CYIL vol. 7 (2016)

337

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

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.

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.