By Tom Maliti
In a unanimous judgement made on Monday the Appeals Chamber has found Jordan did not fulfill its obligations as a member of the International Criminal Court (ICC) when it did not arrest former Sudanese President Omar Hassan Ahmad al-Bashir when he was in the country in March 2017.
However, the Appeals Chamber was divided on whether this should lead to Jordan being referred to the rest of the ICC membership, or the Assembly of State Parties (ASP) as it is formally known, or the United Nations Security Council, for not cooperating with the ICC. In a majority judgement on this issue, the Appeals Chamber decided not to refer Jordan to ASP or the Security Council.
The chamber decided Jordan did not fulfill its obligations when it did not arrest al-Bashir while he was in the country two years ago. The five judge panel unanimously determined that any immunities al-Bashir enjoyed as a head of state did not prevent the ICC from exercising its jurisdiction.
The ICC has issued two arrest warrants for al-Bashir for his alleged role in war crimes, crimes against humanity, and genocide committed in the Sudanese region of Darfur. The warrant for his arrest on allegations of crimes against humanity and war crimes was issued in March 2009. The one for his arrest on allegations of genocide was issued in July 2010. The ICC took up the Darfur case after the Security Council passed Resolution 1593 in March 2005 referring the case to the court.
Pre-Trial Chamber II determined in December 2017 that Jordan should be referred to the ASP and Security Council for not cooperating with the ICC after Jordan failed to arrest al-Bashir while he was in Jordan attending a summit of the League of Arab States. Jordan filed an appeal to that decision in March 2018 in which Jordan raised three grounds of appeal.
One of Jordan’s grounds of appeal was that al-Bashir could not be arrested because he was attending the League of Arab States as a head of state. While reading a summary of the judgement, Presiding Judge Chile Eboe-Osuji said the Appeals Chamber chose to address the issue of whether customary international law granted al-Bashir immunity from arrest. He said the Appeals Chamber recognized that immunities under customary international law applied in certain circumstances, such as preventing a head of state being arrested under another state’s jurisdiction.
However, the Appeals Chamber “has not found that customary international law preserves any immunity found that afforded Jordan an excuse to decline the request of the Court for the arrest and surrender of Mr Al-Bashir,” said Judge Eboe-Osuji.
He said the chamber was “fully satisfied” with the decisions of Pre-Trial Chamber I in its decision on Malawi and the Appeals Chamber of the Special Court for Sierra Leone in the case of Charles Taylor that “adequately and correctly confirmed the absence of a rule of customary international law recognising Head of State immunity before international courts in the exercise of proper jurisdiction.”
The majority of the Appeals Chamber – Judges Eboe-Osuji, Howard Morrison, and Piotr Hofmanski – determined that, however, Jordan should not be referred to the ASP and the Security Council for not arresting al-Bashir. The judges found that Jordan had initiated consultations, but Pre-Trial Chamber II failed to take up the consultations. They found that the note verbale Jordan sent the ICC in which Jordan explained why it would not be able to arrest al-Bashir when he arrived in Jordan for the League of Arab States summit, “amounted to a request for consultations with the court.”
Judges Luz del Carmen Ibáñez Carranza and Sophie Balungi Bossa dissented and said they agreed with Pre-Trial Chamber II’s decision to refer Jordan to the ASP and the Security Council for non-cooperation.
“It (the referral) is not punitive, rather it is a call of action, not only for Jordan but also for the ASP … therefore enabling the realization of the high values enshrined in the Rome Statute,” said Judge Eboe-Osuji, reading a summary of the dissenting opinion.
The Appeals Chamber’s judgement and the joint concurring opinion of Judges Eboe-Osuji, Bossa, Hofmanski, and Morrison are available here. The dissenting opinion of Judges Bossa and Ibanez will be available later.
Al-Bashir is no longer Sudan’s president. He was toppled on April 11 this year following more than three months of countrywide non-violent protests against him. He is currently in prison in Khartoum, Sudan’s capital, but military authorities have said they will not hand al-Bashir over to the ICC.
This article was first published on the International Justice Monitor website.