Al Bashir case: ICC asks submissions on Jordan’s legal questions

For the first time, the Appeals Chamber of the International Criminal Court (ICC) has invited Sudanese authorities to enter submissions on legal questions which a state party has raised in its pending appeal.

The ICC decided that Jordan has failed to comply with its obligations under the statute of Rome when it did not execute the court’s international arrest warrant in March 2017 by handing over Sudanese President Omar Al Bashir. Al Bashir was visiting Jordan at the time for the 28th summit of the Arab League.

The Pre-Trial Chamber, which took the decision, then referred the matter of Jordan’s non-compliance to the United Nations Security Council and the Assembly of States Parties. This is the regular procedure of the ICC; leaving it up to the members of the Security Council and Assembly to take the measures they deem necessary regarding such matters.

Jordan appealed, however, to the decision to refer the case to the Security Council on March 12 this year. Jordan and several countries that have refused to enforce Al Bashir’s arrest warrant said in the past that heads of states have an immunity they have to respect – otherwise his arrest would be a violation to the international law.

This will be the first time that the ICC Appeals Chamber will reconsider a referral to the Assembly of States Parties and the Security Council about a state party’s non-compliance. “The competent authorities of the Republic of Sudan and Mr Omar Hassan Ahmad Al Bashir may each file submissions, in no more than 20 pages, on the merits of these questions,” the order for submissions reads. The Sudanese authorities have until July 16 to submit.

The Appeals Chamber firstly invited observations from the UN, ICC State Parties and regional bodies, such as the African Union and the League of Arab States, on March 29 this year.

Non-compliance

Jordan already appealed the decision of non-compliance in December 2017 arguing that, unlike a similar proceeding involving South Africa, the Chamber did not accord Jordan the opportunity to present its views in a public hearing before the Chamber.

According to the Rome Statute, an ICC member state such as Jordan is obligated to cooperate with the Court in its investigation and prosecution of crimes. That includes an obligation to comply with requests from the Court related to the arrest of a wanted person. Where an ICC member state fails to comply with such a request, the Court may make a finding of non-compliance.

Nine-year-old case

In June last year, ICC prosecutor Fatou Bensouda presented her 25th report on the situation in Darfur to the UN Security Council, and urged the members “to take concrete action and help deliver justice to the victims of the crimes committed in Darfur” by arresting the indicted president.

In 2009 and following years, the ICC issued 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. The war left nearly 300,000 people killed and more than two million people displaced.

Sudan has not signed the Rome Statute and argues that the ICC therefore does not have a right to execute a warrant. Al Bashir has denied the charges against him, and continues to travel to various countries with impunity.