Immunities of State Officials and the “Fundamentally Different Nature” of International Courts: the Appeals Chamber Decision in the Jordan Referral re Al-Bashir

Abstract

On 6 May 2019, the Appeals Chamber of the ICC found that Al Bashir could not benefit from head of State immunity because such rule had never emerged in customary law in relation to international courts, which are of a “fundamentally different nature” as opposed to domestic courts. This article investigates the merits of this argument for the determination of the customary rule of immunities applicable to international jurisdictions. To this end, it analyzes the precedents of the international criminal tribunals, the Arrest Warrant case and the rationale behind immunities of state officials. It argues that a distinction must be made between those international courts that exercise jurisdiction on behalf of the international community and those that constitute a mere pooling of national jurisdictions, and that only in relation to the former the immunities enjoyed before domestic courts are not transferable. The intervention of the Security Council in its creation and the subject-matter jurisdiction can be relevant factors in establishing the nature of a court. Regrettably, the Appeals Chamber has not engaged with this distinction and, as such, has failed to demonstrate that the ICC is itself an international court of a fundamentally different nature, a question that remains controversial.