The issue of immunities before the ICC is indeed very complex – especially the problems with arts. 27 and 98. It will be interesting to see debate on this issue at the review conference, and whether a renovation of these articles will be considered.

You raise a very good question. In my view the purpose of Art. 98(1) is precisely to give effect to the principles that non-parties are not bound by the ICC Statute and that the Statute cannot deprive non-party States of rights they ordinarily possess. Article 98(1) is not redundant, even if one takes the view, as I do, that in the case of a Security Council referral of a situation relating to a non-party, the non party is in a position analogous to a State Party and therefore, Article 98(1) is inapplicable. In cases of referrals by States or propio motu prosecutions by the Prosecutor, Art. 98(1) serves the purpose of directing the Court not to place State parties in a position where they owe competing obligations to the Court (to surrender) and to the non-State party possessing immunity(not to arrest and surrender). The provision is necessary because it acts as a qualification on Article 27.

I agree with the position that you take in your recent article (and that you have taken in others) that international immunities are not rendered irrelevant before the ICC by virtue of the purportedly ‘international’ character of the Court. However, I have some comments in relation to your argument that Sudan should be treated as analogous to an ICC state party. You suggest that this is the case because in its decision the Pre-Trial Chamber understood the Security Council referral to have accepted that the exercise of jurisdiction must occur in accordance with the entirety of the Rome Statute. Because (as is widely accepted in the attendant literature) Article 98(1) will only apply in the case of requests in relation to non states parties, its application can only arise in the case of a Security Council referral under Article 13(b) of the Rome Statute. The only other possible situation in which a situation involving a non state party could potentially come before the Court would be in the case of a referral by a state party, or if the prosecutor exercises his propio motu powers and initiates an investigation. In both of these scenarios the Vienna Convention on the Law of Treaties states that the Rome Statute cannot be applied to the non state party because they have not consented to the provisions of the treaty. Therefore, as far as I understand, the only way in which the provisions of the Rome Statute can be applied to a non state party is through the mechanism of a Security Council referral, as by acting under Chapter VII of the UN Charter the Security Council can effectively assign such treaty responsibilities to a non party. Thus, the only time Article 98(1) would be relevant would also be in the case of a Security Council referral to the ICC. If a Security Council referral places the non state party in a position analogous to a state party thus making Article 98(1) inapplicable, it seems that Article 98(1) is rendered useless in all cases. If we accept the maxim of effectiveness in treaty interpretation (ut ret magis valeat quam pereat), provisions of a treaty must be interpreted in such as way as to render them operative. Therefore, if Security Council Resolution 1593 places Sudan in a position analogous to a state party, would it not cause Article 98(1) to be devoid of all relevance?

I would be interested to hear your thoughts on this.

Phillip.