On 4 March 2000, the first warrant was issued for Omar Hassan Ahmad Al Bashir
for his arrest, while the second was issued on 12 July 2010. Pre-Trial Chamber
I, while putting in circulation the warrants, claimed that there were judicious
and compelling grounds to believe that:
Between March 2003 and at least 14 July 2008, there was a prolonged armed
conflict of no external nature in Darfur between the Government of Sudan (GoS)
and several coordinated armed groups, notably the Sudanese Liberation Movement /
Army (SLM / A) and the Justice and Equality Movement (JEM). The operation was
undertaken by Government of Sudan proxies, including the Sudanese Armed Forces
and their allied Janjaweed militias, the Sudanese Police Forces, the National
Intelligence and Security Service (NISS) and the Humanitarian Aid Commission (HAC).
This lasted at least until 14 July 2008, the date of filing of the prosecution
Government of Sudan S forces allegedly committed crimes against humanity, war
crimes and genocide crimes during the campaign, and in particular: carried out
numerous illegal assaults.
The arrest warrants for Omar Al Bashir mention ten
counts as indirect co-perpetrator, including on the grounds of his actual
criminal responsibility under Article 25(3)(a) of the Rome Statute.
Five allegations of crimes against humanity which includes murder;
extermination; forcible transfer; torture; and rape; Two counts of war crimes:
deliberately directing attacks on a civilian population as such or individual
civilians not participating in hostilities; and pillaging; and Three forms of
genocide: genocide by killing; triggering genocide to cause bodily harm and
mental damage; and genocide by deliberately inflicting conditions of life on
each target group, calculated to cause physical destruction of the group.
Trial Chamber I also has reasonable grounds to believe that: Omar Al Bashir to
be the facto President of the State of Sudan and Commander-in-Chief of the
Sudanese Armed Forces, was the puppeteer of the operation since he was in full
control of all branches of the State of Sudan's apparatus,
Sudanese Armed Forces and all organs mentioned above.
Thus, compelling us to understand the concepts of war crime and crime against
humanity under The Rome Statute in International Criminal Law.
The International Criminal Court, as suggested by its name, is Court that deals
with charged individuals who are alleged to have performed specific offences at
world level. The Court was established in 2002 on the promulgation of the Rome
Statute and is perpetual. The purpose, objective as well as nature of the ICC,
the offences that have been stated to of illegal nature, which is to be punished
and the various forms whereby the ICC may indict persons are specified in the
Significant ramifications encountered by a Member State for the
violation of the Rome Statute are addressed. The legislative frameworks of
specific international organisations and tribunals are also defined as well as
the conditions wherein the Member State is protected or absolved from the
non-compliance with the Rome Law are explained. The Court was established by the
influence of two major International Criminal Tribunals, and they were of Rwanda
There are 114 states part of the ICC out of which:
The ICC retains
authority over four types of acts:
- fifteen are Asian
- eighteen are Eastern European;
- twenty-five are Latin American and Caribbean;
- twenty-five are Western European and others; and
- thirty-one are from Africa, rendering Africa having the majority of
- acts of Genocide - Genocide is as act done with the intent on
destroying, in whole or in part, a national, ethnical, racial or religious
- Crimes against humanity - The term crimes against humanity as has a list
of identified acts when committed as a widespread or systematic attack
which is focused towards any civilian population, with knowledge of the
- Crimes of war - War crimes are defined as crimes committed keeping
in mind a plan or policy or as large-scale commission of such crimes. Furthermore,
the statute identifies war crimes with words as wilful killing and
torture or inhuman treatment.; and
- Crimes of aggression - This term was not defined until May 2010, and
this ICC has not yet exercised jurisdiction.
The court can sue individuals and not states.
attempt to impose authority on a person, it is necessary to refer the case in of
the three ways:
- the state where the crime took place refers it to the ICC Prosecutor;
- the United Nations Security Council refers the ICC Prosecutor; or
- the ICC Prosecutor himself launches an inquiry on the said matter.
cannot prosecute matters that are already being prosecuted by the member states.
