Head of State Immunity in the African Context

Summary

INTRODUCTION

The position of state immunities since the Pinochet case is one of the most confusing issues of customary international law. In recent times, two developments have thrown the law on state immunities into confusion and now threaten to turn the law on its head. These are the developments in international law on universal jurisdiction for crimes of international concern and the proliferation of regional and international judicial bodies with extensive jurisdiction over individuals.

It is well known now that the African Union (AU) has been on a collision course with the European Union (EU) over the use of universal jurisdiction by EU member states to bring to justice in their domestic courts African state officials accused of atrocity crimes in their home states. It is also well known now that since the International Criminal Court (ICC) issued a warrant for the arrest of Sudan's President, Omar al-Bashir, in 2009, the AU has raised concerns with the ICC over the perceived targeting of African state officials for prosecution. The AU has cited the immunity of an incumbent head of state as a possible bar to the prosecution of President al-Bashir by the ICC.

Mixing up perceived abuse of the principle of universal jurisdiction by European states to harass African leaders with the perceived targeting of African leaders by the ICC, the AU issued several resolutions, first asking the EU states to reconsider their employment of universal jurisdiction and the United Nations (UN) Security Council to exercise its powers under Article 16 of the Rome Statute to defer the prosecution of President al-Bashir (Jalloh 2010). The EU pointed out that the exercise of universal jurisdiction was a matter for its individual Member States and not for the regional body. The UN Security Council, on the other hand, seems to have waved away the AU's request for a deferral of the case against President al-Bashir in a manner that the AU regarded as rather contemptuous.

The UN Security Council seems to have taken the same view with respect to the request for the deferral of the case against Kenyan President Uhuru Kenyatta and his deputy, William Samoei Ruto.