CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ HEAD OF STATE IMMUNITY IN TRIANGULAR RELATIONS … with the Court’s request for the arrest and surrender of Al-Bashir to the Court. 77 The present decision should be viewed in the light of the nine-year long efforts of the ICC to prove the effectiveness of its mandate. Is now, that Al-Bashir is in custody, his surrender to the Court more likely? It is clear that the Court was fully conscious of the reality that – in the absence of international cooperation – the Court could not succeed in bringing Al-Bashir before it. It thus decided to use the SC resolution as a “token”, which the Council interpreted as a direct obligation to cooperate fully with the Court, and went on to interpret the scope of this obligation from the perspective of its present needs. It seems that the interpretation of the resolution was conducted according to the effectiveness principle: the Appeals Chamber concluded that Article 27(2) of the Statute should be considered to be relevant not only to the adjudicatory jurisdiction of the Court, but also “to the Court’s ‘enforcement jurisdiction’ vis-à-vis States Parties to the Rome Statute.” According to the ICC Appeals Chamber it was clear that the purpose of Article 27(2) is to ensure that immunities do not stand in the way of the Court’s exercise of its jurisdiction, which must be effective. If Article 27(2) were to be read narrowly to encompass only the Court’s adjudicatory jurisdiction, it could lead to a situation whereby no Head of State – even of a State Party – could ever be effectively arrested and surrendered if the concerned State did not expressly waive this immunity. “To read the Statute in this way would be contrary to the principle of effectiveness” – concluded the AC. What the Court meant by this principle was explained in the concurring opinion, wherein the Judges stated that: “The principle of effective interpretation has correctly been defined as ‘a principle which gives preference to that interpretation of a treaty which best promotes its major purposes.’” 78 [and] “The principle of effectiveness is engaged in the present appeal by the fact that the cooperation of States is, in the nature of things, critical to the effectiveness of international law and, in particular, the effective implementation of legitimate measures that arise from its processes. This is the case not only for the ICC, but also for the UN especially in respect of measures that the Security Council decides upon, in order to maintain international peace and security, using Chapter VII powers.” On one hand – this conclusion is in compliance with Article 31 of the Vienna Convention and the obligation to interpret a treaty in good faith and in the context and in the light of the provisions’ object and purpose. “In this regard, if the object and purpose of a treaty like the Rome Statute is to ensure against impunity, any provision that denies immunity is more consonant with the object and purpose of the treaty than any provision that tends to recognise immunity.” 79 On the other hand, the “principle of effectiveness” opens a gateway for using practical reasons as an excuse to interpret freely provisions that were planned to establish certain guarantees and balance them against the goals of the Court.

77 See: https://www.icc-cpi.int/darfur/albashir and the decisions accessible from this webpage (accessed 24. 05. 2019). 78 Par. 419, basing on: See MCDOUGAL, Myers and GARDNER, Richard, ‘The Veto and the Charter: An Interpretation for Survival’ (1951) 60 Yale L J 258, at p. 261. 79 Concurring opinion AC, Judgment in the Jordan Referral re Al-Bashir Appeal, ibidem, par. 391.

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