On May 6, 2019, the International Criminal Court (ICC) reversed an earlier decision seeking intergovernmental follow-up on Jordan’s failure, in March 2017, to arrest then-Sudanese President Omar Al-Bashir, whom the ICC seeks to prosecute for alleged crimes against humanity, war crimes, and genocide in Darfur. In a split decision, the Appeals Chamber confirmed that Jordan had violated its international obligations when it failed to arrest Al-Bashir, but concluded that the Pre-Trial Chamber II had improperly exercised its discretion in referring Jordan for non-cooperation because it had not treated South Africa in the same way and because Jordan had sought to consult the Court on whether arresting Al-Bashir would conflict with its other international obligations, specifically regarding respect for Head of State immunity. See ICC, Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-397, Judgment in the Jordan Referral Re Al Bashir Appeal, 6 May 2019, para. 2. Two judges dissented on that final point, arguing that the referral was proper. See ICC, Joint Dissenting Opinion of Judge Liz del Carmen Ibanez Carranza and Judge Solomy Balungi Bossa, ICC-02/05-01/09-397-Anx2, 6 May 2019.
Referrals for Non-Cooperation
Pursuant to Article 86 of the Rome Statute, States parties are obligated to “cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.” The ICC is empowered to make specific requests for the cooperation of States parties and of other States. See Rome Statute, art. 87(1), (5)(a). The ICC has, on numerous occasions, noted States parties’ failure to cooperate, specifically by not arresting ICC suspects on their territories. See, e.g., ICC, Assembly of States Parties, Non-cooperation. When States fail to cooperate, the ICC has the option of referring the matter to the Assembly of States Parties or to the Security Council, where the Security Council initially referred a situation to the ICC, for follow-up. See Rome Statute, art. 87(5)(b), (7).
This case arises as the result of Jordan’s appeal of a prior decision of ICC Pre-Trial Chamber II, finding that Jordan had violated its obligation as a State party to the Rome Statute by failing to arrest and surrender Omar Al-Bashir, then president of Sudan, when he visited the country for the 28th Summit of the League of Arab States in March 2017. See Prosecutor v. Omar Hassan Ahmad Al Bashir, 6 May 2019, para. 13. The Pre-Trial Chamber held that this action constituted non-compliance with Jordan’s obligations under the Statute and that Jordan should be referred to the Assembly of States Parties and to the United Nations Security Council, in accordance with Article 87(7) of the Rome Statute. See id. at para. 14. Further, the Pre-Trial Chamber concluded that in cases of a UN Security Council referral to the ICC, Sudan—not a State party to the Rome Statute—had the same obligations as a State party to cooperate with the Court. See id.
In March of 2005, the UN Security Council adopted resolution 1593 (2005) referring the situation in the Darfur region of Sudan to the ICC. See id. at para. 12. Years later, in March 2009 at the request of the ICC Prosecutor, the Pre-Trial Chamber I issued a warrant for Omar Al-Bashir’s arrest on allegations of war crimes and crimes against humanity committed during his time as President of Sudan. See id. at para. 12. A second arrest warrant was issued in July 2010, adding a charge of genocide to the list of crimes for which he was accused. See id. The ICC notified all States parties to the Rome Statute, ensuring awareness of their obligation to take Al-Bashir into custody should he enter their territory. See id.
The Appeal Chamber’s Analysis
In December 2017, the Pre-Trial Chamber certified three questions for the Appeals Chamber review concerning: 1) whether the Rome Statute precluded Al-Bashir’s immunity and Jordan’s obligation to arrest him; 2) whether UN Security Council Resolution 1593 (2005) disavowed Jordan of any obligation to afford immunity to Al-Bashir under international law, including customary international law; and 3) whether Jordan’s referral to the UN Security Council over its non-compliance was properly within the Pre-Trial Chamber’s discretion. See Prosecutor v. Omar Hassan Ahmad Al Bashir, 6 May 2019, para. 17.
Immunity Claim & Jordan’s Obligation to Arrest and Surrender
The Appeals Chamber analyzed the first two grounds of appeal under the broader issue of whether, under international law, Al-Bashir had a valid claim of immunity that would obligate the ICC to obtain a waiver before requesting that Jordan make the arrest. See id. at paras. 46, 128. The claim for immunity was based largely on the concept in customary international law of “Head of State Immunity,” which prevents sovereign States from exercising their criminal jurisdiction upon the leaders of other sovereign States. See id. at paras. 53, 101. The Appeals Chamber held that there is nothing in international customary law that would imply that Head of State immunity applies with respect to the jurisdiction of an international criminal court prosecuting international crimes. See id. at paras. 106, 117. Thus, the Appeals Chambers concluded that “by ratifying or acceding to the Statute, States Parties have consented to the inapplicability of Head of State immunity for the purpose of proceedings before the Court.” See id. at para. 132. The Appeals Chamber also noted that it was unconvinced by Jordan’s claim that its treaty obligations under the 1953 Arab League Convention on Privileges and Immunities conflicted with the ICC request. See id. at paras. 154-159.
