CYIL vol. 10 (2019)

HANNA KUCZYŃSKA – KAROLINA WIERCZYŃSKA CYIL 10 ȍ2019Ȏ obligation so far is not clear. Some scholars interpret this expression in the said resolution as amounting to the same cooperation as that of State Parties to the Statute, namely cooperation consistent with Part IX of the Statute, 21 while the others, think that it cannot be interpreted so broadly 22 and subsequently that the SC resolution solely obliges Sudan to comply with any request to it by the Court or the ICC Prosecutor for cooperation or assistance. The Appeals Chamber in the discussed decision opted for the first interpretation, arguing that the obligation to cooperate fully creates the same obligations for Sudan as for the rest of the State Parties to the Statute, not only as regards Part IX but also in relation to Article 27 of the Statute. The reasoning of the Court is presented below. Following the SC resolution, the ICC issued two arrest warrants concerning Omar Hassan Ahmad Al-Bashir (further Al-Bashir), but neither Sudan nor any other state (even including any State Parties to the ICC Statute) arrested or surrendered him to the ICC. A lack of cooperation from Jordan resulted in two judgments, from both the Pre-Trial Chamber (PTC) and the Appeals Chamber (AC), which discussed the scope of state obligations vis-à-vis the ICC. The AC decision, discussed below, established a precedent for the ICC. It constitutes a new argument in the discussion concerning Head of State immunities before international criminal tribunals. The key findings relate to the impossibility to use Head of State immunity as a reason not to execute ICC arrest warrants. 4. The judgment of the Appeals Chamber in the Jordan Referral In the Prosecutor v. Al-Bashir case, 23 the PTC requested the arrest and delivery of the President of Sudan. The request was addressed not only to Sudan, but to all States Parties of the Statute, as well as members of the SC. 24 The Chamber considered that although Sudan had not ratified the Statute, it was nevertheless a member of the United Nations, and the situation in Darfur was referred to the ICC by the SC under Resolution 1593. 25 The PTC 21 Such as AKANDE, D. supra note 19, or A. ZIMMERMANN, see: Request By Professor Andreas Zimmermann For Leave to Submit Observations 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 Non-Compliance 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, 26.04.2018. 22 See: Observations by Professor Paola Gaeta, supra note 20, and O’Keefe, Request by Professor Roger O’Keefe for leave to submit observations 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 non-compliance by Jordan with the request by the Court for the arrest and surrender [of] Omar Al-Bashir”’ of 12 March 2018 (ICC-02/05- 01/09-326). 23 The Prosecutor v. Al-Bashir, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09, 4.03.2009, par. 41. 24 Request to all State Parties to the Rome Statute for the Arrest and Surrender of Omar Al-Bashir, 6 March 2009, ICC-02/05-01/09-7, and Supplementary Request to all State Parties to the Rome Statute for the Arrest and Surrender of Omar Al-Bashir, 21 July 2010, ICC-02/05-01/09-96. However, in July 2009 the African Union officially refused to cooperate with the ICC as regards this warrant. For the Decision on the meeting of African State Parties to the Rome Statue of the International Criminal Court (ICC) (Doc. Assembly/AU/13(XIII)), see: http://reliefweb.int/report/sudan/decision-meeting-african-state-parties-rome-statue-international-criminal- court-icc-doc [accessed 11.05.2016]. 25 See: AKANDE, D. The Legal Nature of Security Council Referrals to the ICC and its Impact on AL Bashir’s Immunities, 7 Journal of International Criminal Justice (2009), pp. 304-306; CRYER, R., FRIMAN, H., ROBINSON, D., WILMSHURST, E., An Introduction…, supra note 8, p. 556; P. GAETA, Does President Al-Bashir Enjoy Immunity from Arrest? 7 (2) Journal of International Criminal Justice 2009, p. 330; and for

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