. Without the presence of accused, trials cannot be held and justice will not be
done. Indeed, the assembly of state party has underlined the negative impact that non execution
of the courts request can have on ability of the court to execute its mandate , in particular when
it concerns state officials subject to arrest warrants142.

However the International Criminal Court lacks an enforcement mechanism and has to rely on
the cooperation of both State parties and non-party States in the arrest and surrender of the
perpetrators of crimes under its jurisdiction. Under the Rome Statute, State Parties obligation to
cooperate with the court in such situations is absolute.

143
States, may however, refuse to comply with the courts cooperation request when they receive
competing requests for the extradition of a suspect or the same conduct for which the court is
144
seeking that persons surrender the cooperation request is prohibited by the States national
law the cooperation request would make the state party act inconsistently with its obligations
under international law or diplomatic immunity of a person or property of a third state the
cooperation request has problems that may impede or prevent the State Party from executing the
request concerns that suspects human rights will be violated once they are arrested and
surrendered to the court and sovereignty claims145.

International criminal tribunals typically have no police force of their own. In order for their
arrest warrants to be effectuated, they need to enlist the support of States. In the current
decentralized and indirect system of international criminal law enforcement, States are indeed

141
Article 99 of Rome statute.
142
Resolution ICC-ASP/11/Res.5Cooperationadopted 21November 2012, para.2.
143
Charter of the International Military tribunal, (Nuremberg Charter), <avalon.law.yale.edu/imt/imtconst.asp>, 16 October 2011
144
See Teodor Meron, From Nuremberg to the Hague, 149 Military Law Review (1995) 107,109. This is in sharp contrast
to the ICC where the Court lacks a police orce and individuals to beapprehended are often in another country
145
http://www.academia.edu/3053801/The_Cooperation_Regime_of_the_International_Criminal_Court visited on
20/07/2015.
 49

the unavoidable addressees of international criminal tribunals requests for arrest and surrender
of inductees146. Importantly, without State assistance, international criminal justice will remain
elusive147

Thus it is needed that states enforce the arrests warrants issued by ICC against state officials for
core crimes so that the objective of the court can be achieved but also ICC should be able to
oblige states to surrender state officials suspects of core crimes, to obtain information, accessing
witnesses, enforce arrest warrants and means to enforce judgment.

III. 3. Revision of article 98 of Rome Statute

One of the main obstacles of the International Criminal Court to achieving its objectives of
ending impunity for the most serious crimes of concern to the international community is the
difficulty in arresting suspects. One of the obstacles to arresting suspects is found within the
Rome Statute itself. There is a tension between Article 27 which removes immunities of senior
government officials and Article 98(1) which requires the Court not to issue requests for
cooperation that would result in States Parties violating their obligations to provide immunities
to senior officials of other States under customary international law. Some international legal
scholars and organizations, including the African Union, have argued that Article 98(1) is an
exemption for States Parties not to cooperate in the arrest of persons subject to an arrest warrant
of the Court, when such individuals are high-ranking government officials of non-States Parties
and should be accorded personal immunities148.

The weaknesses in the Rome Statute are illustrated by the case study of the ICC's indictment of
President Al Bashir.' The Rome Statute allows the prosecutor to indict an individual that 1)is a
national of a member state; 2) commits a crime on the soil of a member state; or 3) is a national
146
Cedric Ryngaert , the international prosecutor: arrest and detention, Working Paper No. 24 - April 2009 p. 5
147
See, e.g., A. Cassese, On the Current Trends towards Criminal Prosecution and Punishment of Breaches of
International Humanitarian Law, 9 European Journal of International Law 2, 13 (1998) (The ICTY is very much
like a giant without arms and legs it needs artificial limbs to walk and work. And these artificial limbs are state
authorities. If the cooperation of states is not forthcoming, they cannot fulfill their functions.); L. Arbour, The
Status of the International Criminal Tribunals for the Former Yugoslavia and Rwanda: Goals and Results, 3 Hofstra
Law & Policy Symposium 502 (1998) (If I may use the colorful image used by President Cassese in describing the
Tribunal, which he called a giant without arms and legs, I am determined to put these limbs in place); W.W. Burke-
White, Proactive complementarity: the International Criminal Court and National Courts in the Rome System of
International Justice, 49 Harv. Intl L.J. 53, 65 (2008) (Without a direct means to arrest inductees and in the face of
limited state cooperation in apprehending suspects, the prospect that the ICC courtroom in The Hague will sit largely
empty for the foreseeable future is all too real.).
148
Tanya Sukhija, Head of State Immunities and Article 98 of the Rome Statute: Interpretations That Avoid
Obstacles to Cooperation in the Execution of ICC Arrest Warrants, March 10, 2014, p1.
 50

