Immunity Rights Problems before the ICC: Between the 1961 Vienna Convention and the 1998 Rome Statute

Introduction to The Problem: The right to immunity in international law is a privilege granted to Diplomatic Officers in the context of carrying out missions, in particular, representing the state. The immunity rights of a Diplomatic Officer must be protected and respected by the recipient state as an obligation in diplomatic relations. The rights of immunity respected in customary international law under the 1961 Vienna Convention are inversely proportional to those stipulated in the 1998 Rome Statute regarding the abolition of immunity rights before the International Criminal Court. This thing then raises the status of immunity rights problems between the 1961 Vienna Convention and the 1998 Rome Statute of the International Criminal Court. Purpose/Objective Study: This study aims to examine the problematics of applying immunity rights for diplomatic officials, namely how the respect and protection of immunity rights regulated in the 1961 Vienna Convention and how the abolition of immunity rights held in the 1998 Rome Statute of ICC. This thing then looks for problems in immunity rights between the two conventions in practice and occurredcases. Design/Methodology/Approach: This study used a normative research method. The assessment is carried out using a conceptual approach, a statute approach, and a case approach so that the relevance between the problem and the final purpose of this research is found. Findings: This study found several reasons regarding the status of immunity rights before the International Criminal Court, which raises the problem of weaknesses in international law related to immunity rights. The flaw was triggered due to the lack of legal certainty associated with the lack of hierarchy used in the provisions of international law. So that between the 1998 Rome Statute of ICC and the 1961 Vienna Convention, there was a dilemma in its application. Based on the case, the UN Security Council, as an international institution, influences the decision on how the status of the right to immunity can be applied or not. Paper Type: Research Article P-ISSN: 1412-6834 E-ISSN: 2550-0090 Volume 11, Issue 02, 2020, pp. 222-233


Introduction
The right of immunity, according to international law, is the right granted by state officials to diplomatic or consular officials, in this case, also common to heads of state who wish to help to carry out their duties abroad. The history of the right to immunity begins with the privileges granted to state officials obtained by the 1961 Vienna agreement on Diplomatic Relations in carrying out their country's duties. This right of immunity can be combined with diplomatic officials' claims, cannot be arrested or detained, and the recipient country must approve and take appropriate steps to assist its movement, manifest, defend, and dignity. Copyright in international law governs the 1961 Vienna Convention on Diplomatic Relations, where the convention deals with protecting diplomatic protection from various attacks.
The immunity granted to diplomatic officials guarantees the diplomat from various disturbances by protecting himself, his wealth, his home, and his office (Wulan, 2017). The legal basis used in the 1961 Vienna Convention had an enormous influence on the development of diplomatic law because almost all countries entered into diplomatic relations using the provisions of this convention as the legal basis for its implementation (Starke, 2012). Therefore, all the needs for inter-state ties in building such cooperation require legal certainty if an official diplomat or representative is protected by his rights while carrying out his diplomatic mission.
Even though international customary law regulates the protection of diplomatic or state officials who are abroad in carrying out their mission based on the rights they have, there is a case where the immunity of a head of state can be ignored. The case happened in Sudan, President Omar Al-Bashir, who came to South Africa in June 2015 as a diplomatic guest to attend the African Union High-Level Conference in Johanessburg. This case happened to the President of Sudan because of the crime alleged against him for genocide.
