Jordan loses ICC appeal over failure to arrest Bashir

2 min 33Approximate reading time

International appeals judges Monday upheld a reprimand of Jordan for failing to arrest former Sudanese president Omar al-Bashir during a visit to the Arab country two years ago.

Amman had appealed a ruling by the International Criminal Court which found that Jordan “failed to comply with its obligations” because it did not detain Bashir in 2017 when he was wanted by the Hague-based tribunal on charges of genocide, war crimes and crimes against humanity.

The ICC’s appeal judges nonetheless eased the blow a bit by reversing a pre-trial chamber judges’ decision to refer Jordan to the UN Security Council and the court’s Assembly of States Parties (ASP) for further measures.

Bashir, 75, was indicted by the ICC in 2009 in connection with fighting in the western region of Darfur, where more than 300,000 people have died and 2.5 million others displaced since 2003, according to UN figures.

Despite two international warrants for his arrest on 10 charges arising from the conflict, Bashir freely attended an Arab League summit in Amman in March 2017.

“By failing to arrest and surrender Mr. Bashir, in circumstances in which Mr. Bashir was entitled to no immunity, Jordan prevented the court from exercising an important power and a fundamental function,” Judge Chile Eboe-Osuji said.

– ‘No immunity’ –

Jordan is a member of the Rome Statute, which underpins the tribunal — established in 2002 to try the world’s worst atrocities — and as such has agreed to comply with the court’s orders.

In a first for the court, Amman last year appealed the ICC’s findings that Jordan had failed to fulfil its legal obligations to seize Bashir, saying it was not obliged to do so.

Jordan’s lawyers argued that Bashir at the time of his visit was a sitting head of state “and therefore immune to arrest,” based on the international legal principle of comity between states.

But Eboe-Osuji said Monday that head-of-state immunity did not stop the ICC — an international court — from exercising its jurisdiction according to its founding document, the Rome Statute.

Easing the verdict on Jordan however, Eboe-Osuji added that the court’s pre-trial judges should not have referred the matter to the Security Council and the ASP.

“The judges’ discretion to refer the case to the UNSC and ASP was tainted,” Eboe-Osuji said.

Amman replied that it was “mulling” the judgement.

It looked in particular at “the part concerning approving the pre-trial chamber’s decision suggesting that Jordan has not cooperated with the court in handing Bashir over, which is rejected by Jordan,” according to a statement released by foreign ministry spokesman Sufyan al-Qudah.

He welcomed the appeals judges’ decision to nullify the “unfair, discriminatory and arbitrary decision” by pre-trial judges to refer the issue to the Security Council and ASP.

“Jordan has been a strong supporter of the ICC since its establishment and was the first country in the Middle East to ratify its statute,” the spokesman noted.

Over the last decade Bashir has travelled to a number of countries which did not arrest him, including ICC member states such as South Africa and Jordan.

The 75-year-old Bashir has always denied the ICC charges.

He was toppled last month after 30 years of iron rule in Sudan, raising hopes that he would finally be extradited to The Hague to stand trial.

– ‘Fugitive’ –

Human rights groups applauded Monday’s decision saying “today the ICC found that heads of state sought on charges by the court cannot be exempt from arrest.”

Elise Keppler, an associate director at Human Rights Watch also called for Bashir to be handed over to the ICC.

“Whether president or prisoner in Sudan, Omar al-Bashir remains a fugitive from the ICC on charges of the gravest crimes committed in Darfur.”

“He should be surrendered to The Hague to face the charges against him,” she said.

But legal experts said it seemed more likely that Bashir would be tried in Sudan, despite Sudanese opposition calls for the African nation to “immediately” join the ICC.

The conflict in Darfur broke out when ethnic minority groups took up arms against Bashir’s Arab-dominated government, which in turn launched brutal counter-insurgency operations.

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