Arrest Bashir / ICC member state Jordan fails to arrest Sudanese president - Summary of filings

Sudanese President Omar al-Bashir attends talks of the Arab League summit in the Jordan © Khalil Mazraawi | AFP
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According to the Rome Statute, an ICC member state is obligated to "cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court," which includes an obligation to comply with requests from the Court related to the arrest and surrender 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 and refer the matter to the Assembly of States Parties and, in this case, the United Nations Security Council (UNSC). President Omar Hassan Ahmad al Bashir is wanted by the Court for genocide, war crimes, and crimes against humanity allegedly committed in Darfur, Sudan. Despite the two warrants issued for his arrest, President al Bashir continues to travel to the territories of both non-ICC member states and several ICC member states, most recently the Hashemite Kingdom of Jordan. Below is a summary of Court filings related to al Bashir's 2017 visit to Jordan and the subsequent finding of non-compliance. The decision on non-compliance is currently being appealed by Jordan.

On 10 January 2017, the Registry was alerted of potential visit of Mr. Omar Hassan Ahmad al Bashir to Jordan in order to participate in 28th Arab League Summit, scheduled to take place in Amman, Jordan on 29 March 2017.

On 21 February, the Registry transmitted a note verbale to Jordanian Embassy in Netherlands requesting information on the visit and renewing the request for cooperation with the Court on arresting and surrendering al Bashir in the event he enters Jordanian territory.

The Registry received a note verbale in response dated 24 March in which Jordan confirmed the registration of a Sudanese delegation, but no official confirmation of al Bashir’s attendance was received. Furthermore, Jordan stated that it would “adhere to its international obligations, including [the] applicable rules of customary international law, while taking into account all rights thereunder.”

second note verbale from Jordan was received dated 28 March confirming al Bashir’s attendance. The note verbale also notified the Registry of Jordan’s Article 97 consultation with the Court and that “President Omar Al Bashir enjoys sovereign immunity as a sitting Head of State under the rules of customary international law.” Furthermore, Jordan stated that immunity had not been waived by Sudan nor by the Security Council of the United Nations in its resolution 1593(2005). Making reference to articles 98(1) and 27(2) of the Statute, Jordan concluded that “[n]othing in the two articles mandates the State Party to the Rome Statute to waive the immunity of a third State and act inconsistently with its obligations under the rules of general international law on the immunity of a third State.”

On 29 March, Jordan failed to arrest al Bashir when he attended the Arab League Summit in Amman, Jordan.

On 26 April, Pre Trial Chamber II (PTC II) issued a decision inviting Jordan to provide further information on its failure to arrest al Bashir by 26 May.

On 24 May, Jordan requested an extension to the 26 May deadline to file additional submissions on their failure to arrest al Bashir. PTC II extended the deadline to 30 June.

Jordan’s 30 June submissions to PTC II included the following arguments:

  • Al-Bashir enjoyed immunity from criminal jurisdiction of Jordan during his attendance of the Arab Summit as a matter of treaty law pursuant to the 1953 Convention on the Privileges and Immunities of the Arab League (acceded to by Jordan on 12 December 1953).
  • As Sudan is not a party to the Statute, it has not waived immunity of its officials from the criminal jurisdiction of the Court or other States.
  • Al-Bashir enjoyed immunity ratione personae (by reason of his person) 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.
  • The legal relationship between Sudan and Jordan is governed not by the Statute but by the rules of customary international law and treaty rules governing the immunity of Heads of State and delegates to Arab League meetings.
  • As concerns Security Council Resolution 1593 (2005), while it would be open to the Council to exercise its Chapter VII powers to suspend the customary and conventional obligations of States to respect the immunity of a foreign Head of State, it has not done so in the present case.
  • If the Security Council intended to impose an obligation on States, including States Parties to the Rome Statute, to lift the immunity of Sudan’s officials, including the absolute immunity of a sitting Head of State, then the Council could have […] expressly stated so in resolution 1593 (or in subsequent resolutions). It did not. This effect cannot be considered implied in Resolution 1593 (2005), because only express provisions in Security Council resolutions can have the effect of requiring States to act in contravention of rules of general international law; travaux préparatoiresand subsequent practice also do not point towards such result.
  • The object and purpose of Resolution 1593 (2005) are not defeated by interpreting it as silent with respect to the denial of immunity of Omar Al-Bashir from national criminal jurisdiction.
  • Refering to article 98(2) of the Statute, it is not aware of any consent by the Sudan for the surrender of President Al Bashir to the ICC; as the Court never secured such consent for the surrender, proceeding with the request for arresting and surrendering President Al Bashir in accordance with the arrest warrants is not required given article 98(2) of the Rome Statute.
  • Resolution 1593 (2005) contains no language addressing explicitly or implicitly any such consent by the Sudan.
  • Implementation of the arrest warrants would have been a violation of Jordan’s obligation under the 1953 Convention not only towards Sudan, but also towards all State Parties to that convention (a multilateral treaty).
  • Requested consultations with the Court under article 97 of the Statute, but did not receive an answer by the Court.

