CYIL vol. 10 (2019)

HANNA KUCZYŃSKA – KAROLINA WIERCZYŃSKA CYIL 10 ȍ2019Ȏ for interpretation regarding the ‘implicit waiver of the immunity’ of President Al-Bashir by the UN Security Council.” 73 On one hand, if it were not for the SC resolution there would be no basis for demanding any cooperation from Sudan. On the other hand it makes the Court dependent on the decisions of a political body, acting in line with the needs and plans of the most powerful states – most of which are not a State Party to the Statute. This may be seen as prejudicial to the integrity of the Court as a court of law, which is bound to apply the Statute independently of the political intervention of the UN SC. It also implies that in triggering the jurisdiction of the Court the UN SC could modify the legal framework of the Statute at its discretion. 74 This is a question of the independence of the ICC and one cannot project where such an interdependence might lead. While in this case the “help” of the Council was certainly welcomed, in consequence the powers allocated to the SC are too wide, and can act in two directions – both widening the competence of the ICC and/or narrowing it. For example, the SC can use its powers to ban the jurisdiction of the ICC. Based on Article 16 of the Statute in Resolution 1422 (and later in resolution 1497) the Security Council requested that no investigation was commenced or proceeded with in relation to actions undertaken by citizens of a state not being a party to the Statute under the missions established or authorised by the UN since the ICC was established – unless the SC decides otherwise. 75 Until Omar Al-Bashir is arrested and transferred to the seat of the Court in The Hague, the case will remain in the pre-trial stage. The ICC does not try individuals unless they are present in the courtroom. Since 12th July 2010 – the time of issuing the second arrest warrant for Al-Bashir until 20th April 2019 (when he was removed from the post of the president) 76 The arrest warrant was not executed by any state where the president travelled, despite the fact that the ICC had informed the Security Council and the Assembly of the States Parties to the Rome Statute about Al-Bashir’s presence in the territories of numerous states: Kenya, Chad, Republic of Central Africa, Djibouti, Malawi, Nigeria, Congo, Ethiopia, Sudan, South Africa, Uganda, and demanded cooperation from these states in the arrest and surrender of Al-Bashir. It also issued decisions pursuant to Article 87(7) of the Rome Statute on the refusal to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Al-Bashir against Chad in 2013, and the Republic of Djibouti and Uganda in 2016. These states refused to arrest and surrender the President of Sudan, arguing that Article 98(1) of the Statute precludes the arrest and surrender to the Court of Al-Bashir since he is entitled to immunity as a serving Head of State. Most of them also pointed out that, as members of the African Union, they must respect the decision of the African Union directing its member states, in accordance with Article 98 of the Statute, not to cooperate 73 See: KITTICHAISAREE, K., The Obligation to Extradite or Prosecute , OUP: 2018, pp. 293-295, who argues that: “China and Russia, two of the five permanent members of the UN Security Council with the veto power, are firmly of the view that the ‘troika’ of Heads of State, Heads of Government, and Ministers of Foreign Affairs have absolute immunity ratione personae. Arguably, therefore, it would be unlikely for these two permanent members of the UN Security Council to have adopted a Security Council resolution with the intent to negate the personal immunity under customary international law of Sudan’s President Al-Bashir in disregard of Article 98 of the ICC Statute.” 74 Observations of prof. Gaeta, AC, Judgment in the Jordan Referral re Al-Bashir Appeal, ibidem, par. 90. 75 Resolution UN Doc. S/RES/1422 of 2002, at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N02/477/61/ PDF/N0247761.pdf?OpenElement (1. 9. 2014). 76 His travels since the issuance of the ICC arrest warrant on: http://bashirwatch.org/ [Accessed 24. 05. 2019].

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