of a non member state when the UN Security Council referred the situation to
theprosecutor.189The UN Security Council referred the Darfur situation to Prosecutor Moreno-
Ocampo, and he indicted President Al Bashir for war crimes, crimes against humanity, and later
for genocide for President Al Bashir's part in the atrocities that occurred inDarfur.1If the UN
Security Council had not referred the Darfur situation to Moreno-Ocampo, the ICC would not
have jurisdiction over President Al Bashir because Sudan is not a member state of the ICC and
President Al Bashir committed the alleged crimes in Sudan. The ICC has no ability to bring
President Al Bashir to The Hague without the assistance of its member states, and because Sudan
is not a member state, the ICC has more difficulty in arresting him.

Under the Rome Statute, the ICC has the ability to arrest President Al Bashir if he travels to a
member state because member states are obligated to cooperate with the ICC's requests. The ICC
twice requested that all member states arrest and surrender President Al Bashir149.

The opportunity to bring the fugitive to justice presented itself twice: the first, when he traveled
to Chad and the second when he went to Kenya. Both countries refused to arrest him. Prior to his
visit to both countries, the AU issued a decision to its member states (Chad and Kenya are both
AU members) that insisted that they refuse to comply with the ICC's indictment of President Al
Bashir.' The AU cited Article 98 of the Rome Statute for justification that the AU states do not
have to comply with the ICC's request.' The AU claimed that under Article 98, President Al
Bashir has immunity as a sitting head of state and, therefore, cannot be prosecuted. Although the
Rome Statute specifies that heads of state do not have immunity, it does not specify whether the
provision only applies to member states.

It is confusing because the Rome Statute includes that there is both no immunity for heads of
state and that there can be diplomatic immunity under Article 98(1). Additionally, Article 98(2)
provides that states do not have to comply with the ICC when they have prior agreements.
Because Chad and Kenya are members of the AU, they have an agreement with the AU. Chad
and Kenya can argue that because the AU's position conflicts with the ICC, they do not have to
follow the ICC's requests. The Rome Statute is vague in regard to immunity and leaves its
member states with little certainty and a lot of flexibility. In addition to the member states having

149
Gwen P. Barnes, The International Criminal Courts Ineffective Enforcement Mechanisms: The Indictment of
President Omar Al Bashir Fordham International Law Journal Volume 34, Issue 6 2011 p.1584 available online at
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2313&context=ilj
 51

little knowledge as to whether they must cooperate, the Rome Statute is also largely silent on
repercussions for member states that are in breach of the Rome Statute150.

The Rome Statute merely says that the situation will be referred to the UN Security Council, but
there is no further explanation. Even if Chad and Kenya thought they had the duty to comply
with the ICC's requests, the lack of guidance they received from the Rome Statute made it
possible for them to believe that there would be no consequences upon a breach.

When faced with the choice of refusing to arrest Al Bashir with no clear repercussions or
arresting him and facing the possibility of further instability in the region and tension from
Sudan, the choice seems obvious.

Thus, Article 98 should be amended to indicate specifically what constitutes immunity and
excusal in its provisions. The confusion is so problematic, however, that member states are using
it to make excuses not to cooperate. As discussed above, Chad and Kenya can claim that
President Al Bashir has immunity from prosecution as a head of state under Article 98(1).
Additionally, as Rome Statute Article 98(2) seems to say, both countries are excused from
cooperating because of their obligations as members of the AU, which had requested they not
cooperate with President Al Bashir's arrest and surrender to the ICC. Thus, an amendment is
necessary to clarify the priority of the ICC in the hierarchy of a country's international
obligation151

