In its judgement to be announced on Monday, the Appeals Chamber is expected to untangle the issue of whether the head of state of a country that is not a member of the International Criminal Court (ICC) is immune from arrest when a warrant has been issued for them.
The Appeals Chamber is scheduled to release its decision on whether Jordan, a member of the ICC, erred in not executing ICC arrest warrants for Omar Hassan Ahmad al-Bashir, who was President of Sudan when he attended a League of Arab States summit in Jordan in March 2017. Sudan is not a member of the ICC.
The Appeals Chamber will also be expected to determine whether Jordan should be referred to the ICC’s membership, formally known as the Assembly of State Parties (ASP), if the chamber finds Jordan should have arrested al-Bashir. Relatedly, the Appeals Chamber is expected to make a similar determination in relation to the United Nations Security Council.
Security Council Resolution 1593 of March 2005 triggered the ICC’s involvement in Sudan and led to the arrest warrants against al-Bashir for his alleged role in the atrocities in Sudan’s region of Darfur.
These issues form part of the three grounds of appeal Jordan filed on March 12, 2018 and which the Appeals Chamber is expected to consider in its judgement next week. Jordan filed the appeal after Pre-Trial Chamber II determined Jordan should have arrested al-Bashir when he attended the League of Arab States meeting in Jordan in March 2017. In the same decision, issued on December 11, 2017, Pre-Trial Chamber II determined Jordan failed to cooperate with the court by not arresting al-Bashir and Jordan should be referred to both the ASP and the Security Council for non-cooperation.
This will be the first time the Appeals Chamber will be issuing a judgement on all these issues and others that were raised during hearings held in September last year. It should be noted that the Appeals Chamber is conscious of the responsibility of being the apex chamber of the ICC.
“The Jordan Referral re al-Bashir Appeal raises legal issues that may have implications beyond the present case,” observed the Appeals Chamber in a March 29, 2018 order that invited the League of Arab States, the African Union, the United Nations, the European Union, and the Organization of American States to make submissions as friends of the court. The order also invited ICC members and international law professors to indicate their interest in making submissions.
The chamber held five days of hearings last September on the Jordan appeal after receiving submissions from the League of Arab States, the African Union, and select law professors. In preparation for the hearing, the chamber asked the parties to address three groups of questions.
The questions were organized into Group A, B, and C and were framed around the three grounds of appeal Jordan had filed. Group A questions focused on immunity of heads of state and international law. Group B questions focused on the Security Council resolution that referred the situation in Sudan’s western region of Darfur to the ICC. Group C questions focused on the articles in the ICC’s founding law, the Rome Statute, which deal with how members of the ICC are to work with the court.
Mahmoud D. Hmoud, who led Jordan’s legal team during the hearings, said Jordan had misgivings about the questions the Appeals Chamber had asked parties to address.
On the first day of the hearings, he said the questions raised, “issues that do not arise in the Pre-Trial Chamber II decision.”
During those hearings, the Appeals Chamber heard from five members of the United Nation’s International Law Commission. These were Hmoud, who is also Jordan’s ambassador to Singapore; Sean Murphy and Michael Woods, who were also part of Jordan’s legal team; and Dire Tladi and Charles Jalloh, who were both members of the African Union’s legal team during the hearings. These members of the International Law Commission provided insights into the commission’s work on the immunities of state officials as well as making arguments on behalf of the respective parties they represented.
Three of the international law professors who participated in the hearings were part of their countries’ delegations during the negotiations on the Rome Statute. These were Flavia Lattanzi of LUISS Guido Carli University; Claus Kreβ of the University of Cologne; and Darryl Robinson of Queen’s University. Lattanzi was a member of the Italian delegation, Kreβ was a member of the German delegation, and Robinson was a member of the Canadian delegation. During the course of the hearings, they also shared insights on the negotiations on the immunity provisions in the Rome Statute.
An issue that was the subject of lengthy discussion during the hearings was what can be considered “consultations” between an ICC member state and the court as provided for in the Rome Statute. This is also something the Appeals Chamber may venture into in its upcoming judgement as Pre-Trial Chamber II pronounced itself on the matter in its December 2017 decision.
During the hearings, African jurisprudence was referred to, something that is rare at the ICC. Different parties referenced the June 2015 decision of South Africa’s High Court and the February 2018 decision of Kenya’s Court of Appeal on whether al-Bashir’s immunity as head of state protected him from being arrested based on the ICC warrants when he visited South Africa in 2015 and Kenya in 2010.
On the first day of the hearings, September 10, the Appeals Chamber heard submissions on the issue of immunity. On the second day, September 11, the Appeals Chamber heard submissions on the Security Council’s March 2005 resolution. On the third day, September 12, parties continued their submissions on the Security Council resolution. On the fourth day, September 13, the Appeals Chamber heard submissions on whether Pre-Trial Chamber II was fair in referring Jordan to the ASP and Security Council for non-cooperation. On the final day of hearings, September 14, parties made their final submissions.
Since those hearings, al-Bashir has ceased to be Sudan’s president after he was toppled on April 11 following more than three months of non-violent protests against him. This means he can no longer claim any of the immunities he enjoyed as Sudan’s head of state nor can he argue the ICC arrest warrants against him cannot be acted on.
All parties agreed during hearings that once an individual who was head of state leaves office, that individual does not continue enjoying any of the immunities they may have had while in office.
Another issue all parties agreed to was that Sudan had the clearest responsibility to execute the arrest warrants against al-Bashir. The parties said this was because Sudan’s obligations were explicitly laid out in the Security Council resolution that referred the conflict in Sudan’s region of Darfur to the ICC.
Al-Bashir is currently being held in Koper Prison in Khartoum, Sudan’s capital, but military authorities have said they will not hand him over to the ICC.