In another blog, Mogogo Albanese and I set out why President Bashir could continue travelling without legal fear for arrest: he continued to enjoy immunity ratione personae under international law. Of course, we recognised that the Statute’s article 27(2) provides that
2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.
However, article 27 appears under the part of the Statute setting out ‘general principles of criminal law’ and applies only in the relationship between the Court and the suspect. In the relationship between the Court and states, article 98(1) applies. This article provides:
The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.
Sudan is a ‘third state’ in the sense that it is a state other than the requested state (eg Kenya, Djibouti, Chad or Malawi). Moreover, even if it is argued that states have implicitly waived the immunity of their officials by ratifying the Statute (one can equally argue that article 98(1) saves those immunities), the argument does not apply to Sudan: Sudan is not a party to the Rome Statute. The fact that the Security Council, in a resolution adopted under Chapter VII under the UN Charter, has referred the situation in Darfur to the ICC does not make Sudan a state party. All it does is make the Rome Statute applicable to Sudan, including article 98. Resolution 1593 (2005) does not say anything about lifting the immunity of the head of the Sudanese state (indeed, some states would probably have vetoed any resolution to this effect). President Bashir has therefore continued to enjoy immunity ratione personae as accorded by international customary law.
There is no need to review this analysis. Worthy of nuance, however, is our argument that by issuing the arrest warrant, the Court violated article 98. We interpreted ‘the Court may not proceed with a request for surrender or assistance’ to mean that the Court was prohibited from issuing the arrest warrant in the first place. Perhaps a better reading is that the Court could issue the arrest warrant, but that if a state declines to arrest and surrender President Bashir because it is bound to respect his head-of-state immunity, ‘the Court may not proceed with [the] request for surrender’, i.e. may not insist upon the matter. Support for this reading is provided by, among others, the French text of article 98 (‘La Cour ne peut poursuivre l’exécution d’une demande de remise ou d’assistance’) and by the context of article 98—the preceding article provides for consultations between the Court and a state party, if the latter `receives a request under this Part in relation to which it identifies problems which may impede or prevent the execution of the request’. In such a case, ‘that State shall consult with the Court without delay in order to resolve the matter’.
Although always foregrounding a purported obligation to arrest, the Court has hitherto requested Kenya, Chad, the Central African Republic and Malawi for explanations as to why they have not arrested, or did not intend to arrest, President Bashir while present on their territory (I have not found any such request to Djibouti). None of these states has responded that immunity is the reason. Perhaps they fear being worse off if a jurisdiction-hungry ICC, which has never set out its views on the relationship between articles 27(2) and 98(1), would totally reinterpret the international customary law on immunity ratione personae.
With less of a functional bias in favour of international criminal law and against the international law on immunities, the International Court of Justice may be a better forum to decide on the relationship between treaty-based international prosecutions and the immunities of representatives of third states than many international criminal tribunals (as is apparent if one contrasts the Special Court for Sierra Leone’s decision on the immunity of President Taylor with the ICJ’s Arrest Warrant case). States refusing to execute an ICC arrest warrant on grounds of article 98(1) could therefore try to convince the General Assembly to request the ICJ to give an advisory opinion on the relationship between articles 27(2) and 98(1) of the Rome Statute. Alternatively, Sudan could bring a case against any state that threatens to execute the ICC arrest warrant against its President, if it finds a jurisdictional ground. Its High Court having recently issued a provisional arrest warrant in the event that President Bashir sets foot on the territory (The Kenya Section of the International Commission of Jurists v. Attorney General and others, High Court of Kenya, 28 November 2011), Kenya makes a ready candidate.
However, before any judicial institution is engaged, the African Union may wish to state in explicit terms its reading of article 98(1). In doing so, it could confirm that the African Union has strong legal grounds for its objections against some of the ICC’s actions.
 Article 27(1) is less relevant here, as it concerns immunity ratione materiae (‘1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.’)