III. 4. Enforcement of duty to cooperate and assistance to the ICC

The success of the International Criminal Court will be determined by the level of cooperation it
receives from States. Having no police force, military, or territory of its own, the ICC will need
to rely on States Parties to, among other things, arrest individuals and surrender them to the
Court, collect evidence, and serve documents in their respective territories. Without this
assistance, the ICC will encounter great difficulty conducting its proceedings. The Rome Statute
of the International Criminal Court'("Rome Statute") recognizes the importance of State
cooperation to the effective operation of the ICC-an entire Part of the Rome Statute is dedicated
to matters of international cooperation and judicial assistance. The duty to cooperate with the
ICC imposed on States Parties by the Rome Statute is twofold: a general commitment to

150
Idem p. 16
151
Ibidem
 52

cooperate, and an obligation to amend their domestic laws to permit cooperation with the Court.
Articles 86 and 88 form the foundation of the obligation on States Parties to cooperate with the
ICC.
According to Article 86,"States Parties shall, in accordance with the provisions of this Statute,
cooperate fully with the Court in its investigation and prosecution of crimes within the
jurisdiction of the Court152."

This general requirement is supplemented by further articles of the Rome Statute and the ICC's
Rules of Procedure and Evidence that govern specific aspects of cooperation in such contexts as
the arrest and surrender of individuals and the collection of evidence. Article 88 obliges States to
adopt domestic laws to permit cooperation with the ICC. Despite the rapid pace of the
ratification of the Rome Statute, very few States to date have passed the domestic laws necessary
to cooperate with the ICC.

However, it is very important that all States Parties adopt comprehensive legislation
implementing the obligations under the Rome Statute by the time the ICC is established, likely in
2002. This will allow the Court to begin its work immediately, without being repeatedly
frustrated by States that do not yet have laws in place that allow them to comply. So
enforcement of duty to cooperate is very important issue and all state should adopt domestic law
enforcing this duty so that ICC achieve its goal easily153 but UN also should put in place
measures to states and governments which intentionally refuse to cooperate with the court in
order to safeguard their own interests.

III. 5. UN Security Council follow-up support

The International Criminal Court (ICC) has faced many challenges since its inception.
Nonetheless, securing an arrest for its suspects has been the Courts Achilles heel. The ICC
faces these problems because it has no option but to rely on State parties to implement arrests.
Getting suspects arrested becomes even more problematic when the Security Council refers a
situation to the ICC because, in the case of such referral, the target State has not agreed to an
Office of the Prosecutors (OTP) investigation and is therefore unlikely to cooperate with the

152
Valerie Oosterveld., Mike Perry, John Mc Manu, the Cooperation of States With the International Criminal Court,
Fordham International Law Journal Volume 25, Issue 3 2001 p.767 available online at
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1834&context=ilj visited on 21/July 2015
153
Ibidem.
 53

ICC and help effectuate arrests. Sudans lack of cooperation with the ICC after the Darfur
referral is a good illustration of this problem.

Thus, the Councils follow-up support to help ensure States cooperation becomes particularly
important. As of now, however, the UNSC has neither supported the ICC nor insisted on
cooperation after its referrals154.

Furthermore, the Security Council has declared that the referred situations are a threat to
international peace and security. So, it seems plausible that a failure by States to cooperate with
the Court and help execute the arrests for suspected perpetrators of atrocities after the referral
would also constitute a threat to peace and security. Hence, it would make sense if the UNSC
would continue to support the Court under its Chapter VII enforcement powers, since willing
the ends of maintaining or restoring international peace and security also requires willing the
means of taking the steps towards such realization. As such, a referral should only be the
beginning of Councils continued ICC assistance and support.

Therefore, the Security Council should change its policy from simply referring situations to the
ICC to a policy of using its Chapter VII powers to provide follow-up support and push States to
assist the ICC in executing arrest warrants 155. Having such a definite policy in place would
clarify what kind of actions, obligations, and sanctions may arise from UNSC referrals in case of
non-cooperation as well as help deal with the threat to peace and security156.