The ICC can only prosecute the person if the Member State is unwilling or
to do so. Both the United Nations and International Criminal Court has
something called the Relationship Agreement which leads them to recognise
each other's mandates and status and agree to cooperate and consult each other
on matters of mutual interest,
along with Chapter VII of United Nations
Charter. Member States are expected to collaborate with their prosecutions and
investigations with the court.
The International Criminal Court sends out a
request when they have decided to prosecute an individual, in which particular
methods are lead down for the member states. They are expected to cooperate.
When a members fail to do so, the court refers the matter to the Assembly of
States Parties or, where the Security Council referred the matter to the Court,
to the Security Council.
Case History: The Prosecutor v. Omar Hassan Ahmad Al Bashir
The United Nations Security Council urged the ICC Prosecutor, Luis Moreno-Ocampo,
to look into the situation taking place in Sudan who is a non-member state of
the International Criminal Court on 31 March 2005 in pursuant to Article 13(b)
of the Rome Statute.
The Prosecutor started the investigation while following
the Article 53 of the Rome Statute on 1 June 2005. Following an inquiry done
regarding the situation in Sudan, on 14 July 2008, Moreno-Ocampo of the
Prosecutor's Office filed for an Arrest Warrant (Application) for Genocide, war
crimes and crimes against humanity from 2003 to 2005 which were done against the
people of Fur, Masalit and Zaghawa community by President Omar Hasan Ahmad Al
Bashir (Al Bashir).
The Warrant claims that Al Bashir is responsible for:
three counts of genocide in violation of Article 6 under the Rome Statute, five
counts of crimes against humanity in violation of Article 7, and two counts of
war crimes in violation of Article 8.
The acts were reportedly orchestrated on or around 1 July 2002 in
the Darfur, Sudan. Through implementing Resolution 1593, the UN placed authority
on the International Criminal Court (ICC) in view of such offences. In keeping
with the principle of complementarity
, the Lawyer argues that this lawsuit is
admissible owing to lack of prosecution and investigation of the suspected
offences by the Government of Sudan. Prosecutor Moreno-Ocampo also obtained
warrants for six persons implicated in the situation in Darfur including
President Al Bashir. Five of the six have been charged. Two of the five
willingly emerged at The Hague, the remaining three remain at large.
Al Bashir led a military coup d'état on 30 June 1989 that deposed Saddiq Al
Mahdi. Al Bashir immediately abolished the constitution and substituted the
established state bodies with Revolution Command Council of National Salvation
(RCC-NS) as the Sudanese administration. Al Bashir formerly acted as President
of the RCC-NS and Head of government. In 1993, the RCC-NS appointed him
President of the Republic. In 1996, he was voted President and again re-elected
in 2001 and 2005.
The Prosecution argues that he maintained absolute authority over the nation and
silenced any dominant political party that undermined his influence,
theoretically or otherwise. There has been an armed war-like situation between
the Sudanese Government and opposition groups like the Sudan Liberation Movement
/ Army (SLM / A) and the Justice and Equality Movement (JEM) since March 2003,
all of whom are primarily recruited from the Fur, Masalit and Zaghawa tribes,
whom he reportedly perceives as the critical threats to his authority.
insurgent movements were questioning his national political and economic marginalisation. The prosecutor argues that Al Bashir has deliberately divided
the Darfur region's populace into tribes allied with him, whom he refers to as
'Arabs' and target communities whom he derogatorily refers to as 'Zurgas' or
It is in this sense that Al Bashir reportedly was using the whole system of
governance of Sudan, the Sudanese Armed Forces and the Militia (Janjaweed), to
massively kill the ethnic groups of Fur, Masalit and Zaghawa as well. Having
struggled to silence an uprising in Darfur following mediation and military
intervention, Al Bashir officially ordered the military to quench the revolt in
two weeks without taking back hostages or injured civilians, reportedly
launching a brutal wave of attacks on towns and villages occupied mostly by such
Such assaults included murdering, raping, abusing and
torturing residents, disrupting livelihood resources, and resulting in the
forced relocation of 2,700,000 people. According to the lawyer, the perpetrators
deliberately attacked cities and villages that were predominantly populated by
victim communities and intentionally avoided targeting Arab' settlements, even
though the settlements were similar to each other.
