The Fateful Confrontation between Immunity and Universal Jurisdiction before the ICC

How would the International Criminal Court prosecute an official of a state not party to the Rome Statute?

A Graduation Thesis by Takenori Yamazaki

The then Sudanese President Omar Al Bashir’s case before the ICC has turned out to be a historically controversial in respect of the relationship between the rule on irrelevance of official capacity under Article 27(2) of the Rome Statute and the traditional law on State or diplomatic immunities from other States’ jurisdictions. That case was proceeded with pursuant to Article 13(b) of the Rome Statute. This article, in contrast, hypothesises a case in the ICC’s exercising jurisdiction over a high official of State not party to the Rome Statute pursuant to its Article 13(a) or 13(c). Careful reading of the related materials assists with the conclusion that there must be an official waiver of immunity by the State of nationality. Further, the analysis of relevant other procedures symbolises the faithful confrontation between the interests of universal jurisdiction and impunity and those of respecting immunities entitled to States.

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