Al Bashir : ¿excepción a la inmunidad del jefe de Estado de Sudán y cooperación con la Corte Penal Internacional?

Abstract

The article examines the legal problems faced by the International Criminal Court in order to make effective the arrest warrants adopted against the Sudanese Head of State Omaar Al Bashir, who allegedly committed war crimes, crimes against humanity and genocide. The aim is to analyse the difficulties in the application of the three normative dimensions directly affecting the case: the irrelevance of the official capacity, the waiver of immunity as regards international crimes, and the duty of States to cooperate with the Court. The study analyses to what extent the irrelevance of the official capacity can achieve its full effects in the light of the Rome Statute and as regards to a Head of State of Sudan, which is not party to the treaty. In Al Bashir’s case, the non-compliance of States with their duty to cooperate has led the Court to raise doubtful solutions, some of them related to international customary law and others strictly based on the Resolution of the Security Council referral of the situation to the Court. As a conclusion, the article challenges the authority demonstrated by the Court in this field, due to the spread of interpretative criteria used in its legal argumentation.