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 International Criminal Court

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

March 2018; against a decision of non-cooperation rendered by the Court’s

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

breached its obligation to cooperate with the court by failing to arrest

and surrender the then Sudanese President Omar Al-Bashir pursuant to

two warrants of arrests issued against him by the court 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 regarding his immunity from arrest and surrender

by states in cooperation with the court, as Sudan is not a state party to the

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

examines the Appeals Chamber’s decision on the customary international

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 of Security Council Resolution

1593 (2005);and assesses whether or not the decision has helped to clarify

the contentious issue of head-of-state immunity 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 art 86 of the Rome

Statute1by failing to arrest and surrender the then Sudanese President

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

* LLB (University of Zimbabwe) LLM (UNISA) PhD (UKZN). Post-doctoral 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 court had earlier requested Jordan to cooperate

in the arrest and surrender of Al-Bashir3 pursuant to two warrants of

arrest issued against him by the court in 2009 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 in his capacity as head of state

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

arrest and surrender to the court by Jordan.6

It is pertinent to note that the indictment of Al-Bashir by the court

ignited debate regarding his immunity from arrest and surrender 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 immunity from arrest

and surrender largely stemmed from the contradictory 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, whilst art 98(1) provides

that the court must rst obtain the cooperation of a third state for the

waiver of immunity before proceeding with a request 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 under Article 87(7) of the Rome Statute of the

International Criminal Court on the non-compliance by Jordan with the request by

the Court for the arrest and surrender of Omar Al-Bashir’ (11/12/2017) ICC-02/05-

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

3 Ibidpara 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 ‘Warrant of arrest for Omar Hassan Ahmad Al -Bashir’ ICC-

02/05-01/09-1) and the second in July 2010 for genocide (The Prosecutor v Omar

Al-Bashir Pre-Trial Chamber I ‘Second warrant of arrest for Omar Hassan Ahmad

Al-Bashir’ ICC -02/05-01/09-95). The charges against Al-Bashir emanate from the

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

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

Appeal against the ‘Decision under Article 87 (7) of the Rome Statute on the non-

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

Omar Al-Bashir (2018) ICC-02/05- 01/09-326) (hereinafter 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 immunities before the Court by art 27 of the Rome Statute also

applies at the horizontal level where states act in cooperation with the Court). For

a contrasting view see P Gaeta ‘Does President Al-Bashir enjoy immunity 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 Statute of the International Criminal Court

(1998) 2187 U.N.T.S 1990. For a detailed overview of the contradiction between

the two provisions see C Gevers ‘Immunity and the implementation legislation in

South Africa; Kenya and Uganda’ in K Ambos & O Maunganidze (eds) Power and

Prosecution : Challenges and Opportunities for International Criminal Justice in

Sub-Saharan Africa (2012) 85, 94–105; and generally P Gaeta & P Labuda ‘Trying

Has the Appeals Chamber decision in the Jordan

appeal brought nality? 403

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