CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ HEAD OF STATE IMMUNITY IN TRIANGULAR RELATIONS … of the territory of State Parties, covering also the crimes committed on the territory of states which are not State Parties to the Statute. So far the SC has referred two such situations, namely in Libya and in Sudan (Darfur). The situation in Sudan (Darfur) was referred to the ICC by the SC acting under Chapter VII of the Charter of the United Nations to pass Resolution 1593 (2005). 17 The SC resolved to refer the events taking place in Darfur since 1 July 2002, and decided “that the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully.” 18 It is clear that every State Party to the UN Charter has accepted the obligations imposed by that Charter, including the power of the SC to impose obligations on states. Every SC resolution is binding on the states on basis of Art. 25 of the UN Charter, and it should also prevail over any other treaty obligations. The SC resolution is a source of obligation for Sudan, which obliged it to ‘fully cooperate’ with the ICC. Such a formulation raised many doubts in the doctrine of international law, to which we briefly refer here. It is generally accepted that SC resolution triggers the jurisdiction of the ICC, but it does not make Sudan a State Party to the Rome (ICC) Statute. The question arises, however, as to the precise scope and content of the obligations imposed by the SC. Some authors argue that by virtue of a SC referral States that are not parties to the ICC become bound by the obligation under the Rome Statute to cooperate fully. Dapo Akande argues that although the obligations stemming from an SC resolution are “stronger obligations than the obligations which ICC states parties ordinarily have under the Statute”, in that situation such states also have the rights of State Parties vis- à-vis the provisions of the Statute. 19 This however could be interpreted in a different way, more tied to the literal provisions of the SC resolution. In the view of some other authors, the resolution should not be read in such a way as to give rise to legal effects other than those expressly envisaged in its text. One should not infer from the resolution obligations other than those expressly formulated in its provisions, 20 because if one agrees to a broader interpretation of SC resolutions one thus accepts broad competences on the part of the SC – which is not a judicial body – to interfere in the criminal justice system. The obligations of states should be directly expressed in the resolution, not hidden in the injunction to “cooperate fully.” Nonetheless the question still remains of how to interpret the provision contained in the SC resolution “to cooperate fully”, which was addressed not only to the State Parties to the Statute but also to Sudan, which was/is not a State Party to the Statute. The content of this 17 SC Res. 1593 (2015), on line at: https://www.icc-cpi.int/nr/rdonlyres/85febd1a-29f8-4ec4-9566-48edf55cc587 /283244/n0529273.pdf. 18 SC Res. 1593 (2015), dis. 2. 19 AKANDE, D., The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the ICC, 10 Journal of International Criminal Justice 299 (2012), p. 306. 20 Observations by Professor Paola Gaeta as amicus curiae on the merits of the legal questions presented in the Hashemite Kingdom of Jordan’s appeal against the ‘Decision under Article 87 (7) of the Rome Statute on the noncompliance by Jordan with the request by the Court for the arrest and surrender [of] Omar Al-Bashir’ of 12 March 2018, ICC-02/05-01/09 OA2, 18.06.2018, p. 5.

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