CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ IS IT POSSIBLE TO PROSECUTE THE HEAD OF STATE? In connection with Article 27 of the Rome statute, it is also necessary to refer to Article 98 of the Rome Statute, which deals with cooperation in connection with the waiver of immunity. Article 27 thus specifies the waiver of immunity in case of State Parties and Article 98 regulates cooperation in connection with waiver of immunity in case of the third-states (whether it has to be requested or the relevant state has waived it). In principle, this latter article regulates the obligation of the Court to focus its proceedings on cooperation with third-states or sending states whose consent to waive immunity or surrender a person is necessary so that the requested Contracting Parties do not have to act contrary to their obligations under international law. Article 27 precisely in connection with Article 98 of the Rome statute is an often commented article in connection with the criminal arrest warrant(s) against Omar Al-Bashir, who was the president of Sudan at the decisive time. 37 Although Sudan is not a party to the Rome Statute and has not accepted the jurisdiction of the ICC, it was the UN Security Council that initiated the Court’s jurisdiction in relation to the situation in Sudan by adopting a resolution based on Chapter VII of the UN Charter. 38 It must be recognized that the criminal arrest warrants issued by the pre-trial chambers of the ICC are not consistent as for their arguments, 39 but their mutual inconsistency is not an acceptable argument in relation to the truth of individual arguments. Individual arrest warrants were extensively commented on; comments pointed to the positive legal insufficiency of references to the preamble of the Rome Statute or the need to distinguish between international custom and international treaty, as well as the principle of non-creation of obligations under international treaty law in the case of third-states. 40 Other comments related to the possibility of the UN Security Council to implicitly remove the immunity of the head of state and to interfere with the application of customary international rules. 41 The inconsistency and controversy of the ICC’s proceedings in the case of Al-Bashir is best demonstrated in the decision of the ICC Appeals Chamber on the cooperation of Jordan. Despite a number of suggestions from both academics and state representatives, the ICC Appeals Chamber upheld the decision of Pre Trial Chamber II, according to which Jordan, as a party to the Rome Statute, failed to comply with its obligations to cooperate with the Court by failing to arrest and surrender Al-Bashir to the Court while he was in the territory Jordan as head of state during the Arab League Summit on 29 March 2017. 42 What was controversial was not so much the decision itself, but rather its justification, as the Appeals Chamber pointed to international customary law, which, according to it, does not regulate the application of the concept of head of state immunities against the jurisdiction of an international judicial body; 43 indeed, on the contrary, even according to the opinion of some academics, Article 27 is a norm of international customary 37 The following lines relate to the situation that was dealt with when Omar Al-Bashir was the President of Sudan and is relevant to any similar case brought to the Court by the UN Security Council under Chapter VII of the UN Charter, if it is a head of state that is not a party of the Rome Statute. 38 Res UN Security Council 1593 (2005) adopted 31 March 2005. 39 Compare SVAČEK, O., Mezinárodní trestní soud [International Criminal Court] (2005–2017) , C. H. Beck 2017, p. 175 et seq. 40 Art. 34 of the Vienna Convention on the Law of Treaties. Compare GAETA, P., Does President Al-Bashir Enjoy Immunity from Arrest? In: 7 (2) Journal of International Criminal Justice 2009, pp. 315–332. 41 In this context, see also AKANDE, D., The Legal Nature of Security Council Referrals to the ICC and its Impact on Al-Bashir’s Immunities, In: 7 (2) Journal of International Criminal Justice 2009, pp. 333-352. 42 ICC, Prosecutor v. Al Bashir , situation in Darfur, Sudan, ICC-02/05-01/09-397-Corr, Appeals Chamber, 6 May 2019. 43 Ibid .

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