III. 6. Practical independence of ICC

As it is stated in the preamble of the Rome Statute that the court is an independent permanent
court this should be in the practice.157 But it is not understandable how ICC can be independent
while in some cases the initiation of investigation waits for approval of another body like
Security Council. For its effectiveness, the court should be able to initiate investigation on its

154
Statement and Recommendations on the Open Debate of the Security Council on Peace and Justice, with a
Special Focus on the Role of the International Criminal Court, Amnesty Intl Public Statement, IOR 53/021/2012
(Oct. 16, 2012.
155
See Elizabeth Minogue, Increasing the Effectiveness of the Security Councils Chapter VII Authority in the
Current Situations before the International Criminal Court, 61 Vand. L. Rev. 647, 675 (2008
156
See The Relationship Between the ICC and the Security Council: Challenges and Opportunities, Intl Peace
Institute Meeting Notes (Mar. 2013), hereinafter Security Council Relationship,
157
Rome statute preamble& article 1
 54

own accord. In addition to this, the court must also be given its own independent enforcement
bodies.

If so, the court will be able to arrest whoever is alleged of committing international crimes with
fall within its jurisdiction. The independence of the court should come from the theory to
practice. But I cannot forget to remind the court as independent court to work in neutral way not
only basing its investigation in Africa but all over the world.

III. 7. International legal assistance between states

We live in a time where core crimes still occur on a regular basis .These are the crimes the world
has too often vowed to never again accept. In this context, an important recent initiative to
strengthen the international legal framework needed for states to prosecute the perpetrators of
such crimes in their national courts has gone relatively unnoticed. These are the most serious
crimes of concern to the international community as a whole158.

The primary responsibility to prosecute these crimes lies with states 159. Unlike many other
crimes, however, they are not subject to detailed treaty provisions on mutual legal assistance,
including extradition, between states. As a consequence, the prosecution of these crimes in
national courts has often been hindered by the lack of an international legal framework for
cooperation between states.

The treaty framework regulating mutual legal assistance for genocide, crimes against humanity,
and war crimes is limited and outdated. This is because the Genocide Convention and the
Geneva Conventions date from the 1940's, when it was not yet customary to conclude
multilateral treaties with detailed provisions on mutual legal assistance. The Genocide
Convention, adopted in 1948, requires States parties to grant extradition in accordance with
their laws and treaties in force, but lacks more detailed provisions on mutual legal assistance 160.
The four Geneva Conventions of 1949 stipulate an obligation to prosecute or extradite for grave

158
Rome Statute of the International Criminal Court, pmbl., July 17, 1998, 2187 U.N.T.S. 90 (entered into force July
1,2002),availableathttp://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7
9CDC7CF02886/283503/RomeStatutEng1.pd
159
See, e.g.,Jann K. Kleffner, Complementarity In The Rome Statute And National Criminal Jurisdictions 333-336
(2008). See Also Ward N. Ferdinandusse, Direct Application Of International Criminal Law In National Courts 185-
203 (2006).
160
Convention on the Prevention and Punishment of the Crime of Genocide, art. 7, Dec. 8, 1948, 78 U.N.T.S. 277
 55

breaches, which only apply in international armed conflicts, but not for other war crimes 161.
Crimes against humanity are not regulated by any general multilateral treaty, though some crimes
against humanity such as torture are subject to specific treaty regimes. The Rome Statute of the
International Criminal Court addresses cooperation between the International Criminal Court and
States but is not a framework for cooperation between States inter se

The current lack of adequate treaty provisions regarding mutual legal assistance for the core
crimes has in practice often prevented, complicated, or delayed national prosecutions of these
crimes. Some countries, such as Canada and The Netherlands, are bound by their national law to
extradite only on the basis of a treaty. The absence of relevant treaty provisions precludes
extradition of core crimes suspects no matter how willing the state is to cooperate. As recently as
2012, the government of The Netherlands noted that the lack of a relevant treaty basis poses an
insurmountable obstacle to extradition for crimes against humanity since the Dutch constitution
requires a treaty basis for extradition162.

There seems to be a longstanding international consensus, expressed predominantly in soft-law

instruments such as those cited above, that states should cooperate in the investigation and
prosecution of the core crimes. At the same time, treaty provisions regulating that cooperation
between states for genocide, war crimes, and crimes against humanity are limited and outdated.
Practice shows that a multilateral treaty on mutual legal assistance for genocide, crimes against
humanity, and war crimes could provide an important strengthening of the international legal
framework needed to prosecute the perpetrators of such crimes. For some states, such a treaty is
a necessity to offer coercive international cooperation, including extradition, since their national
law precludes it in the absence of a relevant treaty.

