CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ HEAD OF STATE IMMUNITY IN TRIANGULAR RELATIONS … arrest warrant, as the obligation to prosecute certain crimes of international law stems from international treaties. In such a case a non-State Party can choose whether to execute the ICC warrant or to prosecute the perpetrator itself. In both cases it is executing its obligations under international law. 31 However, the issue of the consequences for the interested state in the case of a referral from the Security Council was never unequivocally assessed. Following the issuance by the PTC of the Request to all State Parties to the Rome Statute for the Arrest and Surrender of Omar Al-Bashir, it was visible that there would be a problem if such a case were to arise and that it would have to be solved by the practice of the ICC. In 2002G. J. Knoops assumed that only States Parties are obliged to execute the Court’s arrest warrants. 32 However, the Al-Bashir case showed that the ICC determined that it is not only States Parties that are obliged to execute the Court’s arrest warrants, but also non-party states as well in a case where the situation was referred to the ICC by the Security Council. This results in an obligation on the part of third states, i.e. being at the same time State Parties, to acknowledge the effects of this obligation. Thus, as a result of Resolution 1593 triggering the jurisdiction of the ICC under Article 13(b) of the Statute, ‘the legal framework of the Statute applies, in its entirety, with respect to the situation referred’, 33 as every time the Court’s jurisdiction is triggered it must be exercised “in accordance with [the] Statute”. This conclusion of the AC results in the establishment of a certain regime of cooperation between the ICC and such states where the situation was referred to the ICC by the Security Council. The cooperation regime with the ICC, as set out in Part 9 of the Statute, makes a distinction between the obligations of States Parties to the Rome Statute on one hand, and cooperation by States not parties to the Statute on the other hand. According to Article 86 of the Statute, States Parties are obliged to cooperate fully with the Court, and the more specific obligations are set out in the subsequent articles. The cooperation of States not parties to the Statute is addressed in Article 87(5), which provides, in its sub-paragraph (a), that the Court may ‘invite any State not party to [the] Statute to provide assistance under [Part 9 of the Statute] on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis.’ 34 As the Statute does not provide for a third regime of cooperation specific to UN Security Council referrals, such cooperation must be governed by either of the two regimes provided for under the Rome Statute. Given that Resolution 1593 does not provide any comprehensive regime of cooperation that would guide the Darfur referral (as no ad hoc or other agreement with Sudan was concluded), the Appeals Chamber found that the applicable cooperation regime is that provided for States Parties. To sum up, when situations are referred to the Court by the UN Security Council, the Court exercises jurisdiction in accordance with the Statute in the same way as in situations referred by States Parties or opened proprio motu by the Prosecutor. 35 This finding led the AC to reach two conclusions. Firstly, the term ‘cooperate fully’ in Article 86 was interpreted by the AC in the context of Article 27(2). A State Party will not be considered to be cooperating fully with the Court if, when faced with a request for the arrest 31 KNOOPS, G.J., Surrendering to international criminal courts. Contemporary Practice and Procedures , New York: 2002, p. 40. 32 See, inter alia , KNOOPS, G. J., Surrendering to international criminal courts , pp. 39-40. 33 AC, Judgment in the Jordan Referral re Al-Bashir Appeal, ibidem, par. 37. 34 AC, Judgment in the Jordan Referral re Al-Bashir Appeal, ibidem, par. 136. 35 Observations of profesor Lattanzi, AC, Judgment in the Jordan Referral re Al-Bashir Appeal, ibidem, par. 88.

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