By Tom Maliti
Interest in next week’s Appeals Chamber decision on whether Jordan should have acted on the arrest warrants for former Sudanese President Omar Hassan Ahmad al-Bashir will be focused on how the chamber will interpret the issue of head of state immunity.
Also significant is how the Appeals Chamber chose to conduct hearings into Jordan’s appeal against a December 11, 2017 decision of Pre-Trial Chamber II to refer Jordan to members of the International Criminal Court, formally known as the Assembly of State Parties, for not arresting al-Bashir when he visited the country in early 2017. Pre-Trial Chamber II also referred Jordan to the United Nations Security Council, whose March 2005 resolution triggered the ICC’s investigation into the conflict in the Sudanese region of Darfur.
Monday’s decision will be the first time the ICC’s Appeals Chamber will be addressing the issue of head of state immunity. It is an issue that different panels of the pre-trial chamber have made numerous decisions on, some of them contradictory.
The hearings the Appeals Chamber held in September last year on Jordan’s March 12, 2018 appeal showed a different approach to managing the politics that surrounded the matter of whether al-Bashir, when he was a sitting head of state, could be arrested on the basis of ICC warrants.
The usual approach at the ICC when a matter is before a chamber is for the chamber to receive submissions from the parties directly connected to the proceedings at hand. A chamber may also consider whether to receive submissions from individuals or organizations who may have an interest in the matter. This happens when the individuals or organizations concerned apply to be allowed to make such submissions.
The ICC took this approach when the African Union wrote a letter in September 2013 asking the court to defer the trial of Kenya’s President Uhuru Muigai Kenyatta. The Presidency of the ICC responded by stating that the ICC could not address such an issue based on a letter. The Presidency advised the African Union to use legal channels to address the matter.
In the case of last September’s hearings, the Appeals Chamber deliberately reached out to parties other than Jordan and the Office of the Prosecutor, who were directly connected to the appeal Jordan had filed. The Appeals Chamber invited several international and regional organizations to make submissions as friends of the court on the matter. Included in that invitation was the African Union, the League of Arab States, and the UN.
“The Jordan Referral re al-Bashir Appeal raises legal issues that may have implications beyond the present case,” the Appeals Chamber said in its March 29, 2018 order inviting submissions as friends of the court. The order also invited ICC members and international law professors to indicate their interest in making submissions.
“In these circumstances, the Appeals Chamber considers it desirable to invite observations from international organizations, State Parties and Professors of International Law on these issues to assist the Appeals Chamber in its determination,” continued the March 29, 2018 order.
The case against al-Bashir and the issue of head of state immunity have been the subject of multiple resolutions at the African Union for the past nine years. This was before he was forced out of office on April 11 this year after more than three months of a non-violent popular revolt against him.
One of the first times African Union leaders discussed the case against al-Bashir was in February 2009. This was before the first arrest warrant against him was issued. During that meeting, African Union leaders mentioned the possibility of an arrest warrant being issued against al-Bashir.
They resolved in February 2009 to ask the United Nations Security Council to invoke a provision in the ICC’s founding law, the Rome Statute, which allows a case to be deferred for a year. African Union leaders argued initiating a case against al-Bashir at that time would destabilise Sudan. The first ICC arrest warrant against al-Bashir was issued the following month in March 2009.
This, and the ICC’s second arrest warrant against al-Bashir issued in July 2010, ensured the subject of the then Sudanese president and the ICC was a regular item at the African Union’s biannual summits. The request to the Security Council for a deferral was repeated, but the Security Council never formally discussed the issue of deferring the case against al-Bashir. It seems the matter never went beyond the informal sessions, which members of the Security Council hold to gauge whether a proposed resolution would receive enough support to justify making a formal draft and presenting it at an official session of the council.
Away from the diplomatic back and forth, criticism of the ICC grew, including the fact that all cases before it involved Africans. The nuances of how investigations and prosecutions are initiated at the world’s permanent criminal court got lost in the fact that it was only Africans standing on trial at the ICC.
It did not help that the Security Council did not formally address the issue of deferring the case against al-Bashir. The Security Council’s failure to address the matter cemented the view that the ICC had an Africa bias.
The criticism of the ICC was amplified when Kenyatta and William Samoei Ruto announced they were running as a ticket for the presidency of Kenya in 2012. By that time, charges against them had been confirmed at the ICC and preliminary proceedings for their trials had begun. Kenyatta and Ruto were declared the winners in the March 2013 election and once they were sworn into office, Kenya began a diplomatic offensive challenging the cases against Kenyatta and Ruto arguing that as President and Deputy President they had a country to run and could not afford to attend court cases in a foreign land.
The African Union also got involved in this diplomatic offensive, changing tact by writing to the ICC to ask for the case against Kenyatta to be deferred, arguing that he could not run a country while attending court cases. This was in September 2013 when the Appeals Chamber was receiving submissions on the issue of whether Ruto, being Deputy President of Kenya, could be allowed to be absent from his trial given the Rome Statute does not allow anyone to be tried in absentia.
Judge Cuno Tarfusser, who was the court’s second vice-president at the time, responded on behalf of the ICC presidency advising the African Union that the court could not make a decision based on a letter, and the best way to address the issue was through legal channels. The African Union did not pursue the legal channels suggested by Judge Tarfusser, but in the case that was before the Appeals Chamber at the time, five African countries (Burundi, Eritrea, Rwanda, Tanzania, and Uganda) made submissions under the friends of the court provisions of the Rome Statute. This was after the five countries had applied to the Appeals Chamber to be allowed to do so.
Last year, the Appeals Chamber decided not to wait to see whether any of the organizations that would be or have been affected by the matter of Jordan’s appeal would be applying to make submissions to it. Instead, the Appeals Chamber specifically invited them. The African Union accepted the invitation, made its submission, and was represented in the September hearings by its Legal Counsel Namira Negm and external legal advisors Dire Tladi and Charles Jalloh.
During the September 12 hearing, Negm described the Appeals Chamber’s invitation to the African Union as “a more constructive approach between the African Union and the ICC.”
The League of Arab States also accepted the invitation, made its submission, and was represented in the September hearings by its Permanent Observer to the United Nations, Maged Abdelfatah Abdelaziz. The United Nations did not make any submissions.
The Appeals Chamber also invited Sudan to make submissions, but Sudan did not participate. After the September hearings, the Appeals Chamber again invited Sudan to make submissions, but the country did not respond to that invitation.
Whether the Appeals Chamber’s new approach to managing politically sensitive cases before it will diffuse the criticism that the ICC is biased against Africans is debatable. What is clear is the African Union has been listened to during a formal hearing at the ICC, something the organization is still waiting for at the Security Council. This may count for something in future.
This article was first published on the International Justice Monitor website.