161
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field,
art. 49, Aug. 12, 1949, 75 U.N.T.S. 970 [hereinafter First Geneva Convention]; Geneva Convention for the
Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea art. 50,
Aug. 12, 1949, 75 U.N.T.S. 971 [hereinafter Second Geneva Convention]; Geneva Convention Relative to the
Treatment of Prisoners of War art. 129, Aug. 12, 1949, 75 U.N.T.S. 972 [hereinafter Third Geneva Convention];
Geneva Convention Relative to the Protection of Civilian Persons in Time of War art 146, Aug. 12, 1949, 75
U.N.T.S. 973 [hereinafter Fourth Geneva Convention]; see also Protocol Additional to the Geneva Conventions of
12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), art. 88, June
8, 1977, 1125 U.N.T.S. 17512; Second Protocol to the Hague Convention of 1954 for the Protection of Cultural
Property in the Event of Armed Conflict arts 18-19, Mar. 26, 1999, 2253 U.N.T.S. A-3511
162
See Dutch Records of Parliament 20092010, 32 475, nr. 3 p. 8 (in Dutch), available at
https://zoek.officielebekendmakingen.nl/kst-33475-3.pdf
 56

For all states, a modern international legal framework for judicial assistance is bound to enhance
the promptness and effectiveness of that assistance. Even where a requested state is unwilling,
rather than unable to, cooperate, the presence of an international legal framework at least denies
it an easy excuse not to cooperate.

It can also provide a discourse for states to engage on cases where otherwise impunity would
prevail. For example, the case of Hissene Habre, in which Senegal and the African Union are
now taking extraordinary efforts to bring justice to the victims of political killings and systematic
torture allegedly committed by Habre during his rule in Chad 163, shows how successful such
engagement between states on the basis of international law can be. It is needed that states enter
into agreement on extradition and mutual assistance in order to successfully punish or extradite
state official offenders of core crimes to help in ending impunity to such crimes.

III. 7. Increase of States to ratify the Rome statute

Supporting ratification of the Rome Statute of the ICC is a cornerstone objective to making the
membership in the ICC truly global and universal. In order for the ICC to succeed, an increasing
majority of the worlds nations must support the Court. For most nations, the key challenge in
convincing governments to consider ratification is educational. The Coalition plays an important
role in terms of providing accurate and updated information about international justice and the
ICC. The Coalition also assists countries in addressing any possible constitutional and legislative
obstacles to ratification, in addition to actively engaging in efforts to stimulate and generate the
necessary political will for countries to become states parties to the Court. 164

The Coalition has redoubled its ratification efforts in regions of the world, particularly those
underrepresented at the ICC, such as Asia and the Middle East. Political changes in recent years
have indicated a new openness in some countries in which governments have previously been
hesitant to join the Rome Statute system. The CICCs ratification campaign strongly encourages
signatory and non-signatory states alike to entrench their commitment to international justice and
ratify or accede to the Rome Statute. The Coalition has redoubled its ratification efforts in
regions of the world, such as Asia and the Middle East, which are underrepresented at the ICC,

163
See Senegal: Case against Habr Set to Continue, Humanrightswatch.Org, http://www.hrw.org/habre-case (an
overview of the case).
164
XA Universal Court with Global Support > Ratification and Implementation > Ratification of the Rome Statute
available online at http://www.iccnow.org/?mod=romeratification visited on 21/07/2015
 57

and continues to advocacy strongly in non-party states the importance of joining this
fundamental institution165.

In order for the ICC to succeed, a growing majority of the worlds nations must support the Court
and the Rome Statute and actively cooperate in areas such as providing evidence, surrendering
indicted individuals and holding national trials. Thus, the ratification shows the level of will of
states in implementing the Rome statute and cooperation with the court, that why it is very
important that states ratify the statute.

