1.In accordance with the para no 13.

In 1998, Adawa became an original party to the

Rome Statute establishing the International Criminal Court, and remains a party to that
treaty. Rasasa is not a party to the Rome Statute.
Article 12(3) of the Rome Statute of the International Criminal Court (ICC), which allows
a state that is not a party to the Statute to “accept the exercise of jurisdiction by the
Court” by way of a declaration lodged with the registrar, is one of the Statute’s most
inconspicuous provisions. It has attracted only brief notice either in the general
literature on the jurisdiction of the ICCi.

2.Explained in the para 15 of agreed facts In February 2009, the remote island Republic
of Garantia (not a party to this case or otherwise involved in this dispute) formally
referred a situation to the Prosecutor of the International Criminal Court concerning war
crimes and crimes against humanity that were alleged to have occurred during the
2007-2009 civil war.

A State Party may refer to the Prosecutor a situation in which one or more crimes within
the jurisdiction of the Court appear to have been committed requesting the Prosecutor
to investigate the situation for the purpose of determining whether one or more specific
persons should be charged with the commission of such crimesii. It was also mentioned
that the accused “Ms. Grey” has been cited personally responsible with war crimesiii i.e
(sold weapons systems and provided training to government militias, and such systems
and training materially aided the [regime then in power] in its unlawful conduct) during
this civil war.

3.The office of the prosecutor opened up a investigation in August 2009.

The Prosecutor may initiate investigations proprio motu on the basis of information on
crimes within the jurisdiction of the Courtiv.

4.The prosecutor of international criminal court persued a arrest warrant for the alleged
Ms.Grey and on 20 June 2019, a Pre-Trial Chamber of the ICC granted the Prosecutor’s
13 April 2019 request and issued a warrant of arrest for Minister Grey. v

Judgment of the Appeals Chamber in The Prosecutor v Al-Bashir decision of the Pre-Trial
Chamber referring that state to the UN Security Council for failing to arrest then
President of Sudan, Omar Al Bashir when he attended an Arab League Summit in March
2017 the President of the Court, Judge Chile Eboe-Osuji, the Appeals Chamber appears
 to have held that under customary international law, heads of state have no immunity
from criminal prosecution international criminal courtsvi

3.It is clear that an individual’s official status as, say, the head of state or
government of a State Party to the Rome Statute does not provide immunity from
prosecution for the most serious international crimes before the International
Criminal Court (ICC). Indeed, Article 27 of the Statute specifically provides for
the irrelevance of official capacity with respect to criminal responsibility for acts
within the Court’s jurisdiction. However, whether that provision applies to the
most senior officials of States that are not a party to the Statute, or to their lower
level officials, is a different question, one that has proven controversial and has
important implications for a potential ICC investigation of war crimes committed
in Afghanistan.

Article 27 (“Irrelevance of official capacity”) of the Rome Statute provides:

1. This Statute shall apply equally to all persons without any distinction based on official
capacity. In particular, official capacity as a Head of State or Government, a member of a
Government or parliament, an elected representative or a government official shall in no
case exempt a person from criminal responsibility under this Statute, nor shall it, in and
of itself, constitute a ground for reduction of sentence.

2. Immunities or special procedural rules which may attach to the official capacity of a
person, whether under national or international law, shall not bar the Court from
exercising its jurisdiction over such a person. As provisionally adopted, Article 7(1)
Europeon Convention of state immunities states that “[i]mmunity ratione materiae from
the exercise of foreign criminal jurisdiction shall not apply in respect of the following
crimes under international law: (a) crime of genocide; (b) crimes against humanity; (c)
war crimes; (d) crime of apartheid; (e) torture; (f) enforced disappearance.”

Furthermore, reliance by States Parties to the Rome Statute on immunities or special procedural
rules to deny cooperation with the Court would create – at least as concerns requests for the
arrest and surrender of individuals subject to a warrant of arrest – an insurmountable obstacle to
the Court’s ability to exercise its jurisdiction. Such a situation would clearly be incompatible
with the object and purpose of article 27(2) of the Statute. Indeed, the Court’s jurisdiction with
respect to persons enjoying official capacity – the exercise of which fully depends on States
Parties’ execution of the Court’s warrants of arrest and assistance in the conduct of investigations
– would be reduced to a purely theoretical concept if States Parties could refuse cooperation with
the Court by invoking immunities based on official capacity Decision under article 87(7) of the
Rome Statute on the non-compliance by South Africa with the request by the Court for the arrest
and surrender of Omar Al-Bashirvii

Chamber does not subscribe to this view and finds that article 27(2) of the Statute also excludes
the immunity of Heads of State from arrest. First, the Chamber 97 See above, para. 38. ICC-
02/05-01/09-302 06-07-2017 27/53 RH PT No. ICC-02/05-01/09 28/53 6 July 2017 considers
that since immunity from arrest would bar the Court from the exercise of its jurisdiction, the
general exclusionary clause of article 27(2) of the Statute, in its plain meaning, also encompasses
that immunity. Had the drafters of the Statute intended exclusion only of a narrow category of
immunities, they would have expressed it in plain language. The language used in that provision,
however, conveys comprehensiveness and is not compatible with the proposition that the
immunity from arrest of Heads of State is excluded from it.

