CYIL vol. 13 (2022)

KATARÍNA ŠMIGOVÁ CYIL 13 ȍ2022Ȏ law. 44 In this context, however, the difference in horizontal interstate and vertical relations between the state and the international instance, which arose on the basis of the will of the states, was not adequately taken into account. The argument for or against the criminal prosecution of Al-Bashir, and the related application of the personal immunities of the Sudanese president, must be seen on several levels. Some of them, which are to be clarified, are also relevant for the possible criminal prosecution of Vladimir Putin. In the case of the Sudanese head of state, it must be remembered that Sudan is not a party to the Rome Statute. Moreover, it should not be forgotten that immunities under international law are an important part of international relations and international law. 45 Nevertheless, an equally important part of international relations and international law is protection of international peace and security, for which the UN Security Council bears primary responsibility. 46 Since Sudan, at the time of the adoption of the relevant resolution of the UN Security Council, was neither willing nor able to prosecute suspects of crimes under international law and at the same time did not accept the jurisdiction of the ICC, while the situation in Sudan represented a threat to international peace and security, the UN Security Council entered the scene and referred the situation in Sudan to the International Criminal Court. As noted earlier, it did so by adopting a resolution under Chapter VII of the UN Charter in which it decided that the Sudanese government shall cooperate fully with the ICC. 47 This would not be possible if the Rome Statute was not applicable in its entirety, as if Sudan was a party, albeit only to one situation. Some authors compare the situation of the triggering of the exercise of ICC jurisdiction by a resolution of the UN Security Council with its triggering by a State Party to the Rome Statute and argue that just as a State Party cannot withdraw the representative of a third-state of their immunity, neither can the UN Security Council extend the Court’s jurisdiction in this way. 48 In this context, however, it is rather necessary to point out that when the UN Security Council adopts a UN resolution according to the possibilities foreseen in the Rome Statute, it refers the situation to the Court, which is supposed to apply the Rome Statute as a whole, i.e., including its Article 27(2). This is not about expanding the powers of the UN Security Council, but about exercising the powers of the Court. The so-called the triggering mechanisms to exercise the Court’s jurisdiction is the referral from a State Party, 49 the referral of the situation by the UN Security Council or the action of the prosecutor ex proprio motu . 50 In addition, the UN Security Council is authorized to act not only according to the possibilities foreseen by the Rome Statute, but above all according to its founding treaty, i.e., the UN Charter. In case of the claim that Sudanese sovereignty was threatened because Sudan was as if forced to become a party to the Rome Statute, it is necessary to 44 SADAT, L. N., Heads of State and other governmental officials before the International Criminal Court: the uneasy revolution continues, In: DEGOUZMAN, M., OOSTERVELD, V. (eds.), The Edgar Companion to the International Criminal Court , Edward Elgar Publishing, 2020, pp. 96–127. 45 Arrest Warrant Case , op. cit ., para. 71. 46 UN Charter, Art. 24. 47 As for other states that are not parties to the Rome Statute, the resolution only urges them to cooperate fully, recognizing that they have no specific obligation under the Statute. However, they have the right to arrest Omar Al-Bashir. See Akande 2009, op. cit ., p. 342 et seq. 48 Schabas 2016, op. cit ., p. 604. 49 It also concerns other than a contracting state. See Art. 12(2) of the Rome Statute. 50 Art. 13 of the Rome Statute.

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