GoJIL Vol. 4, No. 1 (2012)
The Continuing Functions of Article 98 of the Rome Statute
According to the current jurisprudence of the International Criminal Court, Article 98 of the Rome Statute does not forbid the issuance of an arrest warrant for a sitting head of State. The African Union Commission vehemently objects to this reading of Article 98. Because it viewed the function of Article 98 as forbidding such arrest warrants, it views the current jurisprudence as effectively reading Article 98 out of the Statute, with no continuing function. This article demonstrates the continuing function of Article 98. This continuing function includes immunities resulting from agreements under Article 98(2), as well as customary immunities pertaining to property, persons, diplomatic immunity, and state immunity. Countering the rhetoric and providing a close analysis of the current state of Article 98 in ICC jurisprudence is useful, both with respect to understanding the current operation of Article 98 and to reflect on balancing multiple maximands of criminal law, human rights law, and the international law of immunity.
Download the full text as a PDF