III. 8. Strengthening the principle of Complementarity

The Rome ICC Statute is founded on complementarity because the ICC can only act where
States are unwilling or unable genuinely to investigate and prosecute crimes under its
jurisdiction. The basis of this principle is that those crimes should be addressed at a national
level wherever possible, with the ICC acting as a catalyst, as a guardian and as a last resort.
Widespread or systematic violations of international criminal law generally occur as part of a
plan or policy to commit such crimes, so when the time comes to address these crimes, there will
be a wide pool of potential defendants and a wide number and variety of crimes that could be
tried. While there must be criminal accountability for crimes under international law to satisfy
the principles of the rule of law and the demands of justice, this does not mean that all persons
who allegedly commit such crimes should be prosecuted in an international criminal jurisdiction,
nor does not necessarily mean that all alleged perpetrators should face prosecution in a court of
law.166

Now that the ICC has been operational for several years and has begun formal investigations in
numerous situations, it is increasingly important to assess and give support to the practical
operation of the principle of complementarity and how the ICC is achieving its goals to bring an
end to impunity, help re-establish the rule of law, provide justice for victims and protect
vulnerable groups from abuse. Within this context, both the willingness and the ability of
governments to address violations of international humanitarian law at the domestic level must
be addressed. The principle of complementarity requires States to amend their national laws by
rejecting immunity of government officials.
165
Ibidem.
166
X,Promoting implementation of the principle of complementarity available online at
http://www.npwj.org/ICC/Promoting-implementation-principle-complementarity.html accessed on 22/07/2015
 58

If a State follows such request by adopting a procedure law to investigate and prosecute
incumbent senior government officials in its national legal system, the ICC would not exercise its
jurisdiction over a case concerned. If a State selects to do the opposite based on immunity, the
relevant case would be admitted before the ICC for the reason of inability or unwillingness to
investigate or prosecute. Since the ICC has jurisdiction over non-party States, as a non-party
State who has no duty to amend her national law on immunity, might be regarded as a State of
inability that why states should strengthen this principle of complementarity by amending their
domestic law which authorize immunity in order to allow that core crimes can be prosecuted.167

GENERAL CONCLUSION

This research was dealing with the legal analysis of immunity and the prosecution of state
officials before ICC. Normally under customary international law, some state officials including
head of states, prime minister, minister of foreigner affairs and diplomats are granted the
immunity titles which protect them from being subject to the jurisdiction of both national courts
and those of foreigner states. This make them inviolable ad they cannot be tried for crimes
167
Lijun Yang, On the Principle of Complementarity in the Rome Statute of the International Criminal Court,
Chinese Journal of International Law , Volume 4, Issue 1, Pp. 121-132
 59

committed during the exercise of their functions. Apart from state officials immunity, there is a
principle of sovereignty where states cannot intervene in the function of another without the prior
consent of the concerned state.

However, even if state officials cited above are immune from the jurisdiction of their national
courts and foreigner courts, it is worth noting that the rank of immunity is not a bar to the
jurisdiction of ICC as stipulated by Rome Statute in its article 27. It means that state officials
when they commit international crimes falling in jurisdiction of ICC they must be prosecuted
without invoking their immunities provided by customary international law because ICC was
established in order to end impunity by prosecuting everyone wherever they are without any
excuse

Although the Rome statute rejects immunity of state officials, its article 98 accept the immunity
where it does not give power to the ICC to obtain custody of its inductees without the
cooperation of that third state for the waiver of immunity. This demonstrate that if state official
is accused of committing international crime, the court will have first to cooperate with his/her
state in order that the latter waive that immunity so that the perpetrator will be prosecuted by
ICC. But if state refuses to waive that immunity according to article 98 of the Rome Statute, ICC
will not have any power to prosecute him and its objective of ending impunity will not be
achieved. Even if the immunity is not a bar to ICC jurisdiction as provided by article 27 of
Rome statute, immunity is a big challenge to the court to prosecute the state officials especially
for non-party to the Rome Statute.
 60

While the Rome Statute provide in its preamble that the ICC is independent, it is clear that the
court depends totally on the state cooperation because it has no enforcement power on its own
and whenever it raises a warrant to arrest and surrender against persons alleged of core crimes,
there will have no means to have the custody for them. In addition the immunity of those persons
will be a challenge to other states due to the principle of sovereignty.

Here, states may not want to breach duty that they owe to other states and refuse to arrest and
surrender the persons wanted by the court. The court has experienced this situation in the case of
Sudans President Omar Al Bashil referred to the court by UN Security Council but the fact that
Sudan is not party to the Rome Statute as discussed above, Omar Al Bashil has not yet been
arrested to be surrender to the court even by state party to the statute under obligation of
cooperation and assistance to the court. But also states can refuse to arrest and surrender with
intention of shielding their nationals from being prosecuted by the ICC. The example is USA
which is not member of ICC and concludes the article 98 agreements with other states in order to
protect its nationals for being surrender to ICC.

