The Elephant in the ICC’s Case Against Bashir: Head of State Immunity

by Julian Ku

Dapo Akande, who seems to know more about head of state immunity than anyone else, has an interesting post on the recent ICC Appeals Chamber non-decision decision in the case against Sudan’s President Bashir.  He points out that the Appeals Chamber failed to even mention the question of head of state immunity, which is important in this case because as a non-party to the ICC, Sudan has a pretty good argument that Bashir still has head of state immunity. It is at least a non-trivial argument which would undermine every other issue in the case against Bashir, if resolved in Bashir’s favor.  How could it not be addressed?  And when will it ever be addressed? I suppose if Sudan or Bashir ever show up to defend themselves.  It would be embarrassing if, after all of this, the ICC managed to arrest Bashir only to have its Appeals Chamber decide that he had immunity after all.

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