The Questions for the Appeal
- Whether the Pre-Trial Chamber was wrong to find that the Rome Statute precluded immunity for Mr Al-Bashir as Sudan’s Head of State, in any way that excuses Jordan’s failure to comply with the Court’s request to arrest and surrender him;
- Whether the Pre-Trial Chamber was wrong to find that Security Council resolution 1593 (2005) negated any obligation that Jordan may have under international law to accord immunity to Mr AlBashir as Sudan’s Head of State; and
- Whether the Pre-Trial Chamber’s decision to refer Jordan to the Assembly of States Parties and to the Security Council for noncompliance with the Court’s request was, in any event, an erroneous exercise of the discretion to do so.
(a) the State whose Head of State is being sought for arrest is not a party to the Rome Statute; but,
(b) that State is a Member of the United Nations; and,
(c) is the subject of a Security Council referral to the Court, in the terms of a Chapter VII resolution that obligated that State (Sudan, in this case) to cooperate fully with the Court.
One central question that dominated the discussion in this appeal is does customary practice – accepted as law – in relations amongst nations – otherwise known as customary international law – recognise immunity for Heads of State, which immunity may be asserted to bar this Court from the exercise of its proper jurisdiction?
The Appeals Chamber notes that the Head of State immunity, which Jordan asserts at the instance of Sudan, is based on a manner of immunity that is clearly accepted under customary international law in certain circumstances. But, there is a clear provision in the Rome Statute that precludes immunity before the Court. As indicated earlier, it is article 27(2). It is certainly correct to see that provision in its own form, as a provision in a treaty that binds the parties to it.
The Appeals Chamber finds, however, that the provision represents more than a stipulation in treaty law. The provision also reflects the status of customary international law, as it concerns the jurisdiction that an international criminal court is properly entitled to exercise.
In that regard, the Appeals Chamber finds that there is neither State practice nor an impelled sense of such a practice as law, which would support the existence of Head of State immunity under customary international law, in relation to an international criminal court in the exercise of its proper jurisdiction.
UN Security Council resolution 1593 (2005), concerning whether Sudan could invoke Head of State immunity in relation to the warrants of arrest that the Court issued against Mr Al-Bashir for alleged international crimes in the situation in the Darfur region of Sudan.Resolution 1593 (2005) imposes upon Sudan a specific obligation to ‘cooperate fully’ with the Court. This means in effect that the cooperation regime for States Parties to the Rome Statute is also applicable to Sudan. Since Sudan could not legally rely on the Head of State immunity of Mr AlBashir, the Appeals Chamber considers that there was no need for the Court to obtain the waiver of immunity from Sudan before it could proceed with a request to Jordan for Mr Al-Bashir’s arrest and surrender, in accordance with article 98(1) of the Statute.
Jordan did not comply with its obligation to cooperate with the Court as it was bound to do under the Rome Statute.
Finally, the Appeals Chamber notes that both Jordan and Sudan are parties to the Convention against Genocide. Article I of that Convention provides that the parties to it ‘undertake to prevent and punish’ the crime of genocide. Thus, in view of the allegation of genocide engaged in the second warrant of arrest, Jordan was under an obligation to cooperate in the arrest and surrender of Mr Al-Bashir at the request of the Court; not only because Jordan is a State Party to the Rome Statute, but also by virtue of its being party to the Convention against Genocide.
The Appeals Chamber found that the Pre-Trial Chamber erred when it found that Jordan had not sought consultations with the Court in respect of the referral to the Assembly of States Parties and the UN Security Council.
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