CYIL vol. 10 (2019)

HANNA KUCZYŃSKA – KAROLINA WIERCZYŃSKA CYIL 10 ȍ2019Ȏ each other” – which underlaid the rule of foreign immunity at the horizontal level – is not compromised by proceedings before an international court 66 . Mr. Kress rightfully pointed out in his observations as amici curiae that “for the purpose of proceedings before the Court […] it extends to the triangular legal relationship of vertical cooperation between the Court, a requested State Party and the non-State Party of which the person sought is the incumbent Head of State.” 67 Indeed, the application of the Statute in a vertical relation (ICC – state relation) “affected” the legal situation of a third state that is not a party to the proceedings (state – state relation). This essence of this triangular relationship is that the exercise of the obligations stemming from the Statute on one state may affect the situation of another state. Precisely for this reason it cannot reasonably be claimed that this decision offends the pacta tertiis rule – the obligation of Jordan was its own obligation towards the ICC. According to Article 34 of the Vienna Convention “A treaty does not create either obligations or rights for a third State without its consent.” However, it is clear from the reasoning of the decision that the obligation of Jordan does not stem from any obligation on the part of Sudan towards the ICC, but that Jordan’s obligation is its own. The duty to arrest and surrender Al-Bashir rests on Jordan as a result of its obligations as a State Party to the Rome Statute. This approach could be quite confusing for the State Parties – in this case Jordan claimed that Al-Bashir is protected by immunity (both as a Head of State of a non- State Party and as a delegate at the Arab League Summit). Conclusions When interpreting this judgment, one should take into account the consequences of the Court’s decision. The main problem with the line of reasoning adopted by AC is its conclusion about the effect of the SC resolution. While the SC passed a resolution demanding “full cooperation”, the AC drew the most far-reaching conclusions from this. The questionable deficiency, or flaw, in the Court’s judgment lies in the beginning of the chain of reasoning it adopted – namely in the meaning given to the wording of the SC resolution. The SC resolution referring the situation in Darfur to the ICC is one of the most important elements of the ICC judgment, and the power of the SC to initiate proceedings before the ICC becomes an important argument in the discussion about immunities in international criminal law. On one hand the argument is that such a position taken by the Court – providing a very broad interpretation of the SC resolution – may lead to the better effectiveness of the Court and extend its powers to fight against impunity. On the other hand, the ICC opened itself up to criticism, especially by non-State Parties. They will argue that such a decision constitutes a threat to states’ sovereignty. Leaving aside the question of sovereignty, one can ask whether in the absence of an SC referral the ICC could ask any State Party to “lend assistance” in the arrest or surrender of a Head of State (or even a former one) of a non-State Party, as this could be one conclusion derived from the judgment. Subsequently this raises the question of broadening the Court’s jurisdiction and the potential violation of the Pacta tertiis nec nocent nec prosunt principle.

66 Concurring opinion to the AC Judgment in the Jordan Referral re Al-Bashir Appeal, ibidem, par. 435. 67 AC, Judgment in the Jordan Referral re Al-Bashir Appeal, ibidem, par. 89.

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