Referrals to the International Criminal Court under Chapter VII of the United Nations Charter and the immunity of foreign state officials

This contribution explores the implications of United Nations Security Council (UNSC) referrals under Chapter VII of the Charter of the United Nations to the International Criminal Court (ICC) for the immunity ratione personae of officials of states that are not party to the ICC Statute. While Article 13(b) of the ICC Statute allows the ICC to receive referrals of situations by the UNSC, disagreement remains among authors as to when such a referral removes the customary immunity attached to a head of state of a nonstate party to the ICC Statute. In particular, it remains disputed whether the broad obligation placed on Sudan by UNSC Resolution 1593 (2005) had the implicit effect of doing so. In referring the situation in Darfur (Sudan) to the ICC under Chapter VII of the UN Charter, the UNSC determined that “the government of Sudan, and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the prosecutor pursuant to this resolution.”* SARChI Professor of International Constitutional Law, University of Pretoria (South Africa), and Honorary Professor, University of Bonn (Germany). This work is based on the research supported by the South African Research Chairs Initiative of the Department of Science and Technology and National Research Foundation of South Africa (Grant No. 98338).https://www.cambridge.org/core/journals/american-journal-of-international-lawam2019Public La