The Armed Forces, in cooperation with the Militia / Janjaweed, besieged a
village when the villagers were attacked either before or after the assault by
helicopters or aircraft. Land powers killed people, civilians, and children;
women and girls raped; crops and grain stores lost or pillaged; houses and civic
buildings burned; water supplies polluted and water pumps damaged; They were
chased into the deserts as the refugees fled, and others were killed or
abandoned to starve.
At the borders of bigger cities or refugee settlements in
nearby nations, approximately 2,500,000 residents entered settlements for
internally displaced persons (IDPs). In addition to the aim of destroying target
people, the assaults were apparently meant to ensure that those who were not
targeted could not live without aid.
The assaults are expected to start threatening local communities. Over the past
five years, the Militia / Janjaweed deployed near camps over internally
displaced persons (IDPs) reportedly and on a continued basis abused women and
girls when they left the camps to collect firewood, food, and water. According
to the lawyer, these strikes specifically cost the lives of at least 35,000
civilians and indirectly induced the slow death of between 80,000 and 265,000
citizens due to restrictions put on Internally Displaced Peoples during the
evacuation and in the camps.
The Prosecutor makes three counts. Next, he argues that such actions entail
crimes against humanity, including the assassination, raping and abuse of
people, the destruction of a part of the populace and the coercive relocation of
a part of the civilians. Third, the Prosecutor argues that such actions
constitute war crimes, including pillaging and assaulting people that are not
specifically interested in the conflicts. Finally, the Prosecutor alleges that
by murdering leaders of each target group, doing significant physical or
emotional damage to leaders of each target group and knowingly imposing
conditions of life measured for the community destruction, these attacks
The Prosecution argues that Al Bashir is criminally liable for such offences
since, in compliance with the Rome Statute, Article 25(3)(a), he perpetrated
them by representatives of the state's systems, the Armed Forces and the Militia
/ Janjaweed. The Prosecutor claims that throughout the time covered by his
claim, Al Bashir was President of the Republic of Sudan, Leader of the National
Congress Group, and Commander-in-Chief of the Armed Forces, maintaining 'full
power' over the state government, the Armed Forces, and the Militia / Janjaweed
which he had incorporated into the reserve powers.
The Prosecution argues that Al Bashir has obtained daily accounts of crimes
perpetrated on the ground and has utilised the security agencies as well as the
Ministries of the Interior, Protection, Humanitarian Affairs, Technology and
Communications, International Relations, Finance and Justice to facilitate the
crimes charged. In addition, Al Bashir reportedly used his power to suppress
dissension, refuse offenders access to the justice system and provide protection
for those who violated his instructions. He also reportedly disciplined anyone
who failed to comply with his instructions by reassignment or expulsion.
On March 4, 2009, the ICC determined that there had been ample proof that
President Al Bashir employed both the Sudanese military and the Government of
Sudan to participate in illegal behaviour. Al Bashir has been levied with five
counts of crimes against humanity and two charges of war crimes. Within Section
58(1) of the Statute, the ICC provided a warrant of arrest for Al Bashir.
The ICC found reasonable premises for alleging that war crimes as specified in
Articles 8(2)(e)(i) and 8(2)(e)(v) of the Statute and crimes against humanity as
specified in Articles 7(1)(a),(b),(d),(f) and (g) of the Statute were
perpetrated in the Darfur area by the Sudanese Army, including the Militia /
Janjaweed, from April 2003 until at least July 14, 2008. The International
Criminal Court has finds legitimate reasons to conclude that Al Bashir, as
President of the State of Sudan and Commander-in-Chief of the Sudanese Army, is
in his place as de jure and de facto Leader.
The Appeals court overturned the First Judgment as it pointed out that provides
an incorrect burden of evidence on the prosecution, and the Pre-Trial Tribunal
determined not to grant a warrant of arrest in support of the crime of genocide.
In fact, the Appeals court ruled that the Pre-Trial Tribunal had operated
inappropriately in denying the motion for a warrant of arrest in relation to the
counts of genocide on the basis that the presence of the suspect's genocidal
motive was only one of several reasonable conclusions available on the
materials provided by the Prosecution.
