African Human Rights Law Journal
On-line version ISSN 1609-073X
VAN DER VYVER, Johan D. Prosecuting the President of Sudan: A dispute between the African Union and the International Criminal Court. Afr. hum. rights law j. [online]. 2011, vol.11, n.2, pp. 683-698. ISSN 1609-073X.
The indictment of the President of Sudan has provoked negative responses from the African Union, including a resolution that instructed member states of the AU not to co-operate with the ICC in arresting the President and surrendering him for trial in the ICC. The AU relied on article 98(2) of the ICC Statute in terms of which the ICC may not proceed with a request for surrender that would require a state to act inconsistently with its obligations under international law with respect to the sovereign immunity of, inter alia, heads of state. However, it has been decided that under the rules of international law, sovereign immunity applies only to prosecutions in national courts and not to prosecutions in an international tribunal, and article 27(2) of the ICC Statute accordingly provides that sovereign immunity shall not bar the ICC from exercising jurisdiction over persons enjoying such immunity. It is argued in this article that article 98(2) contradicts article 27(2): If a head of state does not enjoy immunity against prosecution in the ICC, there is no immunity to be waived by the national state. A pre-trial chamber of the ICC did not base the obligation of state parties (Kenya and Chad) to arrest and surrender the Sudanese President for prosecution in the ICC on the provisions of article 27, but on the fact that the situation in Sudan was referred to the ICC by the Security Council of the United Nations and a passage in the Security Council resolution calling on Sudan and all other parties to the conflict in Darfur to co-operate fully in bringing the President of Sudan to justice. The exact implications of article 98(2) therefore remain unresolved.