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Prosecutor v. Omar Al-Bashir, Judgment in the Jordan Referral Re Al-Bashir Appeal (Int'L Crim. Ct.)

Published online by Cambridge University Press:  19 December 2019

Thomas Weatherall
Thomas Weatherall*
Affiliation:
Attorney-Adviser, Human Rights and Refugees, Office of the Legal Adviser, US Department of State. JD (Georgetown), PhD (Cantab), MSc (Oxon). The views expressed herein are the author's own and not necessarily those of the US Department of State or the US government.
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Extract

On May 6, 2019, the Appeals Chamber (AC) of the International Criminal Court (ICC) delivered its judgment in Jordan's appeal of the December 11, 2017 decision of the Pre-Trial Chamber (PTC) in Prosecutor v. Al-Bashir. The first and second grounds of appeal concerned whether Jordan had complied with its duty to cooperate with the request of the Court to arrest and surrender Al-Bashir. The third ground of appeal concerned whether the PTC abused its discretion in referring Jordan's noncompliance to the Assembly of States Parties to the Rome Statute (ASP) and the United Nations Security Council (UNSC). Prior to the judgment, ICC PTCs had created divergent jurisprudence regarding the immunity of incumbent heads of state before international courts.

Type
International Legal Documents
Information
International Legal Materials , Volume 58 , Issue 6 , December 2019 , pp. 1177 - 1233
Copyright
Copyright © 2019 by The American Society of International Law

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References

ENDNOTES

1 Prosecutor v. Omar Hassan Ahmad al Bashir, No. ICC-02/05-01/09 OA2, Judgment in the Jordan Referral re Al-Bashir Appeal (May 6, 2019) [hereinafter, 2019 Judgment].

2 SC Res. 1593 (Mar. 31, 2005).

3 Prosecutor v. Omar Hassan Ahmad al Bashir, Case No. ICC-02/05-01/09-1, First Warrant of Arrest (Mar. 4, 2009); Prosecutor v. Omar Hassan Ahmad al Bashir, Case No. ICC-02/05-01/09-95, Second Warrant of Arrest (July 12, 2010).

4 2019 Judgment, supra note 1, ¶ 13.

5 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 (ICC-02/05-01/09-309), Pre-Trial Chamber II (Dec. 11, 2017).

6 2019 Judgment, supra note 1, ¶ 215.

7 Id. ¶ 113.

8 Id. ¶ 117.

9 Id. ¶¶ 103, 122. See Rome Statute art. 27(2) (“Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.”).

10 Id. ¶¶ 124–27.

11 Id. ¶ 130.

12 Id. ¶ 135.

13 Id. ¶ 141.

14 Id. ¶ 143.

15 Id. ¶ 144.

16 Id. ¶ 213 (Judges Ibáñez and Bossa dissented from this part of the decision).

17 Id. ¶¶ 184, 191 ((i) that the state concerned failed to comply with a request to cooperate; and (ii) that this noncompliance is grave enough to prevent the Court from exercising its functions and powers under the Statute).

18 Id. ¶ 202.

19 Id. ¶ 203.

20 Id. ¶¶ 207, 209. See Decision under Article 87(7) of the Rome Statute on the Non-Compliance by South Africa with the Request by the Court for the Arrest and Surrender of Omar Al-Bashir (ICC-02/05-01/09-302), Pre-Trial Chamber II (July 6, 2017).

21 Id. ¶ 216.

22 Corrigendum to the Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir (ICC-02/05-01/09-139-Corr), Pre-Trial Chamber I (Dec. 13, 2011), ¶¶ 36–43.

23 Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir's Arrest and Surrender to the Court (ICC-02/05-01/09-195), Pre-Trial Chamber II (Apr. 9, 2014), ¶¶ 25–31.

24 The decision of the AC is not technically binding on other chambers of the ICC or the AC itself in future cases: see Rome Statute art. 21(2) (“The Court may apply principles and rules of law as interpreted in its previous decisions.”) (emphasis added).

25 See contra 2019 Judgment, supra note 1, ¶ 97 (“The central issue in this appeal is whether Mr Bashir, in his capacity as Head of State of Sudan, enjoyed immunity before this Court which Jordan was obligated to respect in the absence of a waiver from Sudan.”).

26 See Thomas Weatherall, Inviolability Not Immunity, 17 J. Int'l Crim. Just. 45 (2019).

27 2019 Judgment, supra note 1, Joint Concurring Opinion of Judges Eboe-Osuji, Morrison, Hofmański and Bossa, ¶ 430 (referring to the “bilateral (or horizontal) obligation of inviolability of the immunity of Mr. Al-Bashir (as Sudan's Head of State)”).

28 2019 Judgment, supra note 1, ¶ 115.

29 See, e.g., id. ¶ 125 (“article 27(2) it relevant not only to the adjudicatory jurisdiction of the Court, but also to the Court's ‘enforcement jurisdiction’ vis-à-vis State Parties to the Rome Statute”); ¶ 127 (“in such situations, the requested State Party . . . is only lending assistance to the Court in its exercise of proper jurisdiction”).

30 Id. ¶ 117.

31 Id. ¶¶ 122, 143.

32 Id. ¶ 123.

33 Id. ¶ 126.

34 Id. ¶¶ 141, 144.

35 Id. ¶ 161.