Balancing the Violation of Human Rights and Humanitarian Rights with the Immunity of the Heads of States; Emphasizing the case of Omar al-Bashir in the International Criminal Court

Shiri, Morteza; Rostamzad, Hossein; Salimi, Sadegh

doi:10.22034/jccj.2023.412612.1341

Balancing the Violation of Human Rights and Humanitarian Rights with the Immunity of the Heads of States; Emphasizing the case of Omar al-Bashir in the International Criminal Court

Document Type : Original Article

Authors

Morteza Shiri ¹

Hossein Rostamzad ²

Sadegh Salimi ³

¹ PhD Student, Department of Criminal Law and Criminology, Central Tehran Branch, Islamic Azad University, Tehran, Iran.

² Assistant Professor, Department of Criminal Law and Criminology, Central Tehran Branch, Islamic Azad University, Tehran, Iran. (Corresponding Author)

³ Associate Professor, Department of Criminal Law and Criminology, Central Tehran Branch, Islamic Azad University, Tehran, Iran.

10.22034/jccj.2023.412612.1341

Abstract

The most important issue raised in the International Criminal Court regarding the immunity of heads of states was the case of Omar al-Bashir, which is important in several ways: the country concerned is not a member of the Court's statutes; and the conflict between the lack of immunity of heads of state and the rule prohibiting the possibility of invoking the personal immunity of heads of states. The objectives pursued by this research are firstly to examine the priority of human rights and humanitarian law standards over the rule of immunity of heads of states and secondly, considering that the crimes in Darfur took place in an Islamic country called Sudan, therefore, the prosecution of Omar al-Bashir in the court represents the approach of the international community to an Islamic country. The main question in this descriptive-analytical research is what legal challenges exist for the lack of immunity of the heads of state, emphasizing the Omar-Al-Bashir case in the International Criminal Courts. The result of the present research is that the rule of the possibility of invoking the personal immunity of the heads of states in the international criminal courts is accepted as an international customary rule and that only the rules of human rights and international humanitarian rights are applicable.

Keywords

Immunity

Heads of states

The International Criminal Court

Human Rights

International Humanitarian Law