ICC Appeals Chamber confirms Jordan’s non-cooperation but reverses the decision referring it to the ASP and UNSC
By a jugement of 6 May 2019, the ICC AC decided unanimously to confirm the decision of ICC PTC II which found that Jordan, a State Party to the ICC Rome Statute, had failed to comply with its obligations by not arresting Mr Omar Al-Bashir (then President of the Republic of the Sudan) and surrendering him to the ICC while he was on Jordanian territory attending the League of Arab States’ Summit on 29 March 2017.
It ruled that:
“There is neither State practice nor opinio juris that would support the existence of Head of State immunity under customary international law vis-à-vis an international court. (…) UNSC Resolution 1593 gives the Court power to exercise its jurisdiction over the situation in Darfur, Sudan. (…) As Sudan is obliged to ‘cooperate fully’ with the Court, (…) Sudan cannot invoke Head of State immunity if a State Party is requested to arrest and surrender Mr Al-Bashir. (…) Accordingly, there was also no immunity that Jordan would have been required to ‘disregard’ by executing the Court’s arrest warrant.”
Cf. ICC-02/05-01/09-397, Judgment in the Jordan Referral re Al-Bashir Appeal, 6/5/2019, https://www.icc-cpi.int/CourtRecords/CR2019_02593.PDF