Research On The Head Of State Immunity In The Bashir Case

On 31 March 2005,the United Nations Security Council adopted resolution 1593,referring the situation in Darfur,Sudan,to the International Criminal Court,in accordance with article 13(b)of the Rome Statute.On 4 March 2009,Pre-Trial Chamber I of the International Criminal Court issued the first arrest warrant for then-President Al-Bashir of the Sudan on charges of war crimes and crimes against humanity;Both arrest warrants are known to States parties to the Rome Statute.Since then,Bashir has visited a number of States parties to the Rome Statute,but they have not handed over him to the International Criminal Court in accordance with article 89 of the Rome Statute.Jordan hosted the 28 th Summit of the League of Arab States of Oman in March 2017,and Bashir went to Jordan on March 29,2017,where Jordan did not hand him over to the International Criminal Court.Jordan's argument was that Bashir enjoyed immunity as head of state while participating in the Meeting,that Jordan could not arrest him,and that Jordan considered articles 98(a)and(b)of the Rome Statute to contradict article 27.As a result,two arrest warrants against Mr.Bashir have not yet been issued.In international law,the head of state does have the immunity of the head of state based on the sovereign independence of the state,that is,the head of a state is not subject to equal national jurisdiction.However,in the Bashir case,it was not other equal sovereign states that proposed jurisdiction to former state leader of Sudan,but the international criminal court that the UN Security Council submitted to deal with the situation in Darfur.In fact,the UN Security Council's action is to cooperate with the ICC in dealing with the problems in the region,which makes Sudan,as a member of the UN,have the obligation to abide by the UN Charter and be bound by the UN Security Council.Therefore,when the Security Council submits the situation in Darfur to the ICC,the ICC has jurisdiction over Bashir.In addition,the head of state should bear criminal responsibility for his own crimes based on the principle of individual criminal responsibility,no matter when he is in power or when he leaves office.In the Bashir case,Jordan and other States parties to the Rome Statute refused to arrest or transfer Bashir on the grounds of immunity of the head of state.As a state party,on the basis ofnot affecting its obligations under international law,it must abide by relevant provisions in accordance with the treaty.Finally,in 2020,Sudan agreed to transfer Bashir to the International Criminal Court,which also made the United Nations Security Council and the International Criminal Court have made a great progress in solving the problem in the region.According to the relevant provisions of the Rome Statute,Sudan gave up Bashir's immunity and made the arrest of the International Criminal Court more smoothly.