Reasonableness of ICC Judgment of the Bashir Case from the International Status, Clause Conflicts and Scope of Application

Abstract

This article addresses the International Criminal Court ruling in the Bashir case from the perspectives of the International Criminal Court’s position following the United Nations Security Council’s referral of the case, and the conflict between Articles 27 and 98, which in the Rome Statute, and the rationale of Article 27’s scope of applicability. The immunity ratione personae can be divided in to two parts: Rome Statute and customary international law, which are the principal sources. Sudan is not the contracting party of the Rome Statute, and the Rome Statute only applies to signatories. This essay first contends that the position of the International Criminal Court in the Bashir case has not altered toward a vertical connection after the United Nations Security Council transferred the case. Second, the field of applicability of Article 98 should be broadened, and Article 27’s effective time should not be restricted to the appeals phase. Third, the International Criminal Court cannot demonstrate that there is an existing case in which the immunity of in-service leaders of state has been revoked in international customary law. In the end, this article contends that the International Criminal Court’s ruling of the Bashir case is irrational and insufficiently supported by the facts. Sudan is a third country to the Rome Statute, had its rights violated by the International Criminal Court’s explanation of Article 27.