Based on UN Security Council investigations, the situation in Sudan continues to pose a threat to international peace and security. In March 2005, the reference requested a further exploration of the situation in Sudan. The situation in Sudan, precisely in Darfur, is within reach of the refugees in Eastern Chad and those who are in exile throughout Europe. Based on investigations traced that there are 1.65 million displaced people in Darfur, Sudan, as well as more than 200,000 refugees from Darfur to Chad (International Criminal Court, 2019a). Therefore, the International Criminal Court (ICC), as a permanent criminal court established based on the 1998 Rome Statute, opened an investigation in June 2005 with suspected Sudan Government Officials, Militia Leaders, and Leaders of the Resistance Front against charges of genocide, war crimes, and crime towards humanity.
Based on the situation in Sudan, for the first time, the ICC investigated a non-party state of the 1998 Rome Statute and the head of state. In this case, the ICC is central in creating a system that can establish accountability for gross violations of human rights (Prakash, 2002). The ICC is a permanent international criminal tribunal formed over conflicts of serious crimes that occur that are seen as disturbing world peace and security (Sekartadji, 2004). The purpose of the formation of the ICC in the 1998 Rome Statute is as a struggle against impunity. The realization of this elimination of immunity arises because the previous international justice system was too soft and reluctant to deal with this kind of action. This thing then has implications for the concern that some countries are unwilling to enter into the jurisdiction of the ICC (Cakmak, 2006).
Countries that have ratified the 1998 Rome Statute agree to prosecute the perpetrators accused of committing these legal crimes for peace and security. It is not like the previous tribunal court, which is not retroactive (Philipp, 2003). Nonretraction of the jurisdiction implemented by the ICC of severe crimes means that the jurisdiction applies to the state after the entry into force of the 1998 Rome Statute of International Criminal Court in 2002, and is sufficient for countries after signing ratifying the 1998 Rome Statute of International Criminal Court.
Based on the case of the President of Sudan, in this case, Sudan is not a state party that ratified the Rome Statute of 1998. However, his arrival as a diplomatic guest attended the High-Level Conference Africa Union. South Africa was the host and was one of the state parties of the ICC for ratifying the 1998 Rome Statute. Cases alleged by President Omar Al-Bashir such as genocide, war crimes, and crimes against humanity were denied by South Africa and led South Africa to withdraw from the ratification of the 1998 Rome Statute of the International Criminal Court. The South African disclaimer for the ICC's accusations against the Sudanese President was because the Sudanese President's capacity as a diplomatic guest attended the Africa Union Summit and had immunity rights under the 1961 Vienna Convention. However, according to the ICC, the application of immunity rights before the ICC can be excluded based on the 1998 Rome Statute of the International Criminal Court. All member countries are obliged to arrest perpetrators of criminal offenses established by the ICC in the territory of the member states. Thus, South Africa is not doing any good cooperation as a state party of the ICC in Article 98 of the 1998 Rome Statute of International Criminal Court.
Based on this background, there are several problems in this study, namely: 1) What are the scope of implementation of the right to immunity under the Vienna Convention of 1961 concerning Diplomatic Relations; 2) What is the form of abolition of immunity rights based on the Rome Statute of 1998; and 3) What is problematic of the implementation of immunity rights before the International Criminal Court.

