Cooperation with the ICC and Personal Immunities of Heads of State or Government of Non-Parties: Revisiting Articles 27 and 98 of the Rome Statute After the Court’s Finding on Mongolia’s Non-Compliance

Abstract This article addresses the enduring controversy over the relevance in proceedings before the International Criminal Court of the personal immunities enjoyed by incumbent Heads of State or Government (HSG) under existing customary international law (CIL), in particular whether States Parties to the Rome Statute are under an obligation to comply with a request from the Court for the arrest and surrender of an incumbent HSG of a State not Party to the Statute. After providing a concise overview of the varied arguments developed by the Court in its relevant case law to reassert such obligation, and the scholarly debate on the issue, this contribution revisits the interpretation of Articles 27(2) and 98(1) of the Statute, concluding that, under Article 27(2), the States Parties have committed not to recognise any immunity of any person over whom the Court has ratione personae jurisdiction; and that Article 98(1) does not represent a general derogation from Article 27(2), but rather addresses those specific and exceptional cases in which compliance with a Court’s request for surrender or assistance would require a State Party to breach the State or diplomatic immunities of another State (whether Party to the Statute or not), as distinct from HSG immunities. As a result, the cooperation obligations under the Statute may conflict with the States Parties’ CIL obligation to respect the personal immunity of incumbent HSG. The article attempts to offer some additional reflections on this unresolved tension, without purporting to provide a definitive solution .