Jordan has told the International Criminal Court (ICC) that it interpreted international law correctly when it did not arrest Sudan’s President Omar Ahmad al-Bashir while he was in Jordan for a heads of state summit of the League of Arab States last year. According to Jordan, al-Bashir had immunity under international law as a sitting Head of State, and that by arresting him during his visit, Jordan would have violated customary international law.

Mahmoud D. Hmoud, Jordan’s legal representative, asked the Appeals Chamber on Monday to uphold Jordan’s three grounds of appeal against Pre-Trial Chamber II’s December 11, 2017 decision.

In that decision, Pre-Trial Chamber II directed that Jordan be referred to the United Nations Security Council and the ICC’s membership, the Assembly of State Parties, for not acting on ICC arrest warrants for al-Bashir. The ICC has issued two arrest warrants for al-Bashir for his alleged role in the conflict in Sudan’s western region of Darfur. One arrest warrant was issued in March 2009 and the other was issued in July 2010.

The Appeals Chamber invited many state and international representatives, as well as legal experts, to make submissions on the appeal. During his introductory remarks, Presiding Judge Chile Eboe-Osuji said the chamber had invited al-Bashir and the Sudanese government to make submissions on Jordan’s appeal but the Sudanese authorities did not respond to the invitation.

Hmoud was speaking on the first day of hearings on Jordan’s appeal. He is a member of the United Nations’ International Law Commission and Jordan’s ambassador to Singapore.

He presented an overview of Jordan’s appeal and said Jordan was concerned about the Appeals Chamber’s decision to divide this week’s hearings into three subject areas: Group A, B, and C.

Group A questions focus on immunity of heads of state and international law. Group B questions focus on the Security Council resolution that referred the situation in Sudan’s western region of Darfur to the ICC. And Group C questions focus on the articles in the ICC’s founding law, the Rome Statute, that deal with how state parties of the ICC are to work with the court. In an August 27 order on how the hearings will be managed, Presiding Judge Chile Eboe-Osuji asked the parties and participants to address some or all the questions raised in the order.

Hmoud said that in Jordan’s view, the questions raised “issues that do not arise in the Pre-Trial Chamber II decision.”

He said that in responding to the subject groups the Appeals Chamber had framed, the prosecution made six alternative arguments, “in order to maintain that Pre-Trial Chamber II came to the right conclusion on 11th December, 2017.”

“Jordan is committed to the fight against impunity. Its representatives have played an important role in the negotiation and implementation of the Rome Statute,” said Hmoud.

Next to speak was Michael Wood, who is part of Jordan’s appeals legal team. He elaborated Jordan’s first ground of appeal and addressed some of the Group A questions the Appeals Chamber had asked for submissions on. Wood is also a member of the UN International Law Commission and a British barrister.

After Wood spoke, it was the prosecution’s turn to address the Group A questions. Matthew Cross and Rod Rastan spoke on behalf of the prosecution. Rastan argued that the immunity of a head of state is not established under customary international law.

Rastan argued that for immunity of a head of state to be customary international law, the practice of states on the matter had to be uniform. Rastan said that was not the case currently. He also argued that for immunity of a head of state to be customary international law, there had to be a general rule that this was a legal obligation states followed. Rastan said that decisions by various Pre-Trial Chambers and by South African and Kenyan courts questioning the immunity of heads of state showed there was no general rule on the matter.

Namira Negm, the legal counsel of the African Union, spoke next and said that on the 20th anniversary of the Rome Statute, the Appeals Chamber “will be deciding one of the most important questions before it.”

Negm said the Appeals Chamber’s invitation to the African Union to make submissions concerning Jordan’s appeal “signifies a more constructive approach between the African Union and the ICC.” She said the African Union supported Jordan’s appeal because Pre-Trial Chamber II’s decision was “contrary to customary law.”

Maged Abdelfattah Abdelazziz, the League of Arab States permanent observer to the United Nations, told the court that the League of Arab States has a 1945 pact that provides for immunity of heads of state during its meetings. He said those immunity provisions are further elaborated in a 1953 convention of the league.

Abdelazziz said Pre-Trial Chamber II erred in fact and law in its decision against Jordan. He said that decision would have “serious and negative consequences on the functioning of the League of Arab States.”

He said Article 27 of the Rome Statute made it clear that “no immunity exists once the defendant is before” the ICC. Abdelazziz said Article 98 provided for how members of the ICC would handle the matter of immunity outside the courtroom.

“It cannot be said that the text of Article 98 allows impunity. It cannot be said Article 98 frustrates the object and purpose of the Rome Statute,” Abdelazziz.

After Abdelazziz spoke, several law professors addressed the court. On March 29, the Appeals Chamber had invited law professors to apply to make observations on Jordan’s appeal as friends of the court.

Claus Kreß of the University of Cologne told the court that a head of state had immunity where the national jurisdiction was involved, but that it was different when it came to international jurisdiction.

“The arrest and surrender of someone in international criminal proceedings is something different from arresting and surrendering someone in the course of national criminal proceedings,” said Kreß.

Flavia Lattanzi of the LUISS Guido Carli University said, “Peace cannot be reached in Darfur unless those responsible including the Sudanese head of state are put on trial.”

Lattanzi urged the Appeals Chamber to “apply all the provisions of the (Rome) statute even if they run counter to customary standards.”

Konstantinos Magliveras of the University of the Aegean said Sudan’s constitution does not give al-Bashir unlimited immunity as head of state.

“It is clear even from the Sudanese constitution, the provisions which Jordan failed to consider, that Mr. al-Bashir may not invoke his official capacity even from the national level,” said Magliveras.

After Magliveras, Michael Newton of Vanderbilt University highlighted data he and others had collected to map al-Bashir’s travel since arrest warrants were issued for him. Newton said the data showed that those arrest warrants did not always deter al-Bashir’s traveling to countries that are member of the ICC who may be expected to execute the warrants.

“The data shows that the involvement of domestic courts has been the single most important cause for the cancellation of these trips,” said Newton. He said often al-Bashir cancelled a trip, “due to happenstance.”

Once Newton concluded his presentation, the court adjourned for the day. The hearing continued on Tuesday.

A transcript of Monday’s hearing can be found here.