Methodology
The discussion on the problem of immunity rights before the ICC was examined using the normative research method. The research study used a conceptual approach, a historical approach, and a case approach. This study uses some data as a binding legal power source, consisting of primary legal material, secondary legal material, and tertiary legal material. The primary legal materials used are the 1961 Vienna Convention on Diplomatic Relations, the 1998 Rome Statute of International Criminal Court, and Charter of the United Nations and the Statute of the International Court of Justice 1945. Assessment with secondary and tertiary legal material is taken based on relevant legal sources in this research, such as books, articles, national and international journals, and online sources that strengthen the evidence of this research.

Implementation of Immunity Rights Based on the 1961 Vienna Convention on Diplomatic Relations
The right of immunity in international law is a right that aims to provide immunity and privileges that enable them to carry out their functions independently, impartially, and efficiently to give them an extra degree of status or exempt from their territoriality (Regina, 2016). The legal basis for the right to immunity is found in the 1961 Vienna Convention on Diplomatic Relations. According to Ian Brownlie, to effectively function the immunity rights, the International Organization, in this case, requires some guarantees of legal freedom for the protection of assets, headquarters, and personnel and representatives of member countries. Furthermore, analogous to diplomatic immunity and privileges, the conditions of immunity and special rights in respecting the jurisdiction of the host state are recognized in customary law (Suherman, 2003).
Based on Article 29 of the Vienna Convention of 1961, "The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom, or dignity." Article 33 of this convention stipulates diplomatic privileges in the form of immunity rights for sending countries and heads of diplomatic missions to be exempt from all forms of levies and taxes, whether national, local taxes, or other contributions to representative buildings (Karauwan, 2017).
About carrying out their duties on behalf of sending countries to third countries, a diplomatic official is protected under Article 40 paragraph (1) of the 1961 Vienna Convention, which reads: "If a diplomatic agent passes through or is in the territory of a third State, which has granted him a passport visa if such visa was necessary while proceeding to take up or to return to his post, or when returning to his own country, the third State shall accord him inviolability and such other immunities as may be required to ensure his transit or return. The same shall apply in the case of any members of his family enjoying privileges or immunities who are accompanying the diplomatic agent or traveling separately to join him or to return to their country." The recipient state should take steps to maintain attacks on the personal honor of the diplomatic official concerned and in this right, the immunity possessed by a diplomatic official in the form of immunity against the jurisdiction of the recipient state, whether criminal, civil, or administrative law (Karauwan, 2017). Based on the type, diplomatic immunity is grouped on how many varieties, namely: 1) Immunity to oneself; 2) Immune of a Diplomatic Representative's Family; 3) Immunity from being a Witness; 4) Immune Correspondence; 5) Immunity of Representative Offices and Residential Houses, and 6) Immunity of Diplomatic Officers during Transit.
The recipient state must exercise the right of immunity granted to a Diplomatic Officer in connection with the mission and function given by the sending government to the Diplomatic Officer. The failure of the implementation of a state in protecting diplomatic officials is a form of violation under Article 29 of the 1961 Vienna Convention, where this violation has international consequences, as well as the responsibility of the violating state of the convention and endangers diplomatic relations between the countries concerned (Yogy & Kurnia, 2018).

Abolition of Immunity Rights Based on the 1998 Rome Statute of International Criminal Court
The 1998 Rome Statute of International Criminal Court is a legal basis that forms a permanent international criminal court called the International Criminal Court. The International Criminal Court is a court established to investigate, prosecute and try those accused of the most severe crimes and concern to the international community as a whole, such as genocide crimes, crimes against humanity, war crimes, and crimes of aggression (International Criminal Court, 2019b). The formation of the ICC represented the culmination of a long journey in "The Struggle Against Impunity." International Criminal Court is an international criminal court body established based on international treaties under the 1969 Vienna Convention. The ICC continues to respect the sovereignty of a state so that it is expected that the ICC can be supported by the government widely (Scharf, 2001). The preamble of the 1998 Rome Statute reads that the ICC determined to end impunity for the crime perpetrators and prevent such crimes. Discussion on abolishing the right to immunity before the International Criminal Court is contained in Article 98 of the Rome Statute of 1998 concerning cooperation regarding the exclusion of immunity and consent for surrender.
The 1998 Rome Statute of ICC does not provide a more detailed explanation of how the abolition of one's immunity rights. However, based on Article 98 of the 1998 Rome Statute of ICC, it is explained that in disregarding immunity possessed by a diplomatic official accused of committing crimes within the criminal jurisdiction of the ICC, the ICC must obtain collaboration from the state. To override the immunity rights, it has to carry out further investigation processes. Concerning one's position as a Diplomatic Officer, based on Article 27 of the 1998 Rome Statute, it discusses "Irrelevance of official capacity." Based on paragraph (1) of this article reads, "This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence." Based on Article 27 paragraph (2) of the 1998 Rome Statute of ICC, "Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person." It means that the 1998 Rome Statute does not consider one's position related to a most serious criminal case, even though that person has the right to immunity recognized in international law.
However, if the case occurs to head of state in diplomatic relations, the status of the head of state does not represent the state entity. Ahead of state charged with a criminal case that is within the criminal jurisdiction of the ICC must be held individually accountable. It is contained in Article 25 of the 1998 Rome Statute concerning Individual Criminal Responsibility, where paragraph (2) reads, "A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment under this Statute." Although it does not mention the status of a person regarding the abolition of the right to immunity, this can make it clear that the person accused of a most severe crime must be held individually responsible.

