Darfur’s armed conflict began in February of 2003, when rebel groups, the Sudanese Liberation Movement, and the Justice and Equality Movement began to fight the Sudanese government, in response to increased marginalization and oppression of the non-Arab population in Darfur. Omar Al-Bashir, former president of the Republic of Sudan, garnered international attention, following the brutal massacre of Darfurians by the Janjaweed militia and the aftermath of the conflict, which resulted in a death toll of roughly 300,000 and displaced approximately 2.5 million people.1This paper will refer to the case of South Africa and Jordan to examine the legal and political challenges in reconciling the obligation of States under international customary law in upholding jus cogens laws—principles from which no derogation is allowed—the right to immunity enjoyed by visiting Head of State Omar Al-Bashir in the aforementioned host States, and the issues surrounding the ICC’s decisions of non-compliance against Jordan.2
            In March of 2005, under the recommendation of the International Commission of Inquiry on Darfur to the UN, the United Nations Security Council (UNSC), drafted resolution 1593, which referred the situation, in Darfur, to the International Criminal Court (ICC) following reports stating that there existed sufficient grounds for a formal investigation of Omar Al-Bashir’s alleged criminal activity.3 The Office of the Prosecutor had gathered adequate information, collected a number of documents, and met the statutory requirements for opening an investigation of Al-Bashir’s alleged war crimes, by June of 2005. 

            In March 2009, the Pre-Trial Chamber issued the first warrant for Al-Bashir’s arrest and charged 4 the former president with five counts of crimes against humanity: murder, extermination, forcible transfer, torture, and rape; two counts of war crimes: intentionally directing attacks against a civilian population and pillaging.5 In July 2010, following an appeal from the Prosecutor with respect to the Chamber’s exclusion of genocide from the first set of charges,6 the Pre-Trial Chamber I revised its decision and issued a second arrest warrant charging President Al-Bashir with three counts of genocide.7 Although it is now nearly a decade since the issuance of the arrest warrants, Al-Bashir continues to evade prosecution by the ICC.8

         The ICC’s jurisdiction was designed 9 to work in harmony with the UN and the national jurisdiction of State Parties, in an effort to, cooperate with  and hold nations and the international community accountable in, the fight against impunity and the protection of the “peace, security, and well-being of the world”.10 The ICC’s institutional framework, however, inherently poses a set of challenges to the fulfillment of its central aims. Its possession of legal personality and power to exercise its jurisdiction without its own law enforcement body may serve as an impediment to the Court’s ability to try charged individuals. The Court is subject to the assumption of cooperation by State Parties through their obligation to exercise national jurisdictional powers to arrest and surrender individuals to the Court for trial. This is ultimately dependent on the timeliness, or willingness, of State Parties to the ICC to do so without compromising the Court's ability to fulfill its functions.

            Within the last nine years, Omar Al-Bashir traveled to more than thirty countries, both State Parties and non-State Parties11 to the ICC, and still remains at large.12 Article 86 of the Rome Statute obliges State Parties to cooperate with the ICC.13 Jordan and South Africa, ratifying State Parties to the ICC, have hosted president Al-Bashir for the purpose of his attendance the Arab League’s and the African Union’s regional summits, respectively. The ICC, therefore, relied on State Parties, Jordan 14 and South Africa, to exercise their jurisdiction to arrest Omar Al-Bashir and surrender him to the ICC in the event of his landing on their respective territories.

          Failure of member States to arrest a subject wanted by the ICC is a violation of provisions under Part 9 of the Rome Statute.15 As a result, the ICC Pre-Trial Chamber II invoked Article 87(7) and subsequently produced “decision(s) under article 87(7) of the Rome Statute on the non-compliance with the request by the Court for arrest and surrender of Omar Al-Bashir” by South Africa in July of 2017 and Jordan in December of 2017.16 While, the ICC did not refer South Africa, it referred Jordan to17 the UN Security Council. 18,19 20, 21

           While the matter remains complex, there are general deductions that can be made proceeding from the recent developments in jurisprudence, more definitive literature on the matter, and the existence of new legal bodies within the international community. Preliminarily, the Rome Statute resolves the lack of clarity in much of the previously referenced literature.

          Although it is clear,22  in theory, that the status of jus cogens--by virtue of its quality of non-derogation—triumphs over treaties and customary law, namely, the accordance of immunity to States and their officials. As such, jus cogens has been challenged23, 24  in previous cases and could continue to be challenged vis-a-vis more conservative judgments on such matters. The immunity of Heads of States remains a pillar of customary international law and is continually invoked to protect individuals who enjoy immunity from crimes. Nonetheless, the ICC is the institution tasked with safeguarding against jus cogens crimes.

            Key arguments presented by Jordan and the African Union (AU) on the decisions of non-compliance against Jordan included: (1) Jordan’s obligations, by the provisions of the Vienna Convention on the Law of Treaties, to provide immunity to Al-Bashir as mandated by the Arab League charter (2) the conflation of the Court’s jurisdiction with the obligation of State parties to cooperate (3) the Court was not discretionary in its decision to refer Jordan to the United Nations Security Council (UNSC).

