SOAS Research Online

Abstract

The paper examines the legal nature of the dispute between the International Criminal Court (ICC) and the African Union (AU), and observes that the core issue revolves around the arrest warrant issued by the Court for Al-Bashir. Therefore, it locates this to be within a legal rather than political impasse. The paper argues that the general rules of the law of international organisations may provide the key to resolving the impasse. And that accordingly, the general principles of the regime of international law point to the interpretation of the provisions of the constitutions of the two international organisations to identify the extent to which they were empowered to make the decisions that resulted in the dispute. The provisions of the Rome Statute on immunity are identified as providing the key to the resolution. Therefore the interpretation of the Statute on the immunity of certain state officials is important. The paper argues that accordingly the ICC should change its approach to the arrest of certain officials in order to prevent facilitating the violation of the customary principles of diplomatic immunity in international law – which should have also been codified in treaties. Such an interpretation of the Rome Statute would indicate that states should exercise caution in arresting a sitting Head of State such as Sudanese President Al-Bashir until such a time that he leaves office or that Sudan waives his immunity.