There is a distinction between those wanted officials from a State Party and those who are not. Regarding the officials of the State Parties, there is no disagreement that immunities of these officials have been waived not only before the Court but also before the States Parties. Immunities are waivable. Article 31(1) of the Vienna Convention on Diplomatic Relations provides “The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under article 37 may be waived by the sending State”. Ratification of the Rome Statute is an implied way to waive such a privilege. All States Parties by ratification of the Rome Statue simultaneously waive the immunity of their leaders before the Court.

The Pre-Trial Chamber of the ICC in its decision on the failure of Malawi to implement the arrest warrant against Al-Bashir when he had a visit to this country stated “acceptance of article 27(2) of the Statute, implies waiver of immunities for the purposes of article 98(1) of the Statute with respect to proceedings conducted by the Court”. It is clear that if Article 27 was applied only to trials before the ICC and did not include the ability of national authorities from states parties to implement the arrest warrants issued by the Court, the whole structure of the ICC statute would be meaningless. Therefore, all officials of States Parties are under the jurisdiction of the Court and the ICC can request a State Party to arrest and surrender a head of state without having to worry that this would require the requested state to act inconsistently with obligations under international law.

The issue regarding the officials from non-member states is controversial. The Court is of the opinion that Article 27(2) extends to all officials regardless of their nationality. However, the African states and a considerable number of scholars oppose this position. They argue that Article 27(2) has a statutory nature and it cannot change the customary law protecting the officials of other states. Based on the applicability of immunities in favor of those who do not join the Court, the drafters of the Rome Statute put in place Article 98. The recent article imposes a limitation on the Court to issue such a request to put a state in potential conflict with existing obligations that have remained intact even in the post-ICC era. Reading Articles 98 and 27 together shows that non-immunity of the head of state is not a rule of customary international law, otherwise Article 98 should have not recognized an exception.

It seems that the Court initially was of a different view and tried to promote this idea that in the modern international law non-immunity of the head of state with respect to the international crimes is an absolute rule that is applicable at both national and international levels. The Pre-Trial Chamber in finding non-compliance by Malawi stated that “customary international law creates an exception to Head of State immunity when international courts seek a Head of State's arrest for the commission of international crimes”. Based on this conviction, regarding the cooperation regime between the states and the Court, the Chamber ruled that the States have to cooperate in arresting a head of a non-member State, since “when cooperating with this Court and therefore acting on its behalf States Parties are instruments for the enforcement of the jus puniendi of the international community whose exercise”. In other words, the Chamber argued that Al-Bashir lacks any immunity before states because states are acting on behalf of the Court not on their own.

However, this rule was rejected and criticized by many scholars. This caused the Court to later change its reasoning to justify its finding of non-compliance by those African countries that welcomed Al-Bashir on their territory. Following Bashir’s visit to Congo and later to South Africa in 2014 and 2015, the Court grounded the non-applicability of immunities of Al-Bashir on the authorities of the Security Council. The Chamber accepted that the personal immunity is valid before the national jurisdictions by making it clear that “it is not disputed that under international law a sitting Head of State enjoys personal immunities from criminal jurisdiction and inviolability before national courts of foreign States even when suspected of having committed one or more of the crimes that fall within the jurisdiction of the Court”.

This time, in agreement with the critics, the Chamber explicitly confirmed that “the Statute cannot impose obligations on third States without their consent. Thus, the exception to the exercise of the Court’s jurisdiction provided in article 27(2) of the Statute should, in principle, be confined to those States Parties who have accepted it”. Therefore, and in accordance with Article 98(1) of the Statute, if the Court wants a national from a non-member State who has an official capacity, the Court should “secure the cooperation of the third State for the waiver or lifting the immunity of its Head of State”. However, the Court still insisted on the States’ obligation to arrest and surrender Al-Bashir. In the Chamber’s eye, the SC Resolution 1593 (2005) which referred the situation in Darfur to the Office of the Prosecutor, removed simultaneously the immunity of Al-Bashir for the purpose of the proceedings before the Court.

The Chamber has argued that the referring resolution adopted under Chapter VII of the UN Charter has required that Sudan “cooperate fully” and “provide any necessary assistance to the Court”. Such full cooperation, in the Chamber’s opinion, includes the waiver of the immunity”, as required under the last sentence of article 98(1) of the Statute.  In other words, the Chamber reasons that “the cooperation envisaged in said resolution was meant to eliminate any impediment to the proceedings before the Court, including the lifting of immunities”. Indeed, the Court states that because Sudan is required to fully cooperate with the Court, it has to lift immunities of its officials if the Court wants them to pave the way of the Court’s operation. However, in the Court’s interpretation, even if Sudan fails to waive the immunities, they are removed by the SC’s decision and determination. It deserves to note that the African states added another argument to be exempted from arresting Al-Bashir. They invoked the AU’s resolution obliging them not to cooperate with the Court for this purpose. The Court provided an answer for this matter too. According to the Court, again, because the obligation arising from the SC resolution referring the Darfur situation prevails other obligations, according to Article 25 of the UN charter, all African states should give effect and priority to their obligation before the UN SC.

Since 2014, the Court has constantly followed this reasoning to request states to implement the warrants against Al-Bashir and to find them disobedient if they fail to arrest the Sudanese president. However, even the renewed argument has not satisfied all scholars and there are still some strong voices against the Court’s reasoning. Some cast doubt on the authority of the Security Council to waive the rule of immunities that has a status of customary rule. Others state that even if the SC has such authority it should be explicitly referred to in the referring resolutions. Something that is clearly absent from the resolution referred the Darfur situation. Indeed, the Chamber has imposed its interpretation on the Security Council.

The African states have insisted on their own interpretation too. South Africa requested the Assembly of States Parties in its 14^th session to take the initiative and put forward an interpretation to make the relationship between Articles 21 and 98 clear.  That suggestion was not heard. In the 15^th Session, South Africa in justifying its decision to withdraw from the Statute referred to the fact that its voice was not heard; and that led to its decision to leave the Court.

Tension between the African states  and the Court is a legal matter rather than political. It arises from difference in interpretations. The Rome Statute as a legal text is inherently open to interpretations. No one can say that there is only one interpretation for a text and then to impose its own interpretation. Tolerance and dialogue are required in this context in order to warrant cooperation. Here, at least, as some scholars have advised this legal diversity could be referred to the ICJ, as a third and neutral party, to have its advisory opinion as the final word. The Court seeks universality and in the world of diversities being dialectic and open to other ideas is necessary.