CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ HEAD OF STATE IMMUNITY IN TRIANGULAR RELATIONS … therefore assumed that not only the States Parties, but all UN members as well could not evade the Court’s request for cooperation. It justified its decision by declaring that the power of the ICC to prosecute the President of Sudan flows from the binding force of the decision of the SC, which referred the case to the Court’s jurisdiction. Thus according to the PTC, the Statute and the SC resolution are equivalent as a source of state responsibility and force a states to surrender the prosecuted person despite the existence of immunity. In this decision the PTC clearly relied upon such an interpretation that allows the use of Article 27(2) against Heads of non-party States, finding that: “[B]y referring the Darfur situation to the Court, pursuant to article 13(b) of the Statute, the Security Council of the United Nations has also accepted that the investigation into the said situation, as well as any prosecution arising therefrom, will take place in accordance with the statutory framework provided for in the Statute, the Elements of Crimes and the Rules as a whole.” 26 When in March 2017 the Hashemite Kingdom of Jordan hosted the Summit of the Arab League, Al-Bashir attended the Summit. Although the arrest warrant had already been issued, Jordan did not execute it. In response, on 11 December 2017 the PTC issued its “Decision under article 87(7) of the Rome Statute on non-compliance by Jordan with the request by the Court for the arrest and surrender of Al-Bashir.” 27 In this decision the PTC also found that this failure to comply should be referred to the Assembly of State Parties and the UN SC. Jordan filed an appeal alleging errors of law and errors by the PTC in the exercise of its discretion. The Appeals Chamber (AC) unanimously confirmed the decision issued by the PTC (further referred to as the Al-Bashir decision). The AC concluded that States Parties to the Rome Statute have, by virtue of ratifying the Statute, accepted that Head of State immunity cannot prevent the Court from exercising its jurisdiction, and in consequence they cannot invoke Head of State immunity in their horizontal relationship with another state if the Court were to request them to arrest and surrender the Head of such other State. According to the AC, if the ICC is empowered to issue an effective arrest warrant both to the State Party of the nationality of the Head of State and the State Party hosting the actual residence of that person, the state of actual residence cannot refuse to execute the warrant. As the Court described it: “[T]he law does not readily condone to be done through the back door something it forbids to be done through the front door.” 28 In such situations, the requested State Party is not proceeding to arrest the Head of State in order to prosecute him/her before the courts of the requested State Party in a strictly horizontal relationship – it is only lending assistance to the Court in its exercise of the Court’s jurisdiction, and the ICC cannot be excluded from that relation. In its decision the AC analysed what the consequences are for states in the case of [referring a case?] by the SC. The AC referred to the content of state cooperation under the Rome Statute. The question 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 SC and, in terms of Resolution criticism see: WILLIAMS, S., SHERIF, L. The Arrest Warrant for President al-Bashir: Immunities of Incumbent Heads of State and the International Criminal Court, 14 (1) Journal of Conflicts and Security Law 2009, p. 78. 26 AC, Judgment in the Jordan Referral re Al-Bashir Appeal, ibidem, par. 45. 27 Decision of 11 December 2017, ICC-02/05-01/09-309. 28 AC, Judgment in the Jordan Referral re Al-Bashir Appeal, ibidem, par. 127.

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