The reference to immunity under ‘national law’ will be completely meaningless since
international tribunals do not apply national law

A/CONF.183/C.1/WGGP/L.4 United Nations Diplomatic Conference of Plenipotentiaries on the

Establishment of an International Criminal Court Rome, Italy 15 June-17 July 1998 Article 24
Irrelevance of official position ... 2. Any immunities or special procedural rules attached to the
official capacity of a person, whether under national or international law, may not be relied upon
to prevent the Court from exercising its jurisdiction in relation to that person.

A/AC.249/1997/L.5 12 March 1997 General Assembly Article B e. Irrelevance of official

position 1. This Statute shall be applied to all persons without any discrimination whatsoever:
official capacity, either as Head of State or Government, or as a member of a Government or
parliament, or as an elected representative, or as a government official, shall in no case exempt a
person from his criminal responsibility under this Statute, nor shall it [per se] constitute a ground
for reduction of the sentence. 2. Any immunities or special procedural rules attached to the
official capacity of a person, whether under national or international law, may not be relied upon
to prevent the Court from exercising its jurisdiction in relation to that person.
This text seems to indicate that not only are states parties precluded from relying on
immunities before the ICC itself, but also on any other immunities, before domestic or
international courts, that would otherwise prevent or bar the Court from exercising its own
jurisdiction. In other words, the immunity exception did not just cover immunities from the
ICC’s own jurisdiction, but also any other immunities or procedural rules that would somehow
prevent the Court from exercising this jurisdiction

A/CONF.183/DC/R.35 27 June 1998 TEXTS ADOPTED ON SECOND READING (26 June

1998) Article 24 Irrelevance of official capacity 1. This Statute shall apply equally to all persons
without any distinction based on official capacity. In particular, official capacity as a Head of
State or Government, a member of a Government or parliament, an elected representative or a
government official shall in no case exempt a person from criminal responsibility under this
Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. 2. Immunities
or special procedural rules which may attach to the official capacity of a person, whether under
national or international law, shall not bar the Court from exercising its jurisdiction over such a
person. I/

These materials to be found in the drafting history provide a picture indicating that the drafters of
Art. 27(2) always considered that this provision would have some effect at the national level, at
least in the contexts of cooperation by states. When this reference to the drafting history is
combined with methods of treaty interpretation, they provide strong support for the view that for
those states that are bound by Article 27(2), the provision does not merely operate at the ‘vertical
level’ (removing immunity before the ICC), but also at the ‘horizontal level’ (removing, before
national authorities of states parties, the immunity of those states bound by the Statute).

On 23 June 2019, the Permanent Representative of Rasasa to the United Nations delivered a
communication to the Secretary General, noting that “Rasasa objects to the purported succession
of Adawa to the Treaty of Botega and, accordingly, does not consider itself in treaty relations
with Adawa pursuant to the aforementioned treaty.

Customary Law Excludes Immunities as Defence or Bar to Jurisdiction

4.1 General Considerations
It is apparent from the above review that since at least the end of the Second World War, the
possibility of raising immunities as a defence or jurisdictional bar to charges involving
allegations of war crimes, crimes against humanity or genocide has systematically been
excludedviii.
There is further jurisprudential support for the view that such an exception to immunities now
forms part of customary international law. In Eichmann, for instance, the Supreme Court of
Israel took the view that the Nuremberg Principles, which contain an exclusion of immunities as
defence and bar to jurisdiction, ‘have become part of the law of nations and must be regarded as
having been rooted in it also in the past’ix. In Karadžić, the International Criminal Tribunal for
the former Yugoslavia (‘ICTY’) noted that ‘the official capacity of an individual even de facto in a
position of authority – whether as military commander, leader, or as one in government – does
not exempt him from criminal responsibility and would tend to aggravate it’x. In Furundžija, the
same Tribunal determined that Article 7(2) of its Statute (and Article 6(2) of the ICTRStatute),
which provide for the exclusion of immunities as defence and bar to jurisdiction, ‘are
indisputably declaratory of customary international law’xi. In Milošević, it was again noted that
‘[t]here is absolutely no basis for challenging the validity of Article 7, paragraph 2, [ICTYStatute]
which at this time reflects a rule of customary international law’xii. As will be discussed below,
Article 27 of the ICC Statute now recognizes and gives effect to this customary law exclusion of
immunities as a defence and bar to jurisdiction for the purpose of proceedings before the ICCxiii.
However, it is noted that the scope and effect of the above customary law exclusion does not
import a general abrogation of immunities when international crimes are at stake. It only
deprives an individual charged with an international crime of the possibility of putting forth
immunities he might otherwise enjoy as a defence in his trial or as an exception to the
jurisdiction of a court over his conduct. It cannot therefore be said from the above that there is a
general, all-encompassing, international crimes exception to State immunities under customary
international law.

