Communications in Humanities Research
- The Open Access Proceedings Series for Conferences
Communications in Humanities Research
Vol. 14, 20 November 2023
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Reasonableness of ICC Judgment of the Bashir Case from the International Status, Clause Conflicts and Scope of Application
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Abstract
This article addresses the International Criminal Court ruling in the Bashir case from the perspectives of the International Criminal Court’s position following the United Nations Security Council’s referral of the case, and the conflict between Articles 27 and 98, which in the Rome Statute, and the rationale of Article 27’s scope of applicability. The immunity ratione personae can be divided in to two parts: Rome Statute and customary international law, which are the principal sources. Sudan is not the contracting party of the Rome Statute, and the Rome Statute only applies to signatories. This essay first contends that the position of the International Criminal Court in the Bashir case has not altered toward a vertical connection after the United Nations Security Council transferred the case. Second, the field of applicability of Article 98 should be broadened, and Article 27’s effective time should not be restricted to the appeals phase. Third, the International Criminal Court cannot demonstrate that there is an existing case in which the immunity of in-service leaders of state has been revoked in international customary law. In the end, this article contends that the International Criminal Court’s ruling of the Bashir case is irrational and insufficiently supported by the facts. Sudan is a third country to the Rome Statute, had its rights violated by the International Criminal Court’s explanation of Article 27.
Keywords
bashir case, immunity ratione personae, waiver of immunity
References
1. Wickremasinghe, C.(2003) Immunities enjoyed by officials of states and international organizations. International Law, 2.
2. Higgins, R. (1995) Problems and process: international law and how we use it. Oxford University Press.
3. Cassese, A. (2002) When may senior state officials be tried for international crimes? Some comments on the Congo v. Belgium case. European Journal of International Law, 13(4), 853-875.
4. Rome Statute. (2011). Article 27.
5. Rome Statute. (2011). Article 98.
6. Akande, D. (2009) The legal nature of Security Council referrals to the ICC and its impact on Al Bashir’s immunities. Journal of International Criminal Justice, 7(2), 333-352.
7. South African Decision. (2015). Paragraph 71-83.
8. Akande, D. (2008) The Bashir Indictment: Are Serving Heads of State Immune from ICC Prosecution?. Oxford Transitional Justice Research Working Paper Series.
9. Malawi Decision. (2011). Paragraph 14.
10. United Nations Charter. (2015). Chapter 7.
11. United Nations Charter. (2015). Article 103.
Data Availability
The datasets used and/or analyzed during the current study will be available from the authors upon reasonable request.
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- Volume Title
- Proceedings of the International Conference on Global Politics and Socio-Humanities
- ISBN (Print)
- 978-1-83558-117-9
- ISBN (Online)
- 978-1-83558-118-6
- Published Date
- 20 November 2023
- Series
- Communications in Humanities Research
- ISSN (Print)
- 2753-7064
- ISSN (Online)
- 2753-7072
- DOI
- 10.54254/2753-7064/14/20230392
- Copyright
- 20 November 2023
- Open Access
- This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license, which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited