States Cooperation in Arresting Senior State Officials and Sitting Heads of State under International Criminal Law: Quo Vadis ICC

Abstract

Albeit the Rome Statute does not recognise the immunity of incumbent presidents before the International Criminal Court (ICC), prosecuting sitting presidents of non-parties states has become a debacle. Accordingly, despite the decisions of the Supreme Court of Appeal of South Africa and the Pre-Trial Chamber II of the ICC against non-compliance of South Africa and Jordan respectively in the arrest of Al Bashir as the serving President of Sudan, Al Bashir has never been tried even now as a former president because no state is willing to arrest and surrender him. The main defence for not cooperating with the Court is that the serving president, especially of non-states parties still enjoys immunity recognised by customary international law. Accordingly, while Article 27 of the Rome Statute is not applicable to non-state parties as argued by these states, Article 98 is applicable even though these arguments have been categorically rebutted by the Court. Consequently, since the Al Bashir case remains a prototype for state cooperation and the prosecution of serving heads of state before the ICC, this might become the fate of Vladimir Putin as serving head of state of the Russian Federation. This article used qualitative research methods and argues that without state cooperation in matters of arrest and surrender of sitting heads of state and other senior state officials to the ICC, the court’s effort to realise justice for crimes against humanity will remain largely unsuccessful under international criminal law. Keywords: State cooperation, Putin’s arrest warrant, Al Bashir case, International Criminal Court, non-state parties to the Rome Statute.