Immunity or Impunity: The Unexecuted Arrest Warrant in the Al-Bashir Case
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Authors
Jiang, Zihuan
Issue Date
2025
Volume
16
Issue
1
Type
Journal Article
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Keywords
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Abstract
This paper investigates the enduring tension between legal certainty and political uncertainty in the enforcement of International Criminal Court (ICC) arrest warrants, based on the case study of the Al-Bashir case. As the first ICC case involving a sitting Head of State, the case of former Sudanese President Omar Al-Bashir presents the legal and political challenges surrounding the doctrine of Head-of-State immunity. The study begins by tracing the procedural history of the Al-Bashir case and reviewing the decisions in Jordan’s non-cooperation situation, which affirmed that Article 27 of the Rome Statute reflects customary international law and precludes immunities for sitting Heads of State before international tribunals. Through a comprehensive analysis of international jurisprudence, ILC Draft Articles, and critical scholarly debates, the paper discusses three interrelated sub-issues: the applicability of personal and functional immunity before international tribunals, the customary or treaty-based nature of immunity exceptions, and the enforceability of arrest warrants against officials of non-State Parties. It then proposes a two-step analytical framework: only if a Head of State is found to enjoy either personal or functional immunity does it become necessary to assess whether any exception applies. While the jurisprudence of the ICC has become increasingly clear—Heads of State do not enjoy immunity before the ICC—the actual enforcement of arrest warrants remains hindered by political considerations. Drawing on recent events such as Mongolia’s non-cooperation situation and the arrest of former Philippine President Rodrigo Duterte, the paper concludes that the real barrier to individual accountability of Heads of State is not legal ambiguity but inconsistent political will. The Al-Bashir case exemplifies the shifting balance between legal obligations and political realities in the pursuit of ending impunity and achieving international justice.
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Publisher
Creighton University School of Law
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