Abstract

Immunity is a very important concept under international law. Until the formation of international law, the principle has been in existence although the form and shape of it changed. Former President Al Bashir, prior to his dethronement as the President of Sudan has avoided the International Criminal Court (“ICC”) over the years and has been able to travel to both States that are parties to the Rome Statute and States that are not without any consequences. The existence of customary international law immunities makes it difficult for the ICC to be able to discharge its duties without the cooperation of State parties. The silence of the Security Council and its failure to clarify Security Council Resolution 1593 (2005) on whether the resolution indeed removes Sudan’s immunities in order for President Al Bashir to be arrested and surrendered to the ICC equally makes the ICC’s job difficult. This article examines whether there is a justification for South Africa’s failure to abide by its obligations under the Rome Statute when it did not secure and arrest former President Al Bashir. The central aim of this paper is to ascertain whether immunity of Head of States is absolute in customary international law. This paper has as its objective to appraise why States that are signatories to the Rome Statute were unable to comply with the warrant of arrest against former President Al Bashir. The doctrinal research method was adopted in this paper as works of other scholars were examined. This paper concludes that the immunity of heads of states exists in its absolute form because of the existence of some factors such as power of kings and absoluteness of sovereignty and the absence of some factors such as human rights and certain situations of individuals.

Keywords:     Immunity, Umar Al Bashir, ICC, South Africa, War Crimes, UNSC