CYIL vol. 10 (2019)

HANNA KUCZYŃSKA – KAROLINA WIERCZYŃSKA CYIL 10 ȍ2019Ȏ as to create no inconsistencies nor incompatibility. 51 The AC concluded that it was crucial to the way of functioning of Article 98(2) that it does not itself stipulate, recognise, or preserve any immunities – it is not a source or “a fountain of immunity”. Whereas Article 27(2) governs the exercise of jurisdiction of the ICC, Article 98(2) applies to the rules of cooperation, and it can only constitute a reason to deny an arrest and surrender in specific cases when such an certain “obligations under international law” exist. 52 It is a procedural rule that determines how the Court is to proceed where an immunity exists that could stand in the way of a request for cooperation. So it is a tool for resolving a conflict (“a conflict- avoidance rule”) where an immunity exists, ensuring that States Parties are not placed in a situation where their cooperation obligations require them to breach an obligation owed to a third State. 53 Additionally, according to the AC not all “obligations under international law” result in creating a shield against ICC prosecution. For example, the Convention of 10 of May 1953 on the Privileges and Immunities of the Arab League 54 does not provide such a shield even though Article 11 of this Convention addresses the issue of immunity of member state representatives from arrest and detention when travelling to and from conferences. The Appeals Chamber narrowed down the scope of Article 98(2) agreements and found that Articles 11 and 14 of the 1953 Convention are outside the scope of this provision, which means that the said 1953 Convention is not applicable before the Court. 55 Article 98(2) of the Statute does not concern immunities – both customary and conventional in nature – but only agreements according to which a receiving State undertakes not to surrender a person of the sending State to the Court without prior consent, meaning specific agreements affirming the exclusive jurisdiction of States ‘sending’ personnel abroad bilaterally or through a contribution to multilateral operations. Typical examples of such agreements are so-called ‘status of forces agreements’, which regulate the status of armed forces of a sending State on the territory of the receiving State. This argument has been presented in the literature before – W. Schabas found that it is in compliance with the drafting history of Article 98(2) of the Statute. 56 The last issue connected with the existence of Al-Bashir’s immunity in Sudan is the temporal scope of the immunity. Presently, as Al-Bashir is no longer the President of Sudan. Thus should also be decided whether a former Head of State is still protected by material immunity for acts committed while in office. It is assumed in the literature that a former Head of State is protected only by the material immunity for acts committed within his or her official capacity. However, crimes of international law are acts committed “privately” and not within the framework of any official capacity – thus no formal (procedural) immunity applies. 57 Also, in the Arrest Warrant Case the ICJ concluded that a former official can be held criminally responsible – as a private person – for crimes committed during his or her term of holding office. 58 51 There was even a proposal, presented by M. Cherif Bassiouni, to join them into one provision in order to avoid problems of interpretation. See: SCHABAS, W ., The International Criminal Court , supra note 39, p. 452. 52 SCHABAS, W., The International Criminal Court , supra note 38, pp. 452 and 1045. 53 AC, Judgment in the Jordan Referral re Al-Bashir Appeal, ibidem, par. 131. 54 https://uia.org/s/or/en/1100065218 [accessed 24.05.2019]. 55 AC, Judgment in the Jordan Referral re Al-Bashir Appeal, ibidem, par. 158. 56 SCHABAS, W., The International Criminal Court, p. 452. 57 CRYER, R., FRIMAN, H., ROBINSON, D., WILMSHURST, E., An Introduction..., supra nota 8, p. 544. 58 CRYER, R., FRIMAN, H., ROBINSON, D., WILMSHURST, E., An Introduction..., supra note 8, p. 544;

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