(2013) Journal of International Criminal Justice 199

The Rome Statute establishing the International Criminal Court provides that immunities do not apply in proceedings before the Court. At the same time, however, the Rome Statute provides an exception from the duty to cooperate on the basis of immunities. This apparent contradiction was the subject of a dispute between the ICC and, on the one hand Chad, and on the other hand Malawi. This articles provides a critical analysis of the Court’s decision and concludes that the Court did not properly interpret the Rome Statute.


The decision of the African Union (AU) not to cooperate with the International Criminal Court (ICC) with respect to President Al Bashir has attracted attention particularly as far as the political aspects of the decision are concerned. While the AU decision is overtly political, it raises an important legal question, namely the relationship between Articles 98 and 27 of the ICC Statute, in particular in situations referred to the Court by the Security Council. On 12 and 13 December 2011, the Court had the opportunity to clarify this relationship when it delivered decisions on non-cooperation against Malawi and Chad. Unfortunately, while the Court recognized the tension between Article 98 and Article 27, it did little to resolve the conflict. Instead the Court proceeded to decide the cases as if Article 98 was not included in the Statute. This article considers possible approaches to resolving the tension between Article 98 and 27 of the Statute. It argues that this tension should be resolved through a deliberate process of interpretation using the ordinary meaning of words, in good faith, and in accordance with the object and purpose of the Statute. It considers that the oft-cited argument that referral by the Security Council places the situation country in a position analogous to that of states parties thus nullifying Article 98 is unconvincing. It proposes that closer attention to the different types of immunities in Article 98 is the key to understanding the relationship between Article 27 and Article 98.

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