It is moreover inaccurate to say that a State is under the ICC’s surrogate jurisdiction as it is the

States Parties which have conferred jurisdiction on the Court, not the other way around.1

Prosecutor Bensouda’s observation that while Sudanese President al-Bashir was indicted by the
ICC in 2009, yet in 2018 alone has visited Jordan, Chad, Uganda, Ethiopia, Turkey, Egypt,
Rwanda, and Saudi Arabia without arrest.2

It is likewise observed that article 27 is found in part 3 of the Statute whilst 87(5) and 98(1) are
found in part 9. By contrast, Part 3 refers to proceedings before the court whereas Part 9 in
various places expressly addresses the issue of procedures under national law.3 While the former
concerns a facet of jurisdiction that is commonly described as ‘adjudicatory’, the latter is an
iteration of the ‘jurisdiction to enforce’.4

It follows that when the exercise of jurisdiction by the Court entails the prosecution of a Head of
State or foreign affairs minister of a non-State Party, the question of personal immunities might
validly arise.5

1
Request for authorisation of an investigation pursuant to article 15, 20 November 2017, ICC-02/17-7-Conf-Exp,
¶45 citing The Trial of German Major War Criminals, Proceedings of the International Military Tribunal sitting at
Nuremberg, Germany, International Military Tribunal at Nuremberg, Judgment, (1 October 1946), ¶444.
2
International Criminal Court, Twenty-Seventh Report of the Prosecutor of the International Criminal Court to The
United Nations Security Council Pursuant to UNSCR 1593 (2005), (20 June 2018), ¶15,16,21.
3
Rome Statute, Part 3 and Part 9.
4
See Sascha Rolf Lüder, The legal nature of the International Criminal Court and the Emergence of Supranational
Elements in International Criminal Justice, 84 International Committee of the Red Cross 845 (March 2002), p.83.
5
Juan P. Calderon-Meza, Non-State Accessories Will Not Be Immune from Prosecution for Aggression, 58 Harvard
International Law Journal, Online Journal (2017), 51.