Problematic of the Implementing Immunity Rights before the International Criminal Court
The establishment of the International Criminal Court based on the 1998 Rome Statute aims to uphold human rights for the most severe crimes contained in the jurisdiction of the ICC and a form of resistance to immunity. This form of resistance to immunity is interpreted in the 1998 Rome Statute of ICC by forcing the state party to arrest people enjoying diplomatic immunity if the person is found to have committed the most severe crime. It has caused problems related to implementing the right to immunity between the 1998 Rome Statute of ICC and the 1961 Vienna Convention.
The problem between the two international agreements is as if the aims are conflicting. Lack of legal certainty is one of the weaknesses of international law that is often highlighted. According to Martin Dixon in his book "Textbook on International Law," stated that many disputes between countries that arise in international law due to unclear international law rules rather than the gap of these countries to do something illegal (Dixon, 2000).
The uncertainty that causes legal tension in international law is because there is no hierarchy between international law (Sefriani, 2010). It is what distinguishes between national law and international law. According to Mochtar Kusumaatmadja, the sequence of types of sources of law in Article 38 paragraph (1) of the Statute of the International Court of Justice does not describe the order of importance of each source of law (Kusumaatmadja, 1982). As for Article 38 paragraph (1), The Statute of the International Court of Justice talks about the function of the court in deciding a dispute under international law, where applicable: "a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b) international custom, as evidence of a general practice accepted as law; c) the general principles of law recognized by civilized nations; d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law." Based on Article 38 paragraph (1) of the Statute of the International Court of Justice does not state that the position of an International Convention or other International Agreement is higher than the International Customs, or the general legal principles recognized by the state, even though they are listed in point (a). However, an ICC President, Sang-Hyun Song, stated that the Rome Statute of 1998 did not only create a judiciary but rather a new international legal system, which consisted of the ICC as an international criminal justice and national jurisdiction of each country. The vital role of each state party is considered to strengthen the implementation of the 1998 Rome Statute in national law, which is regarded as to consider ways to achieve the ICC's goals regarding the elimination of immunity (Song, 2012).
The critical role of state parties in the ICC is inseparable from the enactment of the Jus Cogens principle. Jus Cogens can be interpreted as a norm of international law that must be obeyed or may not be violated because of its high status in international law norms (Christmas & Setiyono, 2019). Jus Cogens is considered as an inseparable part in realizing world peace and security. It also applies to the 1998 Rome Statute to eradicate impunity, which is not just to punish perpetrators, but also to protect victims in the judicial process.
As for a case that occurred to the case of the Omar Al Bashir, it was led to conflicting legal rules between the Vienna Convention and the 1998 Rome Statute. It is then included in the criminal jurisdiction of the ICC in Article 5 of the Rome Statute of 1998. However, the consideration, in that case, is the Rome Statute of 1998 only applies to the participating countries which ratified the international treaty.
Based on Article 4 paragraph (2) of the 1998 Rome Statute, "The Court may exercise its functions and powers, as provided in this Statute, in the territory of any State Party and, by special agreement, in the territory of any other State." It means that the jurisdiction of the 1998 Rome Statute only applies to states parties that have ratified

