Immunities of state officials and the “fundamentally different nature” of international courts: the appeals chamber decision in the Jordan referral re Al Bashir

On 6 May 2019, the Appeals Chamber of the ICC found that Al Bashir, then president of Sudan, could not benefit from head of State immunity because such rule had never emerged in customary law in relation to international courts, which are of a “fundamentally different nature” as opposed to domestic courts. This article investigates the merits of this argument of nontransferability of the rule of immunity before foreign criminal jurisdictions to the international plan, contrasting it with the more classical discussion on the existence of a customary exception before these fora. To this end, it analyzes the precedents of the international criminal tribunals, the Arrest Warrant case, and the rationale behind immunities of State officials and inquires: first, whether there is enough evidence for the recognition of an exception to immunity and, second, whether there is support for the claim that international courts have a fundamentally different nature. It argues that a distinction must be made between those international courts that exercise jurisdiction on behalf of the international community and those that merely constitute a pooling of national jurisdictions, and that only in relation to the former immunities are not applicable. The article concludes by discussing where the ICC falls in this distinction and the implications for the immunity rule before this court.

Publication year:2021

Accessibility:Open