Head of State Immunity and the Implementation of the Rome Statute in Africa: Legal Challenges in the Case of Sudan

This study examines the legal challenges associated with the implementation of the Rome Statute in Africa, with a particular focus on head of state immunity in the case of Sudan. The study traces the historical and legal development of immunity from pre-colonial, colonial, and post-independence Sudan, demonstrating that domestic constitutional provisions, such as Article 60 of the 2005 Interim National Constitution of Sudan, grant sitting heads of state immunity from prosecution. These domestic provisions conflict directly with Article 27 of the Rome Statute (1998), which removes immunity for individuals, regardless of official capacity, for crimes under international law, including genocide, war crimes, and crimes against humanity, as codified in Articles 6–8. Through a doctrinal methodology, the study critically analyses international law instruments, African Union decisions, and domestic legal frameworks, highlighting key legal challenges such as the tension between state consent under Article 34 of the Vienna Convention on the Law of Treaties (1969) and ICC jurisdiction; conflicts between AU binding decisions under Articles 4(a) and 23(2) of the AU Constitutive Act and ICC obligations; the absence of effective enforcement mechanisms under Articles 86–89 of the Rome Statute; constitutional immunity in Sudan; and perceptions of selective prosecution under Article 21(3) of the Rome Statute. The study also reviews major cases, including Prosecutor v Omar al-Bashir (ICC Warrant 2009 & 2010), South African Supreme Court of Appeal decision on al-Bashir (2016), Prosecutor v Thomas Lubanga Dyilo (2006), and Prosecutor v Germain Katanga (2009), illustrating practical impediments to the ICC’s universalist jurisdiction in Africa. The study situates these challenges within theoretical frameworks including the Doctrine of Sovereign Immunity (Vattel 1758; Kelsen 1945), the Complementarity Principle under the Rome Statute (1998; ICC Jurisprudence), the Theory of Universal Jurisdiction (Nuremberg 1945; Bassiouni 1999), and Realist Theory of International Relations (Morgenthau 1939; Waltz 1979), demonstrating that doctrinal gaps, constitutional protections, and political realities collectively hinder effective enforcement of international criminal law in African contexts. Based on these findings, the study recommends harmonising ICC provisions with domestic immunity laws, enacting domestic enabling legislation incorporating Articles 17, 27, and 86–89 of the Rome Statute, clarifying the interplay of UN Charter obligations (Articles 25 and 103) with constitutional law, strengthening AU-ICC coordination, improving enforcement mechanisms, reconciling constitutional immunity with international obligations, promoting regional legal harmonisation through the Malabo Protocol (2014), building national judicial capacity, and enhancing transparency to reduce perceptions of selective justice. These doctrinally grounded recommendations aim to bridge the gap between sovereignty, constitutional protections, and international accountability, ensuring that the ICC can function effectively in Africa while respecting domestic and regional legal frameworks. The study concludes that without harmonisation between domestic, regional, and international legal instruments, and without mechanisms to enforce cooperation while respecting constitutional protections, the universal principles of the Rome Statute will continue to encounter significant legal and political obstacles in Africa. By analysing Sudan as a case study, this research contributes to the scholarly discourse on international criminal justice, state immunity, and the practical challenges of implementing the Rome Statute in contexts where constitutional law and political realities conflict with international obligations.