Immunity before the International Criminal Court: Has the Appeals Chamber decision in the Jordan appeal brought finality?

• Published date: 03 November 2020
• Pages: 402-424
• Author: Mushoriwa, L.
• Date: 03 November 2020
• Citation: (2020) 33 SACJ 402

Immunity before the International

Criminal Court: Has the Appeals

Chamber decision in the Jordan

appeal brought nality?

LINDA MUSHORIWA*

ABSTRACT

On 6 May 2019, the Appeals Chamber of the Intern ational Crimi nal Court

(ICC or ‘the Court’) rendered a dec ision in an appeal lodged by Jordan in

March 2018; against a decision of non- cooperation rendered by the Cour t’s

Pre-Trial Chamber (PTC) II in Dece mber 2017. PTC II had ruled that Jordan

breached its obligation to cooperate wit h the court by faili ng to arrest

and surrender the then Sud anese President Omar A l-Bashir pursu ant to

two warrants of ar rests issued agai nst him by the cour t in 2009 and 2010.

Al-Bashir had v isited Jordan in March 2017 to attend an Arab Leag ue meeting.

The indictment of A l-Bashir by the court whilst he was s till the head of state

of Sudan ignited debate regard ing his immun ity from arrest a nd surrender

by states in cooperation wit h the court, as Sudan i s not a state part y to the

Rome Statute of the Intern ational Criminal Court (Rom e Statute). This article

examines the Appea ls Chamber’s decision on the c ustomary inter national

law status of head-of-st ate immunity, the relationship between art 27(2) and

art 98(1) of the Rome Statute and the effect o f Security Cou ncil Resolution

1593 (200 5) ; and assesse s whether or not the decision has helped to cla rify

the contentious issue of head-of- state immunit y before the court.

1 Introduction

In December 2017, the ICC’s Pre-Trial Chamber (PTC) II ruled that

Jordan had breached its obligation in terms of ar t 86 of the Rome

Statute1 by failing to arrest and sur render the then Sudanese President

Omar Al-Bashi r to the court when he visited Jordan to attend an Arab

* LLB (University of Z imbabwe) LLM (UNISA) Ph D (UKZN). Post-doc toral research

fellow (South African Re search Chair in Inter national Law, Faculty of Law, University

of Johannesburg).

1 Article 86 of t he Rome Statute provides that ‘States pa rties shall, in accordance with

the provisions of the St atute, cooperate fully with the Cou rt in its investigation and

prosecution of cri mes within the jurisdict ion of the Court.’

402

(2020) 33 SACJ 402

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League Meeting.2 The cour t had earlier requested Jordan to cooperate

in the arrest and sur render of Al-Bashir3 pursua nt to two warrants of

arrest issued against h im by the court in 20 09 and 2010.4 In March

2018, Jordan lodged an appeal against PTC II’s decision.5 The main

issue on appeal was whether Al-Bashir i n his capacity as head of state

of Sudan, which is not party to t he Rome Statute, was immune from

arrest and surrender to the cour t by Jordan.6

It is pertinent to note that the indic tment of Al-Bashir by the cour t

ignited debate regarding his immun ity from arrest and su rrender by

states in cooperation with the cour t, as Sudan is not a state party to the

Rome Statute.7 The debate regarding Al-Bashir’s immun ity from arrest

and surrender largely stemmed from the contr adictory provisions in

art 27(2) and art 98(1) of the Rome Statute. Article 27(2) provides for

the irrelevance of immunities before the ICC, wh ilst art 98 (1) provides

that the court must rst obt ain the cooperation of a third s tate for the

waiver of immunity before proceeding with a req uest for arrest and

surrender.8

2 Situation in Dar fur, Sudan in the case of The Pros ecutor v Omar Hassan Ahmad Al

Bashir ICC-02 /05-01/09 (‘Decision unde r Article 87(7) of the Rome St atute of the

International C rimina l Court on the non- compliance by Jordan wit h the request by

the Court for the ar rest and surre nder of Omar Al- Bashir’ (11/12/2017) ICC-02/05-

01/09-309) 11 December 2017 hereinaf ter Jordan decision.

3 Ibid para 5.

4 The ICC issued two war rants of arrest against t he former Sudanese President Omar

Al-Bashir w hen he was still the incumbent head of s tate of Sudan, the rst in March

2009 for war cri mes and crimes against hum anity (The Prosecutor v Omar Al -Bashir

Pre-Trial Chamber I ‘War rant of arrest for Om ar Hassan Ah mad Al -Bash ir’ ICC-

02/05-01/09-1) and the second in Ju ly 2010 for genocide (The Prosecutor v O mar

Al-Bashir Pre-Trial Chamber I ‘Second wa rrant of arre st for Omar Hassan A hmad

Al-Bashir ’ ICC -02/05- 01/09-95). The charge s against Al -Bashir eman ate from the

armed conic t in Darfur, Sudan which start ed in early 2003.

5 Prosecutor v Omar A l-Bashir ICC-02/05- 01/09 (The Hashemite Kingdom of Jorda n’s

Appeal against t he ‘Decision under A rticle 87 (7) of the Rome St atute on the non-

compliance by Jordan wit h the request by the cour t for the arrest and surrender of

Omar Al-Ba shir (2018) ICC-02/05- 01/09-326) (herei nafter appeal br ief).

6 Ibid para 97.

7 See for example D Akande ‘ The legal nature of Securit y Council referrals to the ICC

and its impact on A l-Bashir’s immunities’ (20 09) 7 J Internat’l Crim Jus 333 (arguing

that the removal of im munities before t he Court by art 27 of t he Rome Statute als o

applies at the horizonta l level where states act in co operation with the C ourt). For

a contrasting view s ee P Gaeta ‘Does Pre sident Al-Bashi r enjoy immunit y from

arrest?’ (20 09) 7 J Internat’l Cr im Jus 315 (arguing that Al -Bashir was im mune from

arrest and sur render by states in terms of art 98 (1) of the Rome Statute.

8 See art 27(2) and art 98(1) of the Rome Statut e of the Internation al Crimi nal Court

(1998) 2187 U.N.T.S 1990. For a detailed overv iew of the contradict ion between

the two provisions see C G evers ‘Immunit y and the implementat ion legislation in

South Afric a; Kenya and Uganda’ in K Amb os & O Maunganidze (eds) Power and

Prosecution : Challe nges and Oppor tunities for Interna tional Criminal Jus tice in

Sub-Saharan Africa (2012) 85, 94–105; and general ly P Gaeta & P Labuda ‘Tr ying

Has the Appeals Chamber decision in the Jordan

appeal brought nality? 403

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