Further, despite Sudan’s status as a non-party to the Rome Statute, the Appeals Chamber acknowledged that, as a UN Member State, Sudan is bound by the authority of the UN Security Council and cannot invoke Head of State immunity with respect to arrest warrants issued by the ICC. See id. at paras. 133, 135-145. Therefore, Resolution 1593(2005) had the effect of producing a distinct obligation on Sudan to “cooperate fully” with the ICC and, as is required of States parties to the Rome Statute, to waive any immunity of Sudanese leaders. See id. at paras. 140-44. The Court did not clarify whether, under customary international law, States non-parties to the Rome Statute would enjoy Head of State immunity if the ICC seeks to arrest an individual in a case not referred by the UN Security Council. [Just Security]
Finding that no Head of State immunity existed for Al-Bashir, the Appeals Chamber held that Jordan had indeed failed to cooperate with the ICC as it was bound to do under the Rome Statute, and also failed to comply with its obligations under the Convention Against Genocide. See Prosecutor v. Omar Hassan Ahmad Al Bashir, 6 May 2019, paras. 161-162. This aspect of the decision was unanimous among all five judges. See id. at para. 2.
Pre-Trial Chamber’s Discretion
The Appeals Chamber the addressed the third ground for appeal regarding whether the Pre-Trial Chamber had properly exercised its discretion in referring Jordan’s non-compliance with the Rome Statute to the Assembly of States and the UN Security Council. See id. at para. 163. Under Article 87(7) of the Rome Statute, the ICC may exercise its discretion to refer cases of non-compliance to these bodies for further action in situations that meet a certain “factual prerequisite,” which requires two conditions: “(i) that the State concerned failed to comply with a request to cooperate; and, (ii) that this non-compliance is grave enough to prevent the Court from exercising its functions and powers under the Statute.” See id. at para. 184. Both conditions must be met in order for a State to be referred to the Assembly of States or the UN Security Council. See id. While this issue was not raised by the parties, the Appeals Chamber noted that this matter was important enough to raise it of its own motion. See id. at para. 185.
The first condition was met as a result of Jordan’s failure to comply with the Court’s request to cooperate. See id. at para. 186. Further, in light of the fact that the Court had previously issued not one, but two warrants for Al-Bashir’s arrest requiring his presence before the Court, Jordan’s failure to comply prevented the Court from “exercising its powers and functions” under the Rome Statute and met the gravity requirement. See id. at para. 191.
Nonetheless, the Appeals Chamber assessed whether or not a referral was appropriate under the specific circumstances of this case and the standards of review for the Court’s discretionary actions. See id. at para. 192. First, the Appeals Chamber found that Jordan had attempted to engage in consultation with the Court prior to Al-Bashir’s visit through its Note Verbale of March 28, 2017, demonstrating a willingness to engage and reducing the need for referral. See id. at paras. 203-06. It also noted that the fact that the Court had treated Jordan differentially—by referring Jordan but not South Africa when it acted contrary to its international obligations in a similar situation—amounted to an error in the Pre-Trial Chamber’s discretion. See id. at para. 208, 209-12. Thus in a three to two majority, the Appeals Chamber found that the Pre-Trial Chamber had improperly exercised its discretion in this case, and reversed this aspect of the prior decision. See id. at paras. 212, 213.
While the Appeals Chamber was unanimous in concluding that Jordan was required to cooperate by arresting Al-Bashir and that its failure to do so was a grave impediment to the ICC’s work, two judges disagreed with the majority’s conclusion that Jordan had sought to consult the ICC. See ICC, Joint Dissenting Opinion of Judge Liz del Carmen Ibanez Carranza and Judge Solomy Balungi Bossa, ICC-02/05-01/09-397-Anx2, 6 May 2019. They also stated concerns over the potentially reduced enforcement capacity of ICC judgments in allowing Jordan to avoid accountability measures. See id. at para. 15.
Reactions from Legal Experts
A number of legal experts have criticized this decision as one that is not only “confusing,” but potentially sets damaging precedents for the future credibility of the ICC and other international courts. [Just Security] Some experts have cautioned that the jurisdictional precedent essentially strips away the rights of States non-parties, undermining the voluntary nature of participation with the ICC. [EJIL] On the other hand, the two dissenting judges warned that the majority’s reasoning allows States to avoid their obligations without consequence and ultimately undermines the object and purpose of the Court in its effort to ensure justice for victims and to punish the perpetrators of the most serious international crimes. See Joint Dissenting Opinion of Judge Liz del Carmen Ibanez Carranza and Judge Solomy Balungi Bossa, 6 May 2019, para. 15. These critiques follow the Court’s widely condemned decision in April, not to proceed with an investigation into war crimes and crimes against humanity committed in Afghanistan. [IJRC]
The ICC was established by the Rome Statute, and officially opened in 2002. See ICC, About. It investigates and prosecutes crimes of genocide, crimes against humanity, war crimes, and the crime of aggression. See id. For more information on the International Criminal Court, visit IJRC’s Online Resource Hub. To learn more about individual countries’ human rights obligations, see IJRC’s country factsheets, including on Sudan. To stay up-to-date on international human rights law news, visit IJRC’s News Room and subscribe to the IJRC Daily.