Article History
Submitted 8 April 2020 -Revision Required 17 May 2020 -Accepted 27 September 2020 the 1998 Rome Statute. But in the case of the President of Sudan, Al Bashir, in this case, Sudan did not approve the 1998 Rome Statute.
The investigation process and request for arresting Omar Al Bashir by the ICC are based on the Preamble to the Rome Statute of 1998. The actions taken by the President of Sudan are acts that threaten world peace, security, and prosperity, so that they are done. The ICC wants to work with South Africa, which has ratified the 1998 Rome Statute to arrest President Al Bashir, because in his case that the President of Sudan came to South Africa as a diplomatic guest to attend the African Union High-Level Conference in Johannesburg. But South Africa refused to arrest President Al Bashir. South Africa viewed that the ICC ignored the process of the provisions in Article 98 of the Rome Statute on cooperation regarding the exclusion of immunity and approval for surrender.
Article 98 states that the Court cannot proceed with a request for surrender and assistance, which requires the state to act inconsistently with obligations under international law concerning one's nation or diplomatic immunity from a third state unless the Court obtains cooperation from the third state for rule out immunity. Even though Article 98 of the 1998 Rome Statute can be said to be multiple interpretations because no article defines who the "Third State" is.
South Africa's actions ignored the ICC's collaboration to arrest President Al Bashir because South Africa considered President Al Bashir's visit to South Africa as a diplomatic guest to attend the Africa Union High-Level Conference. Therefore the responsibility of organizing the High-Level Conference is from Africa Union so that the ICC should get approval from Africa Union regarding cooperation to arrest President Al Bashir. It is also added that Sudan is not a party to the 1998 Rome Statute (Jalloh, 2012). However, according to the ICC, the South African act of ignoring ICC cooperation was an act of defiance of the 1998 Rome Statute in Article 87 paragraph (7) of the 1998 Rome Statute, related to the Request for Cooperation. In practice, the successful implementation of the ICC depends on state cooperation in complying with arresting and handing over criminal offenders. So this implies that the ICC does not have the power to force state compliance with its requests (Banteka, 2016).
The South African reason for ignoring ICC cooperation to arrest President Al Bashir was because the Rome Statute of 1998 was conflicting with the international obligations on the immunity rights in the 1961 Vienna Convention. In this case, Sudan was not a State party ratifying the 1998 Rome Statute of ICC, so that jurisdiction should not apply to it. It is also according to South Africa as a recipient state, based on Article 29 of the 1961 Vienna Convention, to provide protection and respect for diplomatic officials from interference and attacks that threaten the freedom and honor of the diplomatic official.
According to the ICC Court Assembly, in connection with the non-party status of the 1998 Rome Statute, where the 1961 Vienna Convention grants diplomatic immunity to diplomatic officials before court proceedings can be excluded when the ICC requests the arrest of heads of state for international crimes. It is based on paragraph (2)  Based on the UN Charter, Articles 25 and 103, obligations of states complying with the decisions of the UN Security Council that arise as a reference to the situation. Article 25 of the UN Charter reads, "The Members of the United Nations agree to accept and carry out the decisions of the Security Council following the present Charter." The relationship of the Court with the United Nations is based on Article 2 of the 1998 Rome Statute, which reads, "The Members of the United Nations agree to accept and carry out the decisions of the Security Council following the present Charter." It is indeed that there is a problem regarding which legal position should take precedence between the 1961 Vienna Convention and the 1998 Rome Statute. However, based on the principles of international treaty law on the Pacta Sunt Servanda Principle, the treaty is binding for those who do so and must be done in good faith, following Article 2 The 1969 Vienna Convention on International Treaties (Bahri & Hafidz, 2017). International treaties consist of principles and rules of conduct that bind countries and must, therefore, be adhered to during relations between nations (Purwanto, 2009). It means that although the status of Sudan is not a party to the 1998 Rome Statute, where the jurisdiction of the ICC applies only to state parties, it was later followed up through the UN Security Council Recommendation Letter No.1593 of 2005.
Sudan's status as a UN member state requires Sudan to work together to process and investigate cases that occur to President Al Bashir. In addition to cooperation to process and investigate issues, collaboration is also requested to erase the existing immunity in President Al Bashir. It is based on Article 43 of the 1961 Vienna Convention, whereby the diplomatic function can end if there is a notification from the sending state regarding the termination of one's diplomatic status. It can be interpreted the diplomatic official's immune rights also can not apply.

Conclusion
Problems related to applying the status of immunity rights before the ICC in the case of President Al Bashir is one of the cases involving influence between the 1961 Vienna Convention and the 1998 Rome Statute. Because Sudan's status is not a party to the 1998 Rome Statute, plus President Al Bashir's position as a guest diplomatic, the

Article History
Submitted 8 April 2020 -Revision Required 17 May 2020 -Accepted 27 September 2020 Africa Union Conference of High Level made it seem as if President Al Bashir could stay away from ICC investigations. However, it appears that the ICC, which is working with the UN Security Council, does not seem to have lost its mind to continue processing President Al Bashir. The existence of UN Security Council Resolution No.1593 of 2005 made Sudan must cooperate with the United Nations together with the ICC to process President Al Bashir regarding the serious crimes he committed.
This study concludes that disputes that result in conflicting international conventions or international agreements can be resolved by referring to several other international agreements. Although there is no higher status of hierarchy regarding international treaties, it is essential to remember that any international contracts that have been agreed must comply with good faith following the legal principles of Pacta Sunt Servanda's international treaties. When a state is deciding the international treaty, then it has been bound by the provisions contained in that international treaty.
The absence of hierarchy in an international treaty concluded that the right to immunity is not the highest right granted to a diplomatic official. It must be noted that things that can threaten peace, security, and world welfare must be resolved for the sake of peace and security.