CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ

HEAD OF STATE IMMUNITY IN TRIANGULAR RELATIONS …

7. Head of State immunity in horizontal relations (Al-Bashir’s immunity in Jordan) The most important element of the discussed decision is that Article 27(2) prohibits not only a State Party from invoking Head of State immunity in vertical relations, but also in a horizontal relationship if the ICC requests the arrest and surrender of a Head of State by making a request to that effect to a State Party. If a State Party itself cannot refuse to comply with the Court’s application by asserting such an immunity, it should not be able to deny cooperation “through” the other state to which the request for cooperation is addressed. The AC concluded that Head of State immunity did not stand in the way of Al-Bashir’s arrest by Jordan. If no immunity exists there, Jordan was not facing any ‘irreconcilable legal obligations’ when it was requested to arrest and surrender Mr Al-Bashir to the Court. 59 In consequence, there were no grounds for Jordan not to execute the request and therefore it did not comply with its obligation to cooperate with the Court pursuant to Articles 86 et seq. of the Statute. 60 It must be noted that this situation was not perceived by the AC as existing solely between the states, as the ICC is one of the actors in this legal situation. In this case the AC concluded that the relationship takes place between three subjects: the relations of the ICC with one state give rise to the obligations in relation to the ICC of another state. As results from the above considerations, not only can the State Parties not invoke the Head of State immunity vertically in their relationship with the Court, but also, on the basis of Article 27(2) of the Statute, the Head of State immunity does not function horizontally in the State Parties’ relationship between other States Parties when cooperation is sought by the Court. 61 As the Prosecutor put it: “[T]he requested State is nothing more than the Court’s agent in executing the Court’s arrest warrant, and consequently, the enforcement jurisdiction being exercised is that of the Court and not that of the requested State.” 62 The national authorities of the requested state act on behalf of the Court when they execute warrants of arrest issued by the Court. 63 This means that not only does the state where the immunity is asserted have an obligation to arrest and surrender the requested person, but also that the obligation extends to all the other State Parties to the Statute. In such situations, the requested State Party is not proceeding to arrest the Head of State in order to prosecute him or her before the courts of the requested State Party. 64 Also the ICC Prosecutor observed that the horizontal effect is a ‘necessary corollary’ of its vertical effect, in that States Parties must mutually respect that ‘the other is likewise bound ‘vertically’ by Article 27. 65 This is not a situation of an interstate conflict where one state interferes in the exercise of the sovereign rights of another state. The rationale “of perfect equality between States and their absolute independence from TUNKS, M. A. Diplomats or Defendants? Defi ning the Future of Head-of-State Immunity, Duke Law Journal, 2002, nr 52, pp. 659-660.

59 AC, Judgment in the Jordan Referral re Al-Bashir Appeal, ibidem, par. 145. 60 AC, Judgment in the Jordan Referral re Al-Bashir Appeal, ibidem, par. 117. 61 See AMBOS, K., Treatise on International Criminal Law , p. 413.

62 AC, Judgment in the Jordan Referral re Al-Bashir, ibidem par. 74 and Prosecutor’s Response to African Union and League of Arab States, paras 11-12. See also the Transcript of hearing, 13 September 2018, ICC-02/05- 01/09-T-7-ENG, p. 23, line 13 to p. 24, line 5. 63 Observations of prof. Lattanzi, AC, Judgment in the Jordan Referral re Al-Bashir Appeal, ibidem, par. 88.

64 AC, Judgment in the Jordan Referral re Al-Bashir Appeal, ibidem, par. 127. 65 AC, Judgment in the Jordan Referral re Al-Bashir Appeal, ibidem, par. 70.

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