CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ HEAD OF STATE IMMUNITY IN TRIANGULAR RELATIONS … Additionally the above-described judgment of the AC tightened the relationship between the ICC and the SC. The AC stated that since Article 13(b) of the Statute allows the SC to initiate proceedings before the ICC, in consequence the ICC becomes a “UN Security Council tool to maintain or restore international peace and security” (it even went so far as to state that this provision “puts the ICC at the disposal of the Security Council”). It pointed out that the appointing of the Security Council as one of the entities entitled to refer a case to the ICC “obviates the need for the UN SC to create new ad hoc tribunals for this purpose.” 68 The relationship between the ICC and the SC was one of the main subjects of controversy among the states’ representatives participating in the Rome Conference that led to the adoption of the Rome Statute. 69 States were accepting of the idea that SC could have some powers within the Statute, however its role and the way it could exercise such powers were questioned. 70 The judgment of the AC certainly does nothing to minimise these controversies. As a consequence of the judgment, one can argue that the relationship between the SC and the ICC has become too tight. In this decision the ICC treated the SC Resolution as a source of its powers. In a way this was natural, as in accordance with Art. 12 (3) of the Statute the situation was referred to the ICC by way of a SC resolution. The ICC however went further – it did not treat the resolution as an element of a trigger mechanism, but treated the resolution as the basis for a competence on its part to force the states to cooperate – and in a scope that the ICC perceives as necessary in a given case. This power does not stem from Article 21 of the Statute, which enumerates the sources of applicable law before the Court. The Appeals Chamber even conducted its own interpretation of the SC Resolution in its decision. One may certainly ask whether the AC’s interpretation was in accordance with the intent of the authors of the SC resolution. This is especially the case given that the resolution does not mention the question of abolishing immunities. It simply refers to an obligation on the part of Sudan to comply with any specific request made by the Court or the Prosecutor. The SC resolution can hardly be equated with the imposition of the whole regime of cooperation provided for by the Statute for States Parties . It is doubtful whether such was the intent of authors of the Resolution. If they had such an intent they would have, or should have, literally expressed it. The discussed decision places on Sudan the “full range of obligations of cooperation, including the obligation of arrest and surrender in Article 89(1), undertaken in accordance with Part 9 of the Statute by States Parties.” 71 The judges’ conclusion was that “bas[ed] also on the records of the debate on the resolution”, notwithstanding that immunity was very much on the mind of the Security Council at all material times the SC did not wish to extend it to officials of the Government of Sudan, beyond the limited extent that they had extended such immunity to officials from a contributing State ‘outside Sudan’ which is not a party to the Rome Statute. 72 However, in the literature following the PTC decision, other opinions were expressed – for example that “the drafting history of this resolution leaves much room 68 AC, Judgment in the Jordan Referral re Al-Bashir Appeal, ibidem, par. 135. 69 YAÑEZ-BARNUEVO J. A., ESCOBAR HERNÁNDEZ, C., The ICC and the UN – a Complex and Vital Relationship , in: F. LATTANZI, W. SCHABAS (eds.), Essays on the Rome Statute of the International Criminal Court , vol. 2, Il Sirente, Ripa di Fagnano Alto 2003, p. 51. 70 BERGSMO, M., PEJIC, J., ZHU, D., Article 16 , in: TRIFFTERER, O., AMBOS, K. (eds.), The Rome Statute of the International Criminal Court. A commentary , C.H. Beck, Hart, Nomos: 2016, pp. 770-771. 71 Observations of prof. O’Keefe, AC, Judgment in the Jordan Referral re Al-Bashir Appeal, ibidem, par. 85. 72 AC, Judgment in the Jordan Referral re Al-Bashir Appeal, ibidem, par. 301.

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