Coalition for the International Criminal Court

The International Criminal Court (ICC) Appeals Chamber (AC) unanimously confirmed Jordan’s failure to comply with its obligation to arrest former Sudan President Omar Al-Bashir during his visit to the Jordan territory in 2017, but reversed its earlier decision to refer Jordan to the United Nations Security Council (UNSC) and Assembly of State Parties (ASP).

On May 6, the Appeals Chamber of the ICC delivered its judgment on the appeal by the Hashemite Kingdom of Jordan against the decision of the Pre-Trial Chamber II entitled, ‘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 on 11 December 2017.

The presiding ICC judge, Chile Eboe-Osuji stated that “Jordan, a State Party to the ICC Rome Statute since 2002, had failed to comply with its obligations under the statute by failing to execute the court's request for the arrest of Mr al-Bashir and his surrender to the court, while he was in Amman on 29 March 2017.”

“The decision helps to assure that victims of mass atrocities have access to justice even when the highest-level officials are implicated in the crimes,” said Elise Keppler, Associate International Justice Director at Human Rights Watch.

The ICC decision on the Jordanian appeal has been particularly important in reaffirming the invalidity of heads of State immunities vis-à-vis international courts. The Judges affirmed that, by stipulating that immunities are not to be considered a bar to the exercise of jurisdiction, the Rome Statute reflects the current status of customary international law. However, the Appeals Chamber found however that “in the particular circumstances of this case, the Pre-Trial Chamber II erroneously exercised its discretion in referring Jordan to the ASP and to the UNSC”.

William Pace, Convenor of the Coalition for the ICC, stated, “One of the greatest achievements of the Rome Statute of the ICC is its fundamental strengthening of international law that there should be no immunity for anyone, including “Heads of State or Government,” who commit crimes against humanity.”

Lotte Leicht, EU Director, Human Rights Watch tweeted, “Decision by #ICC judges should shame states failing to arrest & surrender war crimes suspects to the court. But, ex-President, al-#Bashir, remains an ICC fugitive -wanted for atrocity crimes in #Darfur-, and he should be surrendered to The Hague.”

Case Background

The ICC issued two arrest warrants against al-Bashir for alleged crimes against humanity, war crimes, and genocide committed in Darfur, Sudan since 2009.

In February 2017, the ICC received notice that Sudanese President Al-Bashir was going to attend the League of Arab States Summit on 29 March 2017. The ICC’s Registry immediately requested Jordan “to cooperate with the Court in the arrest and surrender of Omar Al-Bashir, in the event that he enters Jordanian territory.” On 30 June 2017, Jordan submitted its arguments in a note verbale to the Registry stating that “al-Bashir enjoyed immunity.”

On 11 December 2017, the ICC found that Jordan had failed to execute the Court's request for al-Bashir’s arrest and his surrender while he was on the Jordanian territory and decided to refer the matter to the ASP and UNSC. In December, the ICC issued the decision of non-compliance, stating that as “Sudan is not a party to the 1953 Convention on the Privileges and Immunities of the

Arab League; the ICC does not consider Jordan’s arguments on al-Bashir’s immunity and its failure to arrest him on the Jordanian territory.”

On 12 March 2018, Jordan appealed the decision and stated that “Jordan fully subscribes to the importance of the fight against impunity and the need to punish those responsible for crimes within the jurisdiction of the Court. However, this cannot be done at the expense of fundamental rules and principles of international law aimed at securing peaceful relations among States.” The Appeals Chamber invited Sudan, al-Bashir, other states and international organizations as well as law experts to submit observations on the questions raised in the appeal.

Campaign to arrest al-Bashir

Despite the ICC's arrest warrants, al-Bashir’s continued to travel to the territories of ICC States Parties and ICC Non-State Parties alike. For States Parties to the Rome Statute of the ICC, this represents a failure to cooperate in executing a warrant of arrest. Many international and national civil societies campaigned to bar al-Bashir’s entry to their states or arrest him on their states’ territory.

The Coalition for the ICC sent letters to the Jordanian authorities, urging to arrest al-Bashir without delay and called the State Parties to the Rome Statute, attending the League of Arab Summit 2017, to avoid all contact with the ICC fugitive, as recognition of the seriousness of the charges against him.

Recent Developments

On 11 April 2019, after months of nationwide protests, the First Vice President and Defense Minister of Sudan, Mr. Ahmed Ibn Auf, announced the arrest of al-Bashir and his removal from power. Although, the creation of a transitional military council to lead the country for the next two years is underway, al-Bashir has not been surrender to the ICC. On April 16 the military announced al-Bashir’s transfer from the presidential palace to the Kobar prison in Khartoum where he is kept under solitary confinement.

Coalition for the ICC with its member organization continues to urge the Sudan authorizes to surrender al-Bashir to the ICC so he can face justice.

Reaction to the ICC’s decision on Jordan’s Appeal

Human Rights Watch: ICC: Jordan Was Required to Arrest Sudan’s Bashir

IJMonitor: ICC Appeals Chamber Judgment on Jordan

Just Security: A Confusing ICC Appeals Judgment on Head-of-State Immunity

Elisions and Omissions: Questioning the ICC’s Latest Bashir Immunity Ruling

OpinioJuris: A Thought Experiment about Complementarity and the Jordan Appeal Decision

Ghana News Agency: ICC still has Sudan’s al-Bashir in its sights

Justice Info: Jordan loses ICC appeal over failure to arrest Bashir

EJIL talk: ICC Appeals Chamber Holds that Heads of State Have No Immunity Under Customary International Law Before International Tribunals

Stephanie Vandenberg, Editor of International Justice Tribune

Coalition for the ICC Press Release: Sudan and the international community must ensure al-Bashir faces justice