On May 25, 2018, the Appeals Chamber of the International Criminal Court (ICC) invited submissions from the Sudanese government and President Omar Hassan Ahmad al-Bashir on the legal questions raised by Jordan in its pending appeal. The appeal originates from ongoing proceedings on the non-compliance of Jordan with the ICC in executing the arrest warrant against the Sudanese president upon his last visit to the country on March 29, 2017.

The Pre-Trial Chamber Non-Compliance Decision

Pre-Trial Chamber II of the ICC referred Jordan to the Assembly of States Parties of the Rome Statute (ASP) and the United Nations Security Council in December 2017 for not executing the court’s request for the arrest of al-Bashir when he was there for the League of Arab States’ Summit.  In not executing the arrest of al-Bashir, Jordan argued that the Sudanese president “enjoyed immunity ratione personae under international law as a sitting Head of State and that his arrest by Jordan would have violated Jordan’s obligation under customary international law concerning such immunity.”

Judge Marc Perrin de Brichambaut appended a minority opinion [pdf] concurring with the majority’s conclusions while disagreeing on the legal basis for the removal of Bashir’s immunity. Rather than relying on the argument that the Security Council resolution referring the situation in Darfur to the ICC has the effect of removing al-Bashir’s immunity, Judge de Brichambaut found that the Convention on the Prevention and Punishment of the Crime of Genocide, which Jordan and Sudan are both parties, offers the legal basis for removing his immunity.

Al-Bashir’s Previous Request to Visit Jordan

When al-Bashir traveled to Jordan for the League of Arab State Summit last year, the visit may have been seen as surprising to some. This is because Jordan had blocked a similar attempt by al-Bashir to visit the country in 2014. According to media reports, in 2014, Bashir made the request to visit through the Jordanian Embassy in Khartoum. The Jordanian Embassy then referred the matter to its foreign ministry. The latter informed Khartoum that it was unable to receive al-Bashir, with no further explanation from any side.

Jordan’s Appeal of the Pre-Trial Chamber Decision

Jordan’s apparent change of heart about admitting the Sudanese president into the country and subsequent non-compliance decision by the ICC has led to the current state of proceedings. On March 12, 2018, Jordan appealed the pre-trial chamber decision and argued in their submission that the chamber “erred” in its finding on the effects of the Rome Statute on Jordan’s obligations under international customary and conventional law. Furthermore, even if the chamber’s decision was “correct,” the chamber has “abused” its discretion in referring the situation to the ASP and the Security Council. This will be the first time the Appeals Chamber will be reviewing such a decision.

Jordan is among several countries that have refused to enforce al-Bashir’s arrest warrants, on the basis of their duty to respect head of states immunity under international law. The ICC Appeals Chamber has invited the Sudanese authorities and al-Bashir to file submissions on the merits of questions raised in Jordan’s appeal of the pre-trial chamber decision. The chamber has also invited observations from the UN, ICC member states, and regional bodies, such as the African Union and the League of Arab States. In addition, the chamber granted leave for 17 additional legal opinions from a number of law professors and the state of Mexico.

Jordan’s arguments may sound familiar. The ICC examined a similar situation last year, after South Africa failed to comply with the arrest warrants against al-Bashir during his stay in the country to attend the African Union Summit in 2015. Similar to the reasoning given in the case against Jordan, Pre-Trial Chamber II held in that instance that as a result of the Security Council resolution, the situation in Darfur is analogous to other States Parties to the Rome Statute and imposes an obligation on Sudan to cooperate fully with the court. Article 27(2) of the Rome Statute, which removes immunities from those serving in official capacities, was found to be applicable to Sudan. Therefore, the immunities of al-Bashir as ahead of state under customary international law do not apply vis-à-vis States Parties to the Rome Statute.

However, the pre-trial chamber did not refer South Africa to the ASP or UN Security Council, in its opinion, in part because South Africa approached the court with a request for consultations on the matter under Article 97 of the Rome Statute.

The Troubling Travel History of al-Bashir 

Since his arrest warrants, which were issued in 2009 and 2010, respectively, al-Bashir has traveled to destinations including Rwanda, Nigeria, and Indonesia, all parties to the Rome Statute. His travel caused particular tension in 2012 when Malawi, also a state party to the Rome Statute, refused to host him at the scheduled AU summit. The government of Malawi later decided to cancel the summit, after the AU Commission insisted that the country host all of continent’s presidents, including al-Bashir.

Notably, the AU signed a declaration in 2009 expressing concern over al-Bashir’s indictment, claiming it derailed the Darfur peace process, and issued another in 2010 stating that the AU would not enforce the arrest warrants against al-Bashir.

Travel by the Sudanese president and the refusal by ICC state parties that receive him to execute his outstanding arrest warrants remain a major challenge for the ICC. In a recent trend, countries like Jordan and Indonesia that had previously blocked visits from al-Bashir have received him. The ongoing noncompliance with ICC arrest warrants caused the ICC prosecutor to criticize implicated state parties and the UN Security Council, stating that their lack of action “has the potential to undermine the fight against impunity” and “only serves to embolden others to invite Mr Al Bashir to their territory.”

Submissions in the appeal will be made throughout June and July. The Appeals Chamber has also scheduled a hearing on Jordan’s appeal from September 10-12, 2018.

The situation in Darfur, Sudan, was referred to the ICC by the UN Security Council in Resolution 1593 from March 31, 2005. The ICC prosecutor opened an investigation in June 2005. On March 4, 2009 and July 12, 2010, respectively, the ICC issued two arrest warrants against Omar al-Bashir for five counts of crimes against humanity (murder, extermination, forcible transfer, torture, and rape), two counts of war crimes (intentionally directing attacks against a civilian population as such or against individual civilians not taking part in hostilities, and pillaging), and three counts of genocide allegedly committed against the Fur, Masalit, and Zaghawa ethnic groups in Darfur, Sudan, from 2003 to 2008.

Mohamed Osman is an Aryeh Neier Fellow at the Open Society Justice Initiative. He holds a LL.B and Postgraduate Diploma on Human Rights from the University of Khartoum as well as a LL.M on International Human Rights and Humanitarian Law from University of Essex (2015-2016). His thesis focused on the application of rule of law by armed opposition groups in their controlled territories.