CYIL vol. 10 (2019)

HANNA KUCZYŃSKA – KAROLINA WIERCZYŃSKA CYIL 10 ȍ2019Ȏ and surrender of its Head of State, it refuses to comply with such request by relying on Head of State immunity. 36 Secondly, as a result of this decision, ‘Situation-Referral States’ were equated with ‘States Parties’. 37 While SC resolution 1593 does not make Sudan a State Party to the Rome Statute, with all the attendant obligations and powers, neither does it make it “a quasi State Party” to the Statute with respect to the referred situation. 38 In effect this means that the applicable cooperation regime is that provided for States Parties. 39 The result is thus the same as if it were a State Party – no immunities can be invoked in case of an arrest warrant against the President of such a State, as according to the AC Article 27(2) of the Statute functions in this relationship between the ICC and Sudan. As a result, the ICC is expanding the obligation to cooperate to include third states which do not wish to cooperate with the Court – States which, according to the Part 9 of the Statute, may ignore existing arrest warrants. This judgment broadens the jurisdiction of the ICC and gives it extraterritorial jurisdiction on the territories of states which are not State Parties to the ICC – although the SC referred only a “situation” in such a State and not “the whole territory” of this state to the ICC. 40 One can plausibly argue against such an extensive interpretation of the Rome Statute. Such judicial activism may be perceived as “over-intrusiveness” and can be assessed by some states as a threat to their sovereignty, an accusation which has already raised criticism directed towards the Court in many previous situations. 41 6. Head of State immunity in the vertical relationship (Al-Bashir’s immunity in Sudan) By ratifying the Rome Statute, the State Parties renounced their right to claim immunity with respect to Heads of State. This is not the case with non-State Parties. The Statute cannot deprive them of their immunities that arise from customary international law. However, according to the AC the obligation on the part of Sudan to cooperate with the ICC and execute arrest warrants without invoking Head of State immunity arises from Article 25 of the UN Charter, on the basis of which the Security Council issued its resolution. Sudan – a Member State of the United Nations – is obliged to accept and carry out the decisions of the UN Security Council. Resolution 1593 therefore creates an obligation to ‘fully cooperate’ which is legally binding on Sudan. There could simply be no ‘full cooperation’ if Sudan could invoked immunities vis-à-vis the Court. Thus, according to this reasoning it is Security Council resolution 1593 which forces Sudan to surrender the prosecuted person despite the existence of a claimed immunity. In short, according to the AC judgment the SC resolution has removed immunity from the Head of State of Sudan, 42 and a consequence of 38 AC, Judgment in the Jordan Referral re Al-Bashir Appeal, ibidem, par. 86, observations of Mr Tsagourias. 39 This view was also expressed by W. Schabas in 2010: SCHABAS, W., The International Criminal Court. A Commentary on the Rome Statute , OUP: 2010, p. 452. 40 This is not a novel situation, as a few months ago the ICC issued a decision on the question of Myanmar which broadened its jurisdiction over neighboring countries; see: Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute”, ICC-RoC46(3)-01/18, 6.10.2018. 41 See for example reaction of Myanmar rejecting the ICC’s jurisdiction: https://news.un.org/en/story/2018/09/1021562 42 Such a possibility was considered by SCHABAS, W., The International Criminal Court… , supra note 39, p. 451; AMBOS, K., Treatise on International Criminal Law. Vol. I: Foundations and General Part , OUP: 2013, p. 416. 36 AC, Judgment in the Jordan Referral re Al-Bashir Appeal, ibidem, par. 126. 37 AC, Judgment in the Jordan Referral re Al-Bashir Appeal, ibidem, par. 83.

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