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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:The Jus cogens nature of Head of State immunity ratione personae: the case of President Al Bashir of Sudan
Author:Simbeye, YitihaISNI
Periodical:Journal of African and international law (ISSN 1821-620X)
Geographic term:Sudan
Subjects:heads of State
diplomatic law
International Criminal Court
war crimes
About person:Umar Hassan Ahmad al Bashir (1944-)
Abstract:Head of State immunity is a point of discussion since the International Criminal Court (ICC) issued an arrest warrant for President Al-Bashir of Sudan in 2009. Countries have been called to arrest him when and if he enters their territories. International and regional human rights organizations have lobbied for his arrest; he has been accused of of genocide, crimes against humanity and war crimes in Darfur. However, the law as it currently stands precludes an individual State from arresting an incumbent head of State that it recognises. The paper analyses the norm of jus cogens in relation to immunity ratione personae (the jurisdiction of a court is decided by reason of the defendant or ratione personae. In international law, ratione personae expresses the rule of law that only a state that is a party to an international treaty can take part in international dispute resolution process). Immunity ratione personae will be analysed through international customary law and the doctrine of recognition. Section 2 reviews the concept of jus cogens, international law norms that are jus cogens and develops the idea of the jus cogens norm of immunity ratione personae before suggesting ways in which the ICC can seek the arrest of the Sudanese president without urging States to breach a peremptory norm of international law. In the conclusion suggestions as to how the ICC can effect its arrest warrant is put forward. Notes, ref. [ASC Leiden abstract]