CYIL vol. 13 (2022)

KATARÍNA ŠMIGOVÁ CYIL 13 ȍ2022Ȏ by the necessity of these powers so that the UN is able to carry out its obligations given by its founding convention. 56 Similarly, the resolution of the UN Security Council necessarily implicitly contains the withdrawal of the immunity of the Sudanese president, otherwise it would not only be meaningless, but would be downright useless. At the same time, moreover, the adoption of a resolution of the UN Security Council, especially if it is adopted on the basis of Chapter VII of the UN Charter, is always a challenge and a space for negotiations by both lawyers and diplomats. It is necessary to point out that the resolutions of the UN Security Council are mostly written in more general language, but this resolution is specific in that the UN Security Council decided that nationals, current or former officials or personnel from a contributing state outside Sudan which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that contributing state for all alleged acts or omissions arising out of or related to operations in Sudan established or authorized by the Council or the African Union. 57 However, this paragraph also expressly excludes that this provision applies to Sudan. 58 This means that its members, current or former officials or employees of the state were not excluded from the Court’s jurisdiction; it was already obvious when this resolution was adopted that in order to avoid the procedure “fall to whom it falls”, it was necessary to explicitly exclude persons who could find themselves in the viewfinder of the Court. Therefore, it would be more appropriate to deal with a critical analysis of whether the UN Security Council had the power to adopt such an exclusionary provision, 59 not whether its resolution implicitly revoked the immunity of the head of state recognized by international customary law, which follows from the diction, purpose and essence, institutional set-up, and functioning of both institutions, although according to some statements too teleologically. 60 A special challenge and space for diplomats also concerns the created situation. Since Sudan did not fulfil its obligation according to the resolution of the UN Security Council, and non-Member States of the ICC (even Member States) did not fulfil their obligations arising from their international obligations, the alarming question was what to do with the situation. In relation to court proceedings the Court itself must decide. However, since it is an international judicial instance that does not have its own executive branches, the execution of each of its decisions depends on the cooperation of states. 61 It was at zero level in relation to the Sudanese situation. Under the influence of the given situation, some African states even announced their withdrawal from the Rome Statute. 62 Such an approach not only fails to fulfil the goal of the Statute, but also reduces the authority of international actors, 56 Ibid . 57 Except when this jurisdiction has been expressly waived by the relevant state. See res UN Security Council 1593 (2005), op. para. 6. 58 Ibid . 59 International customary law allows states to exercise their criminal jurisdiction in case of relevant criminal law titles (e.g., territorial or personal). 60 Compare Svaček, op. cit ., p. 185. 61 The issue of states’ cooperation with the ICC is one of the biggest challenges of the ICC’s functioning system. See e.g., KAUL, H. P., The International Criminal Court: Current Challenges and Perspectives, In: 6 Washington University Global Studies Law Review 2007, p. 579 et seq. 62 In case of the Philippines, the process of withdrawing from the Rome Statute has already been completed, in case of e.g., South Africa, the government’s intention to withdraw from the Rome Statute was overturned by the decision of the Constitutional Court of this country.

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