Has the United Nations Security Council Implicitly Removed Al Bashir's Immunity?

in International Criminal Law Review
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Abstract

On 4 March 2009, the ICC issued an arrest warrant for Omar Hassan Ahmad Al Bashir, the incumbent Head of State of Sudan. This article's purpose is to suggest a legal basis for reconciling the well established rule on personal immunities under customary international law with the prosecution of Heads of State from non-parties to the ICC Statute. While arguing for the legality of Al Bashir's warrant as well as the legality of the warrant's enforcement, this article explores the basis upon which the UN Security Council can remove immunities. By giving special attention to the concept of waivers, the article suggests that the UN organ implicitly removed Al Bashir's immunity when it referred the situation of Sudan to the ICC in 2005.

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