The Travails of Prosecuting Serving Heads of State before the ICC: The Case of Omar Al Bashir and Vladimir Putin

Abstract

Even though the International Criminal Court (ICC) is more than two decades after the Rome Statute was ratified by state parties, prosecuting serving heads of state before its jurisdiction has been a nightmare, albeit the Court does not recognise immunities before its jurisdiction. Accordingly, waiving the personal immunity of serving heads of state has been one of the greatest contentions before the Court as seen in the Al Bashir case. While cooperation in matters of arrest and surrender to the Court remains another major concern, the fact that the treaty creating the Rome Statute is primarily binding only on state parties is another obstacle, since consent is required from non-state parties before any prosecution. This article argues that prosecuting President Putin will result in a debacle just like his counterpart Al Bashir given that the issue of immunities and cooperation is still a major concern. Unfortunately, until all states become parties to the Rome Statute, this issue of state cooperation with the Court is still far from over. Consequently, all states are urged to become party to the Rome Statute to minimise the travails of prosecuting serving heads- of-state. Keywords: Rome Statute, immunities, cooperation in matters of arrest and surrender, serving heads of state, Vladimir Putin, Omar Al Bashir.