@article{2018:chenwi:lessons_fr,
title = {Lessons from the Al-Bashir Debacle: Four Issues for ICJ Clarification},
year = {2018},
note = {At its thirtieth ordinary session, the AU decided that the United
Nations General Assembly (UNGA) be asked to seek an advisory opinion
from the International Court of Justice (ICJ) on the question of
immunity of head of states and other senior officials, in relation to
articles 27 and 98 of the Rome Statute of the International Criminal
Court 1998 (Rome Statute) and states parties’ obligations under
international law. The issue of immunity in the context of state
cooperation obligations under the International Criminal Court (ICC)
legal regime lies at the heart of the Al-Bashir case, and is a
contentious issue that has contributed to the deteriorating
relationship between the ICC and the AU. Against the backdrop of the
Al-Bashir case and the key issues arising in the case warranting
clarification that we identify in this article − the meaning of
article 98(1) in the context of head of state immunity, solving
potential conflicting treaty obligations to (not) cooperate, waiver of
head of state immunity by the UNSC, and hierarchy of sources of
international law on the relevant issues − we contend that seeking
clarification from the ICJ is indeed a more advantageous and
appropriate way forward for African states to pursue than the proposed
collective withdrawal from the ICC. To this effect, we also argue for
the unsuitability of collective withdrawal as a solution to the
AU/African states’ concerns around ICC prosecution.},
journal = {VRÜ Verfassung und Recht in Übersee},
pages = {240--268},
author = {Chenwi, Lilian and Sucker, Franziska},
volume = {51},
number = {2}
}