Examining the impact of immunity of heads of state on human security: the case of Darfur

Abstract

The Rome statute establishing the International Criminal Court (ICC) has clear provisions with respect to immunities, some of which go further than any other international court in making clear that traditional immunities do not apply to those officials suspected of committing acts prohibited by the statute. These provisions are somewhat complicated by others that appear to recognize, and even defer to, those same immunities. This state of affairs undermines the role of the International Criminal Court (ICC) to safeguard human security. This study employs qualitative research methods by examining literature on the subject with a view to explore alternatives by which perpetrators of international crimes can be held accountable. The understanding is that effective prosecution would act as an effective deterrence to both offenders and would be offenders, thereby safeguarding human security. The study endeavours to demonstrate that ‘Article 5’ Crimes under the Rome statute have attained the status of jus such that they command obligations erga omnes. This being the case, the paper suggests that notwithstanding the contraction under the Rome statute, ‘Article 5’ crimes can be prosecuted as a matter of customary international law. The study goes further to propose harmonisation of Article 27 and Article 98 of the Rome statute in order to effectively pierce the veil of Immunity. It is also suggested that states should cooperate with the ICC, integrate International Humanitarian Law (IHL) in their respective military doctrines to ensure that Government forces respect rule of law and safeguard human security.