On 13 July 2017, the Prosecutor responded to Jordan’s submission:

  • Previous public decisions of the Chamber made clear that the alleged legal impediments raised by Jordan did not provide a basis under article 98(1) or (2) of the Statute to nullify Jordan’s obligation to arrest and surrender Omar Al-Bashir to the Court.
     
  • Jordan is not entitled to rely on its own legal interpretation of article 98 of the Statute, and that consultations under article 97 of the Statute have no suspensive effect.

 

  • A referral of non-compliance is appropriate in the present circumstances.

 

  • The notes verbales transmitted by Jordan do not contain any arguments that had not previously been considered in public decisions of the Chamber, that to the extent that the note verbale of 28 March 2017 “amounted to a consultation with the Chamber, this took place the day before Mr Al Bashir’s arrival in Jordan, and only advanced an argument based on article 98(1) of the Statute”, and that “[a] remedy from this Court is […] likely the only judicial remedy that Jordan will face.”

On 11 December 2017, PTC II issued a decision of non-compliance by Jordan under article 87(7) and found a referral of Jordan to the Assembly of States Parties (ASP) and UN Security Council (UNSC) was warranted using the following analysis:

 

Decision on non-compliance

  • The bearer of the immunity under article 11 of the 1953 Convention, by its terms, are not all parties to the Convention, and also not the League of Arab States itself; representatives of any Member States of the League of Arab States which are not parties to the 1953 Convention do not enjoy immunities under article 11 of said convention even vis-à-vis those States which are parties to it.
     
  • As Sudan is not a party to the 1953 Convention, the Chamber cannot further consider Jordan’s argument that Omar Al Bashir, when on Jordanian territory in March 2017, benefitted from immunity from arrest under article 11 of the 1953 Convention.
     
  • Article 98(2) of the Statute does not apply to the 1953 Convention, it is applicable only to “obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court.”
     
  • The scope of article 27(2) of the Statute excludes immunity from arrest, effect of article 27(2) of the Statute is twofold: (i) it prevents States Parties from raising any immunity belonging to it under international law as a ground for refusing arrest and surrender of a person sought by the Court (vertical effect); and (ii) it prevents States Parties from invoking any immunity belonging to them when cooperation in the arrest and surrender of a person to the Court is provided by another State Party (horizontal effect).
     
  • The effect of a Security Council resolution triggering the Court’s jurisdiction under article 13(b) of the Statute is that the legal framework of the Statute applies, in its entirety, with respect to the situation referred; the interactions between Sudan and the Court with respect to the Court’s exercise of jurisdiction in the situation in Darfur are regulated by the Statute, therefore, article 27(2) of the Statute applies equally with respect to Sudan, rendering inapplicable any immunity on the ground of official capacity belonging to Sudan that would otherwise exist under international law.

 

  • Sudan cannot claim, vis-à-vis the Court, Omar Al-Bashir’s immunity as Head of State: Sudan has the obligation to arrest him and surrender him to the Court.

 

  • Immunities of Omar Al-Bashir as Head of State do not apply vis-à-vis States Parties to the Statute when they execute a request for arrest and surrender issued by the Court in the exercise of its jurisdiction in the situation in Darfur.

