Title: Al-Bashir & the ICC: The Problem of Head of State Immunity
Abstract: This article considers the law of head of State immunity through an analysis of the indictment of Sudanese President Omar al-Bashir by the International Criminal Court (ICC). Contrary to most commentaries, this essay argues that al-Bashir remains protected by head of State immunity, and that ICC jurisdiction over him can only be maintained through one of two controversial claims: either that the Security Council can override customary international law rules of treaties and immunities, or that the law of immunities already provides an exception that invalidates al-Bashir's protection. This article provides a detailed explanation of why both propositions are unsustainable and require considerable revision of public international law. While the desire to prosecute al-Bashir is understandable, the ICC's legal arguments actually threaten the Court's ability to protect victims by alienating some States Parties and prompting those States and others to reduce co-operation with the Court. It concludes by suggesting that the Court's arguments represent a problematic assertion of its position as an institution of global governance.