Who Enforces an Arrest Warrant of the International Criminal Court?

Abstract

Abstract Though there is an abundance of literature on the relationship between the jurisdiction of the International Criminal Court ('ICC') and the immunities of non-state parties to the ICC Statute, the arrest process under Part 9 of the ICC Statute has not yet been addressed from the perspective of international organizations law. Yet, the ICC is certainly an international organization, and its arrest process is comparable to other organizations’ activities, e.g. the United Nations Security Council’s smart sanctions process. It is therefore argued that a clarification of the legal relationship between the cooperating state and the ICC under the general law of international organization would be a logical premise for further discussion of the relationship between the ICC’s jurisdiction and the immunities of non-state parties to the ICC Statute. The importance of this kind of analysis has become apparent as a consequence of the employment of the Surrogation of Jurisdiction theory by the Appeals Chamber of the ICC in its Al Bashir judgment. This theory formed an essential part of the judgment. An assessment of this theory from the perspective of the law of international organizations shows both the potential and the limitation of the theory. It will, thus, give us a more comprehensive understanding of the theory’s legal implications in the context of the enforcement of ICC arrest warrants against organs of non-state parties to the Statute who enjoy immunity under customary international law.