CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ HEAD OF STATE IMMUNITY IN TRIANGULAR RELATIONS … the AC judgment is that Article 27 has gained a wider scope than would result from its actual wording: it now represents “a treaty derogation to the immunities enjoyed by Heads of State which binds (i) States Parties; (ii) States that accepted ad hoc the Court’s jurisdiction; and (iii) non-party States referred by the UN Security Council.” 43 As mentioned above (see part 3), the discussion on the interpretation of SC resolutions and whether they can remove the immunity was conducted starting in 2005 after the referral of a situation in Sudan to the ICC. Later, when the second arrest warrant for Al-Bashir was issued by the PTC, the doctrine of international criminal law was still divided between supporters and critics of this approach. 44 This discussion can be now renewed in the light of the latest AC judgment. Critics have argued that the SC cannot, by its decisions, extend or change the scope and rules of the ICC’s jurisdiction. 45 It should be recognized that states that are not a party to the Statute have no obligations towards the Court. K. Ambos expressed the view that “it is questionable whether a Chapter VII SC decision can indeed extend the non-immunity rule of Article 27 of the ICC Statute to non-State Parties. For many this is an overly formalistic approach, especially if one takes into account the legitimacy deficit of the SC.” 46 According to W. Schabas, Article 27(2) cannot be invoked against Heads of non-party States. 47 Another argument is related to the international law principle pacta tertiis nec nocent nec prosunt expressed in Article 34 of the Vienna Convention on the Law of Treaties. 48 S. Williams and L. Sherif pointed out that President Bashir cannot be tried by a tribunal set up by third parties under an international agreement to which he is not subject. 49 Pacts should not affect the legal situation of non-signatories. P. Gaeta stated that such a broad interpretation of the legal effects of a Security Council resolution as was used by the PTC do not “conform to the legal nature’ of the Court as a treaty-based international organisation ‘governed by the principle of specialty’, which can only be endowed with the powers and competencies delegated to it by States Parties on the basis of the Statute”, and not by the Security Council. 50 Moreover, the Security Council did not expressly request the waiver of immunity in its resolution. In the discussed judgment the Appeals Chamber cut through the speculations as to the possible interpretations the ICC could adopt. In its decision the AC seems to have resolved the question of the relationship between the two provisions of the Statute that relate to immunities – the general ban on using international law immunities (Article 27(2)) versus the possibility to invoke “obligations under international law” as a shield against the Court’s jurisdiction (Article 98(2)). These two provisions must be read together in such a manner so 43 Ms Lattanzi observations in the AC Judgment in the Jordan Referral re Al-Bashir Appeal, ibidem, par. 88. 44 WERLE, G., JESSBERGER, F., Principles of International Criminal Law , OUP: 2014, p. 279. 45 See, inter alia : SCHABAS, W., The International Criminal… , supra note 38, p. 452; van ALEBEEK, R., The Immunity of States and their Officials in International Criminal Law and International Human Rights Law , OUP: 2008, p. 279; KING , H., Immunities and Bilateral Agreements: Issues Arising From Articles 27 and 98 of The Rome Statute, 4 New Zealand Journal of Public and International Law 2006, p. 277; O’KEEFE, R., Request by, supra note 22. 46 AMBOS, K., Treatise on International Criminal Law… , supra note 42, p. 416. 47 SCHABAS, W., The International Criminal Court… , supra note 39, p. 450. 48 This stance was also upheld by prof. O’Keefe in his observations, par. 85. 49 WILLIAMS, S., SHERIF, L., The Arrest Warrant for President al-Bashir, p. 78. 50 Observations of prof. Gaeta, AC, Judgment in the Jordan Referral re Al-Bashir Appeal, ibidem, par. 90.

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