 

  • Article 98(1) of the Statute is not applicable to the arrest and surrender of Al- Bashir to the Court: no immunity needs to be waived and States Parties can execute the Court’s request for arrest and surrender without violating Sudan’s rights under international law
    Article 98 of the Statute addresses the Court, and is not a source of substantive rights (or additional duties) to States Parties, therefore, Jordan was not entitled to rely on its own understanding of article 98.

 

  • It is immaterial whether the Security Council intended – or even anticipated – that, by virtue of article 27(2) of the Statute, Omar Al-Bashir’s immunity as Head of State of Sudan would not operate to prevent his arrest sought by the Court in relation to the proceedings in the situation in Darfur referred to the Prosecutor of the Court in Resolution 1593 (2005).

 

  • No merit in Jordan’s argument that the note verbale of 28 March 2017 constituted a request for consultations, does not contain any question or call to action addressed to the Court.
     - Consultations (whether requested or ongoing) between a State and the Court do not, as such, suspend or otherwise affect the validity of the Court’s request for cooperation

Conclusion: Jordan failed to comply with the Court’s request for the arrest and surrender of Omar Al-Bashir.

 

Decision on referral

  • Jordan’s submissions indicate that it did not consider there to be any kind of unclarity as to its obligations vis-à-vis the Court. Jordan took a very clear position, chose not to execute the Court’s request
  • At the time of visit, Chamber had already expressed that consultations had no suspensive effect on obligation to arrest and surrender in relation to similar circumstances involving South Africa
  •  Conclusion: The matter will be referred to the ASP and the UNSC.
     

On 18 December, Jordan appealed the decision of non-compliance and referral 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. Jordan also sought leave to appeal on the following 4 issues:

1.       The Chamber erred with respect to a matter of fact concluding that Sudan was not a party to the 1953 Convention and that Sudan’s accession was an essential precondition for Jordan’s obligation to give effect to al-Bashir’s immunity under said convention;

2.       The Chamber erred with respect to matters of law in its conclusions regarding the effects of the Rome Statute upon the immunity of al Bashir, including its conclusions that Article 27(2) of the Rome Statute excludes the application of Article 98; that Article 98 establishes no rights for States Parties; that Article 98(2) does not apply to the 1953 Convention; and that even if Article 98 applied it would provide no basis for Jordan not to comply with the Court's request;

3.       The Chamber erred with respect to matters of law in concluding that UNSC resolution 1593 (2005) affected Jordan's obligations under customary and conventional international law to accord immunity to al Bashir;

4.       Even if the Chamber's Decision with respect to non-compliance was correct (quad non), the Chamber abused its discretion in deciding to refer such noncompliance to ASP and UNSC.

Find a more detailed description of the above 4 issues here

On 21 December, the Prosecution responded to Jordan’s notice of appeal submitting that it should be rejected as decisions under article 87(7) are not directly appealable under articles 81 and 82. The Prosecution did not object to granting Jordan leave to appeal on the second and third issues (above) as they meet the criteria for appeal under article 81(1)(d). However, the Prosecution included a proposal to reframe the second and third issues. Finally, the Prosecution submits that the Chamber should reject the appeal with respect on the first and fourth issues as they do not qualify as appealable items under article 82(1)(d).

Find a more detailed description of the Prosecution’s submission here 

 

On 28 December 2017, Jordan requested leave from the Chamber to file a reply to the Prosecution’s response. The Chamber decided on 15 January 2018 to allow Jordan to respond by 26 January 2018. Jordan submitted their reply on 23 January, reemphasizing the importance of being able to appeal all four issues identified previously.

Find the details of Jordan’s argument contained in their reply here

 

On 21 February, the Chamber granted Jordan’s leave to appeal with respect to the second, third, and forth issues, but rejected the leave to appeal on the first issue.

On 27 February, Jordan requested a page limit extension to 50 pages for its appeal to the December 2017 decision by the Chamber.

On 28 February, the Chamber granted a page limit extension of 50 pages to both Jordan’s appeal brief and the Prosecutor’s response. The time limit is also extended by seven days. The Prosecution did not oppose Jordan’s request for extension of pages for appeal brief, provided that the Appeals Chamber also grants consequent extensions (both of pages and time) for Prosecution. However, Prosecution submits that a 150% increase in pages (20 pages to 50 pages) is excessive, and suggests instead a more modest extension of 50% (20 pages to 30 pages). In such circumstances, the Prosecution seeks an additional 7 day extension of time to file its response brief (from 10 days to 17 days).

