CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ

THE ICC ARREST WARRANT FOR THE SUDANESE PRESIDENT…

7. Treaty-based immunities of the AU Member States In 1965, the Organization of African Unity adopted a General Convention on the Privileges and Immunities of the Organization of African Unity, whose successor is the African Union. Art. V para 1 says that Representatives of Member States … shall, while exercising their functions and during their travel to and from the place of meetings, be accorded the following immunities: (a) immunity from personal arrest or detention … The Convention has been ratified by 37 Member States of the AU. The other 17 Member States are not States Parties to the Convention. Article 98 para 2 of the Rome Statute states that the Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender . However, this specific provision relates to so-called non-surrender agreements. Because the purpose of the Convention on Privileges and Immunities is different, it cannot be considered a non-surrender agreement. An important question arises with regard to the immunities: whether the Convention prevails, or the Rome Statute? One may argue in favour of the Convention because it governs AU summits and as such, it may be considered to be lex specialis. However, it can also be argued that the later Rome Statute prevails as lex posterior . 13 Furthermore, the waiver of immunities according to Art. 27 of the Rome Statute can also prevail as lex specialis , because it governs a very specific topic of international criminal responsibility with regard to crimes under international law. Regarding the circumstances given, the latter interpretation which cumulates two legal principles is preferable. Therefore, not only the AU Member States who are not Parties to the Convention on the Privileges and Immunities, but also the Member States who are Parties to it – and at the same time are States Parties to the Rome Statute – are under a legal obligation to arrest the Sudanese President once he enters their territory, no matter if the purpose of the visit is private or official. 8. South Africa’s relationship between domestic and international law There are two different theories describing the relationship between international and national law – monism and dualism. In monistic states international law may be directly applied within national law. In dualistic states, international law needs to be transformed into national law. Proper enacting of international law in dualistic states is therefore crucial for its enforceability on the ground.

13 As the Convention was concluded in 1965 and the Rome Statue in 1998, the vast majority of states ratified first the Convention and second the Rome Statute.

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