Al-bashir

Al-bashir. Second, the decision is correct as a matter of international law. As I wrote in my earlier essay, in my view, the travaux préparatoires of the Rome Statute, as well as other sources, indicate that Article 27 1 of the Rome Statute codifies the customary international law rule that whatever immunities an official might have before national courts cannot be pled as a bar or a defense to criminal responsibility, ratione materiae, before the ICC regarding the jus cogens crimes in the Rome Statute. Article 27 2 complements this provision by ensuring that no procedural immunities bar the ICC from exercising this jurisdiction.

For this reason, Article 27 was the object of virtually no discussion during the Diplomatic Conference, as States understood it to be consistent with the practice of the international community since the establishment of the Nuremberg Tribunal in 1945, as well as the ad hoc tribunals for Rwanda and the former Yugoslavia in the 1990s. Beginning with the issuance of arrest warrants against al-Bashir in 2009 and 2010, however, a campaign was launched arguing that as a head of state, and particularly a head of state of a non-State party to the Rome Statute, al-Bashir was immune from prosecution before the ICC. This short post is not the place to address the complicated issue of , nor the use of Article 98 by the United States to negotiate bilateral immunity agreements, and the invocation of Article 98 by States as a basis for noncooperation regarding the arrest of al-Bashir —.