CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ HEAD OF STATE IMMUNITY IN TRIANGULAR RELATIONS … The judgment of the ICC Appeals Chamber (AC) few weeks ago in a decision concerning the issue of Head of State immunity and the cooperation of states did not mitigate existing scepticism – on the contrary the voices echoing the need for substantial reform of the ICC will likely grow stronger after the judgment. 4 Although the question of Head of State immunity is one of the most fundamental questions in international criminal law, the issued decision leaves many doubts in the minds of careful readers of the judgment. The question considered by the Appeals Chamber was “whether Head of State immunity finds application in a situation where the Court requests a State Party of the Rome Statute to arrest and surrender the Head of State of another State (in this instance, Sudan), which, while not being party to the Rome Statute, is the subject of a referral to the Court by the UN Security Council (further SC or UN SC) and, in terms of Resolution 1593, obliged to fully cooperate with the Court.” 5 Specifically the question was whether the president of Sudan, which is not a State Party of the ICC Statute, was immune from the jurisdiction of Jordan, which is an ICC State Party, when it executed an arrest warrant issued by the ICC in a case referred to the Court by the resolution of the SC. What is controversial about the judgment is not the conclusion of the Court that there is no rule of customary international law recognizing Head of State immunity vis-à-vis an international court, 6 which was confirmed by the ICC, nor that “in the State Parties’ vertical relationship with the Court and in the horizontal relationship between States Parties there is no Head of State immunity if the Court is asking for the arrest and surrender of a person” but that such a horizontal relationship can actually refer to the Head of State of a non-party State regardless of whether the situation was referred by the Security Council. 7 Finding these outcomes quite confusing, especially in light of the very extensive competences of the SC vis- à-vis the Court, we will refer to the following issues: Head of State immunity in customary international law; the referral of the situation of Sudan (Darfur) by the SC and the further procedure before the ICC; the obligations of non-State Parties to the ICC vis-à-vis the SC resolution; and controversies resulting from the issued judgment. 2. Head of State immunity in customary international law Immunities are very old instruments of a procedural character in international law, serving the purpose of protecting state officials by preventing interferences in their performance of their functions. Immunities are not granted for the personal benefit of the protected persons, but to ensure the effective performance of their functions on behalf of the state they represent. Immunities have their roots in the sovereign equality of states and their rationale is reflected in Latin maxim par in parem non habet imperium . High-ranking state representatives enjoy immunities from the jurisdiction of other states for the duration of their office 8 and 4 There is already widespread discussion concerning that decision, mostly critical. See, for example, the post of Dapo Akande and the discussion following that post https://www.ejiltalk.org/icc-appeals-chamber-holds-that- heads-of-state-have-no-immunity-under-customary-international-law-before-international-tribunals/ [accessed 31.05.2019] 5 AC, Judgment in the Jordan Referral re Al-Bashir Appeal, 6.05.2019, No. ICC-02/05-01/09 OA2, par. 96.

6 AC, Judgment in the Jordan Referral re Al-Bashir Appeal, ibidem, par. 115. 7 AC, Judgment in the Jordan Referral re Al-Bashir Appeal, ibidem, par. 114.

8 We are setting aside here the question of different kinds of immunities, but for the sake of clarity it must be mentioned that immunities ratione personae refer to the holders of an office who benefit from the term of office,

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