CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ IS IT POSSIBLE TO PROSECUTE THE HEAD OF STATE? remind Article103 of the Un Charter, 51 which lays down the rule of priority of obligations arising from the UN Charter over any other obligation. Although the wording of Article 103 of the UN Charter speaks of a treaty obligation, the accepted interpretation of this article points to the essence of the relevant obligations. 52 In connection with the argument regarding the fact that a different interpretation of the UN Security Council resolution than that the resolution also contains an implicit withdrawal of the immunities of the Sudanese president would make no sense, it is also necessary to provide other circumstances. When the UN Security Council adopted resolutions establishing the ad hoc judicial tribunals, one of the first objections these tribunals had to deal with was the objection regarding their establishment. Already in the first ICTY decision, it pointed out that the UN Security Council, in case of a threat to international peace and security, has the authority to take any measure that will re-establish or secure them. 53 Therefore, it would be easy to answer the question whether the UN Security Council, as a political body, has the authority to adopt a resolution that includes unprecedented measures regarding the application of customary international law. The question remains, therefore, whether the UN Security Council implicitly revoked the personal immunities of the Sudanese president in its resolution, or whether this was an obligation of Sudan as part of the obligation to fully cooperate with the Court, according to the resolution. In this context, it is necessary to point out again that the UNSecurity Council adopted the resolution at a time when Sudanwas neither willing nor able to prosecute its president. Was it necessary to explicitly mention the withdrawal in the resolution? It would probably be more efficient. In this context, however, it should be noted that the UN Security Council referred the situation in Sudan as such, not specific cases, to the International Criminal Court in accordance with the Rome Statute. These are already within the full competence of the independent judicial body itself. Otherwise, it would have been suggested to it that the prosecution should directly concern the Sudanese president what would break the presumption of innocence principle. It is true that with regard to the parties to the Statute, the Court is not as universal as the UN, but through the connection with the UN Security Council, it is all the more necessary to analyse the matter as the International Court of Justice did in case of its advisory opinion on reparation for injuries suffered in the service of the United Nations. Even though the United Nations was not explicitly recognized in its Charter as an international legal entity or capable of making legal claims, 54 the International Court of Justice pointed out the necessity to derive it from implicit powers. 55 It justified them 51 This article must also be considered in case of the question whether states could adopt an international treaty that allows the UN Security Council to prompt the ICC to exercise its jurisdiction. Even in the absence of such a possibility in the Rome Statute, the UN Security Council could adopt the relevant resolution if it acted on the basis of Chapter VII of the UN Charter, but in that case the ICC would not have the possibility to act further according to the Rome Statute, within which it performs its function. 52 ÖBERG, M. D., The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ, In: 16 European Journal of International Law 2005, p. 891. PAULUS, A., LEISS, J. R., Article 103, In: SIMMA, B. (ed.), The Charter of the United Nations: A Commentary , 3 rd ed., Oxford University Press, 2012, p. 2133. 53 ICTY, Prosecutor v. Tadić , IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2 October 1995, para. 32 et seq. 54 Since then, states prefer to explicitly state the international law subjectivity of international organizations in their constitutive documents. See e.g., Art. 4 of the Rome Statute. 55 International Court of Justice, Reparation for Injuries Suffered in the Service of the United Nations , advisory opinion, 11 April 1949, p. 182 et seq.

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