While the first chapter dealt with definition of key concept and the historical background of the
court, the second chapter of this research has been dealing with challenges faced by ICC in
prosecuting State officials having immunity under customary international law then the third
chapter comes in showing different measures (remedies) that can be taken in order to overcome
those challenges for effectiveness of the court and achievement of the goal.

Remedies suggested by the researcher are the following: adoption and amendment of domestic
laws, enforcement of arrest warrants and the duty to surrender, revision of article 98 of Rome
Statute, enforcement of duty to cooperate and assistance to the ICC, UN Security Council
follow-up support, full Independence of ICC, international legal assistance between states,
increase of ratification of the Rome statute.

In this research I have found out some strength and weaknesses of ICC whereby it was clearly
mentioned that it is active in current war zones and cannot dish out justice retrospectively. It has
no independent mechanism by which to bring accused persons into custody and has a much
harder time of getting its hands on relevant documents this is a weakness to one side to the other
side, ICC have achieved different goals like starting investigations in different regions such as
 61

Darfur, the DR Congo's Ituri district, northern Uganda and the Central Africa Republic targeting
some of the world's worst atrocities in recent years. He has issued arrest warrants in each of these
cases, and has suspects in custody in the DR Congo and Central Africa Republic cases on
charges of war crimes and crimes against humanity.

RECOMMENDATIONS

After completing my research I can suggest the following:

 62

The ICC statute should be revised so that I can be clear on article 27 and 98 and adopt a
separate provision which order the national court to assist the international criminal court
in the prosecution of state officials.
The court itself should be independent from any political pressure and establish all
necessary means for arrest of those inductees who are not yet arrested for being tried.

ICC statute should extend the jurisdiction of the court to other international crimes(the
court needs to expand its focus beyond Africa)

States should cooperate efficiently with the court in arrest and surrender of state officials
perpetrators of core international crimes because without arrest and surrender, the ICC
will be useless.

Because the issues of immunity of state officials is becoming an obstacle to the ICC
jurisdiction in prosecuting them, the Security Council should put in place a convention
concerning the automatic waiver of immunity of state officials when they commit core
international crimes especially for head of states because some of them use their
immunity as tool to commit those crime.

All member of Security Council should ratify the Rome statute so that its decision can be
implemented and considered as fair in the eyes of concerned persons and the whole
community.

Security Council should impose sanctions on states which refuse to cooperate and assist
the ICC.

For better function of the court ICC should be decentralized by creating regional and
continental branches.

Permanent members of the Security Council must not exercise their veto power in case
where crimes under the Rome Statute have been committed.

The principle of complementarity should be strengthened by states by amending their

domestic laws which authorize immunity of state officials to avoid that state can be
unable to prosecute them.
 63

BIBLIOGRAPHY

I. Legal instruments.

International legal instruments

1. The UN Convention on Jurisdictional Immunities of States and their property
2. Vienna convention on diplomatic relations of 18 April 1961
3. Vienna convention on consular relation of 1963
4. Convention on the Prevention and Punishment of the Crime of Genocide 0f 1948
5. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field
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11. Charter of the International Military tribunal, (Nuremberg Charter)

Resolutions

1. S.C. Res. 1593, U.N. Doc. S/RES/1593 (Mar. 31, 2005), S.C. Res. 1970, U.N. Doc.
S/RES/1970 (Feb. 26, 2011

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1. Organic Law N 01/2012/ of 02/05/2012 Instituting the Penal Code

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 64

5. M .GRAWITZ, Methological approach of social sciences, 1st edition, Dalloz, 1977

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 65

22. Phil Clark, the Limits and Pitfalls of the International Criminal Court in Africa, Apr 28 2011
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1. AL BASHIR Case
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 66

4. Prosecutor v. Uhruru Muigai Kenyatta, ICC-01/09-02/11 (Trial Chamber) and Prosecutor v.

William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11 (Trial Chamber); charges were
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2. Dr. Y.MUHIRE; Research methodology, ULK, Kigali, March 2014
3. Dr. ZIKAMABAHARI J.D, Public International Law, ULK, October, 2012

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 67

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 68

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