Lawyers Debate What Constitutes Consultation Between a Member State and the ICC

The question of how and on what topic a member state of the International Criminal Court (ICC) can consult the court was the main subject of the fourth day of hearings on Jordan’s appeal against its referral to the United Nations Security Council and the ICC’s membership.

Jordan, which is a member of the ICC, has appealed a December 11, 2017 decision of Pre-Trial Chamber II to make the referral for not arresting Sudan’s President Omar Ahmad al-Bashir when he went to Jordan in early 2017 to attend a League of Arab States summit.

On Thursday, September 13, Jordan and the prosecution made submissions to the Appeals Chamber on whether Pre-Trial Chamber II was fair in referring Jordan to the Security Council and the Assembly of State Parties (ASP). The issue of fairness arose because Pre-Trial Chamber II decided in July 2017 against referring South Africa, another ICC member state, when South Africa failed to arrest al-Bashir while he was in the country for an African Union summit.

The ICC has sought al-Bashir’s arrest since it issued warrants against him in 2009 and 2010. Al-Bashir is wanted on charges of war crimes, crimes against humanity, and genocide allegedly committed in the conflict in Sudan’s southwestern region of Darfur. The Security Council referred the Darfur conflict to the ICC through Resolution 1593, which was adopted on March 31, 2005.

On Thursday, September 13, Sean Murphy, a member of Jordan’s legal team, said Pre-Trial Chamber II erred in fact and law in its decision. He said on March 24, 2017 Jordan told the court it had not received official confirmation whether al-Bashir would attend the League of Arab States summit that month when the Registry inquired about al-Bashir’s possible visit to Jordan.

Murphy said that on March 24, 2017 the prosecution requested Pre-Trial Chamber II to order the Registrar to seek clarification from Jordan on whether there would be any problem in arresting al-Bashir if he visited the country. He said following the prosecution’s request no action was taken.

Four days later, on March 28, 2017, Murphy said Jordan wrote to the court to say Sudan had confirmed al-Bashir would be attending the summit and Jordan considered him a sitting head of state as Sudan had not waived his immunity. He said Jordan said it was initiating consultation with the court under Article 97. He said the prosecution filed a response the following day asking Pre-Trial Chamber II to make an urgent decision on what Jordan’s obligations were.

“Jordan was genuinely seeking consultations and it was doing so in good faith,” said Murphy.

Responding to a question from Presiding Judge Chile Eboe-Osuji, Murphy explained that Pre-Trial Chamber II said in its December 11, 2017 decision it had given its “unequivocal” opinion on the obligations of a member state of the ICC to arrest al-Bashir when it decided on the South Africa case.

“Nothing was explained to Jordan by the Pre-Trial Chamber in these consultations. There was no comeback from the Pre-Trial Chamber,” said Murphy, referring to the period between March 24 and March 29, 2017. He said Pre-Trial Chamber made its  decision on South Africa in July 2017, several months after al-Bashir had visited Jordan.

“We think that the comparison with South Africa is unfair and unreasonable. When you look at the South Africa decision there’s a very lengthy discussion of why referral might or might not occur, and then a conclusion that it should not occur.

“There’s none of that discussion with respect to Jordan, none of the issues about Jordanian law or availability of Jordanian courts, or anything. There is nothing that analyses why it is us (Jordan), just a few months after South Africa, should be referred,” said Murphy.

Priya Narayanan, speaking for the prosecution, said Jordan did not initiate consultations with the court in terms of Article 97 and Jordan only referred to Article 97 in its note verbale of March 28, 2017, a day before the League of Arab States summit began.

“Put quite simply Jordan asked no question of the court. They identified no difficulty, no impediment in executing the request. Instead, it (the note verbale) expressed a clear legal position supporting their resolve not to execute the court’s request,” said Narayanan.

She said that one reason Pre-Trial Chamber II decided not to refer South Africa to the Security Council or the ASP was that there had been “comprehensive national proceedings,” on the country’s obligation to arrest al-Bashir, which South Africa accepted.

“But Jordan’s case is obviously different. It has neither accepted its obligation to comply nor are there any national proceedings of any note,” said Narayanan.

Representatives of the African Union and the League of Arab States, as well as law professors whom the Appeals Chamber had invited as friends of the court, also submitted their opinions on these questions.

Darryl Robinson of Queen’s University told the Appeals Chamber that Pre-Trial Chamber II erred when it concluded in its decision that Jordan had taken a clear position on whether to arrest and surrender al-Bashir. He said the Pre-Trial Chamber also erred when it said they had given an unequivocal opinion to Jordan when that opinion was expressed months later in its decision on the South Africa case.

Robinson said it would be important for the Appeals Chamber to acknowledge that there was “intense controversy” and an “aura of legal uncertainty” on what Jordan’s obligations were towards the ICC and “arresting a foreign head of state is a momentous action.”

“I myself worked for 10 years as a legal officer for a government and we would want the most extreme legal clarity before we took such a step,” said Robinson.

The hearing continued on Friday, September 14 when the lawyers made their final submissions. A transcript of Thursday’s hearing is now available on the ICC website.

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