CYIL vol. 12 (2021)

CYIL 12 (2021) THE NUREMBERG PRINCIPLES AS THE BASIS OF INTERNATIONAL CRIMINAL Law these arrest warrants have already been frequently commented upon as indicated above, this Article will point out the basic arguments why the Rome Statute, including its art. 27, is applicable vis-à-vis the Sudanese situation. This argumentation is based on the nature of the UN Security Council resolution by which the Security Council referred the situation in Darfur, Sudan, to the ICC. 59 This referral by the Security Council was possible according to the Rome Statute and the Security Council as a main UN body realised its primary responsibility to maintain international peace and security conferred upon it by states by acting under Chapter VII of the UN Charter and adopting a resolution in which it decided that the Government of Sudan shall cooperate fully. This would not have been possible if the Rome Statute was not applicable as a whole, as if Sudan was a party to it, all be it for only one situation. If one claims that means that the Sudanese sovereignty is threatened because Sudan was forced to become a party, one has to be reminded of art. 103 60 of the UN Charter according to which there exists a rule of prevalence of obligations under the UN Charter over any other obligation, not only of a treaty character. 61 Moreover, even though there was no explicit waiver in the resolution, the full cooperation of Sudan had to include an immunity waiver when the arrest warrant was issued, otherwise the UN Security Council resolution would have not made any sense and the Security Council would have not served the purpose conferred upon it when the UN was established. 62 As for other states that are not parties to the Rome Statute, the resolution only urged them to cooperate fully while recognising that they had no obligation under the Statute. However, they were permitted to arrest Al-Bashir. 63 Current scholars and judiciary are still divided into two basic camps in relation to whether the ICCmay or may not prosecute a high official from a non-State party. Nevertheless, despite not having achieved a common understanding, it is undisputable that it was enough for the Nuremberg Tribunal to state the irrelevance of official capacity not only because of the nature of its establishing document but mainly because of the situation it was established to handle, namely the prosecution of top officials. The ICC as the pro futuro international judicial body established by international treaty has to consider other international legal norms to fulfil its aim, i.e. to prosecute perpetrators of the most serious crimes under international law. Nonparties in Early Years of the ICC”, in AJIL Unbound , 2018, vol. 112, pp. 172–176. As another example of inconsistency see also ICC, Appeals Chamber, The Prosecutor v. Omar Hassan Ahmad Al Bashir , Judgment, 6 May 2019, ICC-02/05-01/09-397-Corr, the decision that moved back to the reasoning of so-called Malawi decision. 59 UN SC Resolution 1593 (2005) from 31 March 2005. 60 This Article has to be taken into consideration also if there is a question whether States could have adopted a treaty authorising the SC to trigger the ICC jurisdiction. The SC could have done it anyway, if acted under Chapter VII of the UN Charter, nevertheless, if there was not such possibility foreseen in the Statute, the ICC would not have a possibility to proceed. 61 ÖBERG, M.D., The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ , in European Journal of International Law , 2005, vol. 16, p. 891. FROWEIN, J., KRISCH, N., Article 42, in SIMMA, B. (ed.), The Charter of the United Nations: A Commentary , 2nd ed., Oxford University Press, 2002, p. 729. 62 Compare the issue of necessity and implied powers in International Court of Justice, Reparation for Injuries Suffered in the Service of the United Nations , Advisory Opinion, 11 April 1949, I. C. J. Reports 1949, pp. 182–184. 63 AKANDE, 2009, p. 344 et seq., see supra note 57.

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