CYIL vol. 10 (2019)

HANNA KUCZYŃSKA – KAROLINA WIERCZYŃSKA CYIL 10 ȍ2019Ȏ 1593, obliged to fully cooperate with the Court.” 29 The AC came to the conclusion that the obligation ‘to cooperate fully with the Court’ creates the same obligations for Sudan as for the rest of the State Parties to the Statute. According to the AC, SC Resolution 1593 gave the power to the ICC to exercise its jurisdiction over this situation (and as it seems over all the cases that arise from its investigation into this situation). As this power must be, and can only be, exercised “in accordance with the Statute”, subsequently Sudan cannot invoke Head of State immunity because it must act in accordance with Article 27(2) of the Statute, which provides that immunities are not a bar to the exercise of jurisdiction by the ICC. 30 As a final conclusion the AC presented its opinion that the effect of Article 27(2) arises also in the horizontal relationship, i.e. that Sudan could not invoke Head of State immunity in relation to another State Party if it is requested to arrest and surrender Mr Al-Bashir. In consequence, Jordan was in violation of its Statutory obligations when it ‘disregarded’ the ICC’s arrest warrant. According to the decision of the Chamber, the duty to cooperate fully with the ICC introduced by the SC Resolution means that this cooperation cannot be restricted by immunities. In consequence, Articles 27 and 86 et seq. of the Statute must be read together, and “any possible tension between them must be reconciled”. The AC judgment raised several issues referring to the status of Sudan (a state not a party to the ICC Statute) vis-à-vis the ICC, and subsequently the regime of cooperation between the State Parties and the ICC. Below, the grounds of existence of immunity for Al-Bashir in Sudan, as adopted in the AC AL-Bashir decision will be assessed. Another issue is whether Art. 27(2) of the Statute binds Sudan. This in turn will lead to a question: What are the obligations of the other State Parties in horizontal relations, namely the status of Al-Bashir’s immunity in the requested state (Jordan). The legal situation of Jordan should be at the same time perceived as “triangular”, as not two but three subjects of international law are involved. In the end, the ambiguous relationship between the ICC and the Security Council will be analysed. As will be shown below, this analysis leads to a conclusion that the discussed judgment leaves many doubts as to the correctness of the AC’s assumption about the extended jurisdiction of the Court and raises the issue of the independence of the ICC from the SC. 5. The regime of cooperation applicable in the case of Sudan The basic principle of cooperation according to the Rome Statute is the obligation of a State Party to execute an ICC arrest warrant. Article 89 of the Rome Statute uses the phrase: “The Court may transmit a request for the arrest and surrender of a person, (…) to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.” Thus the Court may send a request for the arrest and surrender of a person to any State Party in which that person may be present, and request that such State cooperate. But while arrest warrants may be addressed to both groups of states (i.e. to “any state” pursuant to Article 89(1)), only State Parties are under a binding obligation to comply therewith. At the same time, there is nothing that would prevent a non-State Party from executing the ICC

29 AC, Judgment in the Jordan Referral re Al-Bashir Appeal, ibidem, par. 96. 30 AC, Judgment in the Jordan Referral re Al-Bashir Appeal, ibidem, par. 96.

54