THE HAGUE, Netherlands (CN) – The International Criminal Court on Monday upheld its prior ruling that Jordan should have arrested former Sudanese President Omar al-Bashir when the accused war criminal traveled there two years ago, but reversed its referral of the Middle Eastern country to the United Nations Security Council.
Al-Bashir is charged with war crimes and crimes against humanity but the question before the Netherlands-based ICC was whether Jordan violated the Rome Statute, which established the United Nations court, by declining to arrest al-Bashir when he traveled to the country in 2017.
Al-Bashir came to power in 1989 when, as a member of the Sudanese army, he took part in a coup against the democratically elected government of Prime Minister Sadiq al-Mahdi. The coup took place during a 21-year civil war that ended in 2005 with a peace agreement signed by al-Bashir.
He was re-elected three times until he was himself ousted in a coup last month.
During al-Bashir’s tenure, separatists groups formed in Sudan’s western Darfur region who felt they were being mistreated by the national government. In 2003, they kidnapped a Sudanese Air Force general during an attack on a military airfield, which led to the government arming militia groups to attack the rebels. Violence erupted in the region.
Darfur has long been a fragile region. The southern part is dominated by nomadic herders who identify as Arab and are often Christians, while the northern population identifies as African, are more heavily involved in agriculture and are generally Muslim.
The charges against al-Bashir stem from accusations that he intentionally used violence against civilians in reacting to the rebel groups. Forces armed by his government are alleged to have pillaged towns, engaged in a campaign of sexual violence against civilian women, attempted the genocide of the Fur, Masalit and Zaghawa minority groups, and, among other things, poisoned water wells in an effort to drive civilians out of the region.
Arrest warrants were issued for al-Bashir in 2009 and 2010 by the ICC.
During the first pretrial hearing, al-Bashir was not charged with genocide but the court reversed itself in 2010 and issued a second arrest warrant, this time including a genocide charge. It was the first time in history the ICC issued an arrest warrant for a sitting head of state.
However, the ICC itself has no authority to arrest suspects and must rely on one of the 123 member states to extradite defendants.
Since the warrants were issued in 2009 and 2010, al-Bashir made numerous trips abroad, including to countries that are parties to the ICC, including South Africa, Uganda and Jordan. As member states, those nations are supposed to arrest people charged by the ICC if they travel into their territory.
Al-Bashir traveled to Jordan in March 2017 to attend an annual Arab League summit. Mahmoud Daifallah Mahmoud Hmoud, Jordan’s representative to the United Nations, said in a statement at the time that the Middle Eastern country was unable to arrest al-Bashir because he was a sitting head of state.
After Jordan decline the ICC’s request to arrest al-Bashir, the court held hearings in June 2017, where Jordan again defended its actions by saying al-Bashir had sovereign immunity as a head of state “under the rules of customary international law.” Further, Article 97 of the Jordanian constitution guarantees immunity to heads of state.
The ICC rejected this argument in its December 2017 decision, finding Jordan could not offer its own interpretation of the law. It also decided to refer the matter to the United Nations Security Council.
Jordan appealed and the court heard more arguments in September 2018.
On Monday, Judge Chile Eboe-Osuji read the ICC’s ruling aloud during an oral summary. The court upheld its earlier decision and found that that al-Bashir was not entitled to immunity from arrest as a head of state.
“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,” Eboe-Osuji said, reciting the court’s unanimous opinion.
However, the ICC found it had erred in its previous judgment that Jordan should be referred to the U.N. Security Council. Jordan argued on appeal that it had tried to resolve this dispute with the ICC and that the court was treating Jordan differently than it treated South Africa in a previous case.
Al-Bashir traveled to Johannesburg to attend an African Union summit in 2015. The government of South Africa also declined to arrest him at the behest of the ICC and a human rights non-governmental organization, the Southern Africa Litigation Centre, filed an emergency appeal in a South African court to force al-Bashir’s arrest. South Africa’s high court barred al-Bashir from leaving, but the government allowed his plane to depart abruptly less than a day after the order was released.
That case was also heard by the ICC, which ruled in 2017 that South Africa should have arrested al-Bashir. But the court declined to refer the case to the U.N. because South Africa had consulted with the court about what its obligations were and a domestic court had already ruled against the government.
“The chamber was not convinced that a referral would be warranted in order to achieve cooperation from South Africa, in the light of the fact that South Africa’s domestic courts have already found South Africa to be in breach of its obligations under its domestic legal framework,” the court wrote at the time.
In Jordan’s case, the ICC ruled Monday that “a state may indeed approach the consultation process in the manner of stating a preliminary position that it sees as posing an obstacle to cooperation, thus engaging the question to be resolved.” But it also said “it would be better for a state to approach the consultation process in an unequivocal manner of asking questions in need of resolution.”
Last month, al-Bashir was removed from power in a military coup brought about after months of protests in the country. Omar Zein al-Abideen, a senior military official in the new government, told news agency Al Jazeera that there are no plans to extradite the former leader. “We will not extradite any Sudanese citizens,” he said in an interview.
The ICC does not prosecute defendants who aren’t present in the courtroom, so the case will remain in the pre-trial phase until al-Bashir is arrested.