ICC Rules on Al Bashir’s Immunity and Jordan’s Referral to the Security Council

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Saturday, May 11, 2019
Michael Plachta

In a unanimous judgement made on May 6, 2019, the Appeals Chamber found Jordan did not fulfill its obligations as a State Party to the Statute of the International Criminal Court (ICC), as it failed to arrest former Sudanese President Omar Hassan Ahmad al-Bashir when he was in the country in March 2017. However, the Appeals Chamber was divided on whether this should lead to Jordan being referred to the Assembly of State Parties (ASP) or the United Nations Security Council (UNSC) for not cooperating with the ICC. In a majority judgement on this issue, the Appeals Chamber decided not to refer Jordan to ASP or the Security Council. The core legal issue boils down to whether Head of State immunity finds application in a situation where the Court requests a State Party of the Rome Statute to arrest and surrender the Head of State of another State (in this instance, Sudan), which, while not being party to the Rome Statute, is the subject of a referral to the Court by the UN Security Council and, in terms of Resolution 1593, obliged to fully cooperate with the Court.