 

 
Related filings: 

24 March 2017: 
Report of the Registry on information received regarding Omar Al Bashir’s potential travel to the Hashemite Kingdom of Jordan

Document: ICC-02/05-01/09-291

 

28 March 2017: 
Report of the Registry on additional information received regarding Omar Al Bashir’s potential travel to the Hashemite Kingdom of Jordan

Document: ICC-02/05-01/09-293  

7 April 2017: 
ICC-02/05-01/09-T-2-ENG ET WT 07-04-2017 1-92 SZ PT

Document: ICC-02/05-01/09-T-2-EN

11 April 2017: 
Report of the Registry on information received regarding Omar Al Bashir’s travels to States Parties and Non-States Parties from 5 October 2016 to 6 April 2017 and other efforts conducted by the Registry regarding purported visits

Document: ICC-02/05-01/09-296

26 April 2017: 
Decision inviting the Hashemite Kingdom of Jordan to provide any further submissions on its failure to arrest and surrender Omar Al-Bashir to the Court

Document: ICC-02/05-01/09-297

 

24 May 2017: 
Transmission of a note verbale from the Embassy of the Hashemite Kingdom of Jordan dated 24 May 2017

Document: ICC-02/05-01/09-298

 

2 June 2017: 
Decision on the request of the Hashemite Kingdom of Jordan for an extension of the time limit to provide any further submissions on its failure to arrest and surrender Omar Al-Bashir to the Court

Document: ICC-02/05-01/09-299

 

30 June 2017: 
Transmission of a note verbale from the Embassy of the Hashemite Kingdom of Jordan dated 30 June 2017

Document: ICC-02/05-01/09-301

 

18 September 2017: 
Decision requesting the Hashemite Kingdom of Jordan to provide further information

Document: ICC-02/05-01/09-305

 

18 October 2017:
Transmission of a Note Verbale from the Embassy of the Hashemite Kingdom of Jordan dated 6 October 2017 

Document: ICC-02/05-01/09-306

 

11 December 2017: 
Decision under article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender or Omar Al-Bashir

Document: ICC-02/05-01/09-309

 

18 December 2017: 
The Hashemite Kingdom of Jordan's Notice of Appeal of the Decision under Article 87(7) of the Rome Statute on the Non-Compliance by Jordan with the Request by the Court for the Arrest and Surrender of Omar Al-Bashir\; or, in the Alternative, Leave to Seek Such an Appeal

Document: ICC-02/05-01/09-312

 

21 December 2017: 
Prosecution’s response to the Hashemite Kingdom of Jordan’s notice of appeal against the article 87(7) decision, or in the alternative, application for leave to appeal the decision under article 82(1)(d)

Document: ICC-02/05-01/09-313

 

28 December 2017: 
Request for leave to file a reply to the Prosecution's response to the Hashemite Kingdom of Jordan's notice of appeal against the article 87(7) decision, or in the alternative, application for leave to appeal the decision under article 82(1)(d)

Document: ICC-02/05-01/09-314

 

15 January 2018: 
Decision on Jordan’s request for leave to reply

Document: ICC-02/05-01/09-315

 

23 January 2018: 
Reply to the prosecution's response to the Hashemite Kingdom of Jordan's notice of appeal against the article 87(7) decision, or in the alternative, application for leave to appeal the decision under article 82(1)(d)

Document: ICC-02/05-01/09-316

 

21 February 2018: 
Decision on Jordan’s request for leave to appeal

Document: ICC-02/05-01/09-319

 

27 February 2018: 
The Hashemite Kingdom of Jordan's Application for an Extension of the Page Limit for its Appeal against the "Decision under article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender of

Document: ICC-02/05-01/09-321

 

27 February 2018: 
Order for a response to the application for an extension of the page limit

Document: ICC-02/05-01/09-322

 

28 February 2018: 
Decision on applications for extension of the page and time limits

Document: ICC-02/05-01/09-324

 

28 February 2018: 
Prosecution Response to the Kingdom of Jordan’s Application for an Extension of the Page Limit

Document: ICC-02/05-01/09-323