            The key arguments presented by the African Union (AU), on the decision against Jordan, are as follows: (1) the ICC should use discretion with regards to the interpretation of the Statute on the question of immunity to “avoid destabilizing African states and violating their sovereignty under international law”25; (2) there are no exceptions to the rule that Heads of State enjoy personal immunity (ratione personae), including in instances of crimes falling within the jurisdiction of the Court or jus cogens crimes”26; (3) the obligation to cooperate in the arrest and surrender of a Head of non-State Party is not applicable under Article 2727; and lastly, (4) none of the theories provided by ICC: (i) Article 27 waives immunity from foreign national criminal jurisdiction; (ii) UNSC Resolution 1593 implicitly waives immunity of President Al-Bashir; (iii) UNSC Resolution 1593 renders Sudan a State Party; (iv) the Genocide Convention waives the immunity of Al-Bashir are “legally sound28 ”29 , according to the AU.30

 

          The main limitation of the Rome Statute is that its provisions are binding only upon ratifying State parties. This 31 limitation is far from absolute, as Sudan is not a party to the Rome Statute32 . Despite this, the ICC has charged Al-Bashir with various international crimes, the most serious of which is genocide. However, the most important measure taken on behalf of the ICC permitting it to gain jurisdiction over Sudan and to invoke the cooperation of ratifying states in arresting Al-Bashir was Resolution 1593 passed by the UN Security Council in 2005. The Resolution features a series of recommendations, decisions, and acknowledgments taken in regards to the Al-Bashir case. There are key points addressed in the resolution which deserve greater attention: 1) the decision to refer the situation in Darfur to the ICC prosecutor; 2) the clause declaring that Sudan “shall cooperate fully with and provide necessary assistance to the Court” and while recognizing this a non-obligation, the UNSC strongly urges assistance from non-Parties to the Statute of; 3) the reservation of the UNSC “to remain seized of the matter”33

          A recurring problem emphasized by the AU and Jordan in this Resolution is the lack of clarity surrounding what “cooperation” entails and whether cooperation, as required of Sudan in this resolution, implies a loss of immunity. The UNSC has not explicitly or implicitly addressed the question of Sudan’s immunity. This is an argument at the center of the appeal, provided by Jordan and the opinion of the African Union as an invitee.

          The core issue regarding Resolution 1593  involves the UNSC’s decision to totally surrender the Darfur matter to the ICC. As a result, the Courts wielded absolute jurisdictional power over the matter, which resulted in the subversion of treaty conventions and protocols under customary international law—to which Jordan and South Africa are also obliged—and of the provisions of the Rome Statute itself. In essence, the ICC refers explicitly to its Statute and renders it the ultimate authority on the matter.

          Among the fundamental principles in international law, governing the relations and status between States, is legal equality. According to Antonio Cassese, a jurist specializing in public international law claims that “legal equality implies that, formally speaking, no member of the international community can be placed at a disadvantage: all must be on the same footing.”34 The ICC took a further measure against Jordan and none against South Africa, regarding Jordan’s and South Africa’s failure to arrest and deliver Al-Bashir.  The ICC only referred Jordan to the UNSC as a result of non-compliance. 

          There exists an obvious imbalance in the outcomes received by Jordan and South Africa under the same decision filed by the Court. It is arguable that the ICC has undermined some of the assumptions behind the principle of legal equality. The Court’s rationale behind the decision to refrain from referring South Africa to the Assembly of State Parties and the UNSC was that it was “not warranted as a way to obtain cooperation”. Jordan echoed this grievance and referred to it as “differential treatment in like circumstances” and “a manifest abuse of the Chamber’s discretions”.35, 36

          In the case of the African States and the ICC, a tacit political rift seems to be at play. The majority of State Parties to the Rome Statute are African countries.37 The concern posed by the African Union on potential disruptions to the stability of African states and their respective sovereignty can be supported by the number of African officials currently in ICC custody. This created great tensions between the ICC and the AU, triggering the notion of an “Africa bias” and impelling the AU to create a series of resolutions encouraging African States to “defy the ICC’s arrest warrant for Al-Bashir”.38 As a measure against this perceived bias from the ICC towards African leaders, the AU devised the Malabo Protocol which aspires to establish a regional international court within its Court of Justice and Human Rights, challenging the jurisdiction and the mandate of the ICC.39

          The Court provided contradictory, inaccurate, and, in some cases, conflated arguments on the questions of Sudan’s waiver of its immunity, on the Court’s jurisdiction and foreign jurisdictions, and on the obligation of Member States in arresting Omar Al-Bashir. The ICC invoked Article 27 of the Rome Statute to hold Member States obliged to using their domestic jurisdictions to arrest Al-Bashir without the consent of Sudan, whose consent is necessary, as stated in Article 98. The AU and Jordan argued against this; Article 27 is only applicable to the Court’s jurisdiction and it does not negate the obligations impelled under International customary law that Jordan and South Africa must fulfill towards Sudan. On Article 98, Jordan claimed:

“The Chamber is placing Jordan in the untenable position of having two irreconcilable legal obligations. The Chamber's error in this regard rests upon an apparent assumption that, by becoming a party to the Rome Statute, Jordan assumed obligations that supersede all its other legal obligations, even vis-a-vis States that are not parties to the Rome Statute.”40

          The Court, in reference to Resolution 1593, conflated “Sudan shall cooperate fully” to mean (1) waiver of Sudan’s immunity and (2) that Sudan is now analogous to a State Party. The AU makes arguments on various accounts challenging this assertion. The AU instead argues that the Security Council is aware of the dispute regarding the interpretation of the language provided by “shall cooperate fully”. If the UNSC felt its provisions were misunderstood, it should rectify the confusion surrounding the interpretation of Article 13 of the Resolution.

