Assembly of the States Parties to the International Criminal Court on Non-Cooperation

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The information session was held to give a brief account of the recent judgment by the Appeals Chamber of the International Criminal Court (ICC) on 6 May 2019. It arose from Jordan’s appeal against the Pre-Trial Chamber’s earlier ruling that the country has breached its obligation as an ICC member by failing to arrest and surrender Sudan’s ex-president Omar Al-Bashir to the ICC when he visited Jordan for an Arab League Summit  in 2017, and that Jordan’s non-compliance to the Rome Statute should be referred to the Assembly of States Parties or the UN Security Council (UNSC)  for possible sanctions. Al-Bashir was alleged to have committed multiple counts of crimes against humanity, war crimes and genocide in the Darfur region of Sudan.

On appeal, Jordan argued that Al-Bashir was entitled to immunity pursuant to the principle of sovereign equality under customary international law –  sovereign States are prevented from exercising their criminal jurisdiction upon the heads of other sovereign States. ICC was required to obtain a waiver of immunity from Sudan before requesting Jordan to arrest Al-Bashir under Article 98 of the Rome Statute.

Jordan also argued that Article 27 of the Rome Statute – which places restrictions on State’s immunity (including abolition of immunity even for Heads of State) does not apply to Sudan, as Sudan is not a party state to the ICC. Moreover, Jordan raised the argument that arresting Al-Bashir will contravene with its inter-states obligation on privileges and immunity under Arabic Convention in 1953.

The Appeals Chamber rejected all arguments and opined that Article 27 reflects the status of customary international law and found that there is no State practice that supports the  Head of State immunity in relation to an international criminal court in the exercise of its proper jurisdiction under customary international law. Moreover, the UNSC Resolution 1593 binds on all UN member states (including Sudan) to fully cooperate with the ICC regardless of whether one is an ICC party or not. The Court also stated that Article 98 does not  accommodate for inter-states immunity.

On the issue of whether the Pre-Trial Chamber had properly exercised its discretion in referring Jordan’s non-compliance with the Rome Statute to the UNSC, the Appeals Chamber found that Jordan had demonstrated intention in engaging with the ICC through seeking consultation from the Court prior to Al-Bashir’s visit to Jordan.

In conclusion, the Appeal Chambers affirmed the earlier ruling that Jordan has failed in exercising its ICC obligations but held that the court’s exercise of discretion in referral was erroneous.

Meeting: Assembly of the States Parties to the International Criminal Court on Non-cooperation

Date/Location: Monday, June 24, 2019; 10:00-12:00; Conference Room 7, New York, NY

Speakers:

Secretariat of the Assembly of States Parties;

Representatives of the International Criminal Court;

Representative of Korean and Senegal

Written By: WIT Representative Peggy Lau

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