The Theory of Implicit Waiver of Personal Immunity: Commentary on the Decision on the Obligation for South Africa to Arrest and Surrender President Omar al-Bashir of Sudan to the International Criminal Court

Abstract

This commentary examines the meaning of the International Criminal Court’s (ICC) Decision of 13 June 2015 on the particular point of the theory of implicit waiver by the Security Council of personal immunity of a sitting head of state not party to the Court’s Statute. It is argued that this theory is inherently illegal and yet another error in the ICC’s judicial findings in Omar al-Bashir case. To demonstrate this assertion, the study suggests that the theory of implicit waiver of personal immunity is defective in the present case on two principal points. First, it contradicts with previous ICC’s judicial findings on the same matter; secondly, it creates a serious misunderstanding on the intent and the power of the Security Council when it decided to refer the situation in Darfur to the Court.