i
1 See Hans Peter Kaul, Preconditions to the Exercise of Jurisdiction, in 1 THE ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT: A COMMENTARY 583, 610 (Antonio Cassese, Paola Gaeta, & John R. W. D.
Jones eds., 2002) [hereinafter CASSESE COMMENTARY]; Sharon A. Williams, Preconditions to the Exercise of
Jurisdiction, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT:OBSERVERS’
NOTES,ARTICLE BY ARTICLE 329 (Otto Triffterer ed.,1999) [hereinafter TRIFFTERER COMMENTARY]; Elizabeth
Wilmshurst, Jurisdiction of the Court, in THE INTERNATIONAL CRIMINAL COURT:THE MAKING OF THE ROME
STATUTE,ISSUES.NEGOTIATIONS.RESULTS 127(Roy S. Lee ed., 1999) [hereinafter LEE COMMENTARY]; Mitsue
Inazumi, The Meaning of the State Consent Precondition in Article 12 (2) of the Rome Statute of the International
Criminal Court: A Theoretical Analysis of the Source of International Criminal Jurisdiction, 49 NETHERLANDS INT’L L.
REV. 159 (2002); Carsten Stahn, Gute Nachbarschaft um jeden Preis? Einige Anmerkungen zur Anbindung der USA
an das Statut des Internationalen Strafgerichtshofs, 60 ZEITSCHRIFT FÜR AUSLÄNDISCHES ÖFFENTLICHES RECHT
UND VÖLKERRECHT 631(2000).
ii
Art 13 Referal of a situation by a state party Rome Statute.
iii
Art 8 warcrimes Rome Statute.
iv
Art 15 of Rome statute.
v
Art 58 Issuance by Pre-trial Chamber of a warrant of arrest or a summons to appear Rome Statute.
vi
https://www.icc-cpi.int/itemsDocuments/Jordan-Summary-Al-Bashir-Judgment.pdf

vii
No.: ICC-02/05-01/09 IN THE CASE OF THE PROSECUTOR v. OMAR HASSAN AHMAD AL-BASHIR
See generally A. Cassese, International Criminal Law (OUP, Oxford, 2008), p. 306
viii

(‘Cassese ICL’); Prosecutor v. Anto Furundžija, IT-95–17/1-T, ICTY, Judgment, 10 December

1998, para. 140 (‘Furundžija Trial Judgment’). See also International Law Commission, Fifth
report on immunity of State officials from foreign criminal jurisdiction, by Concepción -
Escobar Hernández, Special Rapporteur (A/CN.4/701), para. 221. It would seem reasonable to
suggest that the crime of torture would also come within the list (as a self-standing international
crime or as an underlying war crime or crime against humanity). See ibid., para. 224. It is more
questionable whether this principle would apply to other categories of international crimes (e.g.,
piracy) or would-be international crimes (e.g., international terrorism; aggression). Ibid., paras.
222–224
ix
Eichmann Supreme Court Judgment, supra note 41, p. 311. See also Eichmann District Court
Judgment, supra note 41, on the rejection of the ‘Act of State’ doctrine.
x
In the Matter of a Proposal for a Formal Request for Deferral to the Competence of the
Tribunal Addressed to the Republic of Bosnia and Herzegovina in Respect of Radovan Karadžić,
Ratko Mladić and Mićo Stanišić’, IT-95–5-D, ICTY, Decision, 16 May 1995, para. 24.

xi
Furundžija Trial Judgment, supra note 46, para. 140
xii
Prosecutor v. Slobodan Milošević, IT-02–54, ICTY, Decision on Preliminary Motions, 8
November 2001, para. 28, 26–34 (‘MiloševićDecision on Preliminary Motions’). See also
Prosecutor v. Charles Taylor, SCSL-2003-01-I, SCSL, Decision on Immunity from Jurisdiction,
31 May 2004, para. 47 (‘Taylor Decision on Immunity’), where the Appeals Chamber of the
Special Court for Sierra Leone determined that since Nuremberg, the principle that sovereign
immunities are not available as a defence to international crimes ‘became firmly established’
(and, ibid., paras. 52–53); Prosecutor v. Tihomir Blaškić, IT-05–14, ICTY, Judgement on the
Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July
1997, 29 October 1997, para. 41 (‘Blaškić Appeals Chamber Subpoena Decision’).
xiii
See Prosecutor v. Omar Hassan Ahmad Al Bashir, 13 December 2011, ICC, Pre-Trial Chamber
I, Corrigendum to Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the
Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect
to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, ICC-02/05–01/09, www.icc-
cpi.int/CourtRecords/CR2011_21750.PDF, accessed 25 April 2018, para. 43 (‘ICC Malawi
Decision’): ‘[T]he Chamber finds that customary international law creates an exception to Head
of State immunity when international courts seek a Head of State’s arrest for the commission of
international crimes’.