          There remain a number of legal precedents under international customary law which challenge the ICC’s decisions on the non-compliance of South Africa and Jordan, and more broadly, the legal obligation of both member and non-member States to the Rome Statute in cooperating with the Court in the arrest and delivery of Omar Al-Bashir. This case demonstrates the contemporary legal challenges in the attempt to reconcile the immunity of Heads of States, as accorded by international law with the imperative of the international community as a whole in protecting jus cogens rules and punishing international crimes, which violate them. The arguments of Jordan and the AU remain valid, posing serious challenges to the Court.

          As such, the ICC occupies a difficult space in the fight against impunity, whereby operating between legal convention and inconsistent, ambiguous notions of State obligation reveals the structural flaws latent in the framework of the ICC. The Court’s capacity as a judicial and legal institution without its own enforcement body, and the existence of provisions within its Statute contrary to its central aims, namely, Article 98, complicates the fulfillment of its own aims. This is exacerbated by the international community’s firm resistance to challenges against the customs of immunity. Such practices debilitate the Court from properly functioning and cause it to undermine itself as it resorts to questionable interpretations of its own Statute

          Most obviously, the consequence of such action results in the failure to arrest Omar Al-Bashir for heinous crimes committed. As Sudan currently undergoes due processes of transitional justice, the former president's deposition on the 11th of April, 2019 will present more challenges to this objective, among which is negotiating, if not competing, with Sudanese jurisdiction for the trial of Al-Bashir. Moreover, the legal and political quandaries presented in the Al-Bashir case raise pertinent questions on the status of jus cogens in international law, whether it can be brought closer to the realm of practice than in theory, and the role and evolution of legal jurisprudence in facilitating that process for years and cases to come.

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                                                                                     REFERENCES

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African Union Charter, (1953).

Cassese Antonio, International Law (2004).

Charter of the League of Arab States, (1945).

Escobar Concepcion Hernandez, Heads of States Immunities for International Crimes: Prospects for Consensus or       

            Irreconcilable Impasse? (2015).

ILC Draft Articles on State Responsibility, (1999).

ILC Draft Articles on State Responsibility, (2001).

International Court of Justice, Arrest Warrant of 11 April 2000, https://www.icj-cij.org/files/case-related/121/13743.pdf.

International Court of Justice, Application of Genocide Convention Judgment (2007), https://www.icj-cij.org/files/case-

            related/91/091-20070226-JUD-01-00-EN.pdf.

International Criminal Court, African Union Submission on Jordan Non-Compliance, https://www.icc-

            cpi.int/CourtRecords/CR2018_03735.PDF.

International Criminal Court, Pre-Trial Chamber II South Africa, https://www.icc-

             cpi.int/CourtRecords/CR2017_04402.PDF.

International Criminal Court, Pre-Trial Chamber II Hashemite, Kingdom of Jordan, https://www.icc-

            cpi.int/CourtRecords/CR2017_07156.PDF.

Jordan's Appeal to ICC, https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-02/05-01/09-331.

Frank Kuwonu, Beyond the threats of withdrawal (2017),

             https://www.un.org/africarenewal/magazine/may-july-2017/icc-beyond-threats-withdrawal.

Omar Al-Bashir Travels, (2018), https://www.theguardian.com/global-development/2018/oct/21/omar-

             bashir-travels-world-despite-war-crime-arrest-warrant.

Persona Non Grata - Omar Al-Bashir, (2013), https://foreignpolicy.com/2013/09/23/persona-non-grata/.

Rome Statute of the International Criminal Court, (1998).

UN Security Council Resolution 1593 , (2005), https://www.icc-cpi.int/NR/rdonlyres/85FEBD1A-29F8-

             4EC4-9566-48EDF55CC587/283244/N0529273.pdf.

United Nations, Convention on the Prevention and Punishment of the Crime of Genocide,

            http://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention on the Prevention and   

            Punishment of the Crime of Genocide.pdf.

United Nations, Genocide Prevention, http://www.un.org/en/genocideprevention/genocide.html.

United Nations, IMMUNITY OF STATE OFFICIALS FROM FOREIGN CRIMINAL JURISDICTION,

            http://legal.un.org/ilc/documentation/english/a_cn4_601.pdf.

United Nations, UN General Assembly, Resolution 96, https://documents-dds-

            ny.un.org/doc/RESOLUTION/GEN/NR0/033/47/IMG/NR003347.pdf?OpenElement.

Vienna Conventions on Diplomatic Relations,http://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf.

 

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