In the opinion of the Chamber of
Appeals, that the presence of genocidal motive must be the sole rational
inference leads to compelling the Plaintiff to disprove all other logical
assumptions and eradicate all legitimate doubt. Thereby, leading to the
Pre-Trial Chamber's second ruling.
There were two main aspects when it came to proving genocide. The first arose
whether there are reasonable grounds to believe that Omar Al Bashir acted with
dolus specialis/specific intent to destroy in whole or in part the Fur, Masalit
and Zaghawa ethnic groups and the second was whether there are reasonable
grounds to believe that the remaining elements of the counts of genocide are
present or not. The third important aspect of the second decision was whether
there are reasonable grounds to believe that Omar Al Bashir is criminally
responsible for the crimes the prosecution has charged him with.
A. Common Element:
- Whether there are reliable grounds to believe that Omar Al Bashir acted with
dolus specialis/specific intent aiming to destroy in whole or in part the Fur,
Masalit and Zaghawa ethnic groups.
First Judgment it claimed that the presence of rational reasons for assuming
that the suspect had behaved with a particular genocidal motive is not the only
logical inference that can be reached from the documents supporting the
Thus, the Chamber found such a decision to be fair, though
not the only rational one. Therefore, while not explicitly mentioning, the First
Judgment already stated that there were legitimate reasons to conclude that the
perpetrator acted towards one of the logical assumptions which clearly pointed
to genocide, but due to the lack of certainty, Al Bashir was not charged
The Chamber in this second decision reaffirmed the first part of the
previous judgement. Therefore, on the grounds of the level of evidence as
established by the Chamber of Appeals, the Chamber is convinced that the
fairgrounds were enough to conclude that Al Bashir behaved with dolus specialis
/ specific intent to partly kill the ethnic groups of Fur, Masalit and Zaghawa.
Thus, reducing the bar for proving the charges of genocide against any
- Whether there are reliable grounds to believe that the remaining
elements of the counts of genocide are present or not.
Eventually deciding that the evidence furnished in support of the prosecution's
appeal was not adequate to offer rational grounds for assuming that Omar Al
Bashir operated with dolus specialis / specific intent to kill the classes of
Fur, Masalit and Zaghawa partly, the majority did not continue in the first
judgment to investigate whether there were fairgrounds to conclude that the
information on the material elements, universal and specific, of each of the
alleged counts of genocide, were fulfilled. Thus, leading the chamber to look at
the general and unique elements of genocide in this second decision.
Whether there are qualified grounds to believe that the victims of the alleged
acts belonged to the targeted group.
In the First Ruling, the majority saw good reasons to conclude that the Fur, the
Masalit and the Zaghawa represented distinct racial classes because each of them
had their tongue, their cultural traditions, and their ancestral links to their
That there were ethical reasons for thinking that the central
aspect of the Government of Sudan counter-insurgency operation and,
subsequently, the Government of Sudan's strategy was the illegal assault on that
portion of Darfur's civilian population-mainly belonging to the Fur, Masalit and
Zaghawa parties-considered by the Government of Sudan to be similar to the SLM /
A, the JEM and other militant groups hostile to the Government of Sudan in the
SLM / A.
Based on the details and proof provided by the prosecutor, the Chamber is
further convinced that there are fairgrounds for assuming that the villages and
towns attacked as part of the Government of Sudan counter-insurgency operation
were chosen based on their ethnic makeup and that towns and villages populated
by other groups, as well as rebel areas, were bypassed to attack villages and
towns known to be occupied by the people belonging to the Fur, Masalit and
Zaghawa ethnic groups.
Whether there are presentable grounds to believe that the contextual element of
the counts of genocide included acts which have a pattern of similar conduct
directed against the group or conducted that could itself effect such
destruction of life, bodily severe as well as mental harm, prevent births or the
forcible transfer of children must take place.
Accordingly, in the understanding of the Elements of Crimes, the Chamber
demanded a conceptual feature of the crime of genocide is that the behaviour
must have taken place in the sense of a clear pattern of similar behaviour
directed towards the target group or must have had such a significance as to
have the effect on itself of complete or partial destruction of the target
The Chamber states from the assault mentioned above on that part of Darfur's civilian population was on a broad scale, affecting hundreds of
thousands of people and spreading across large parts of the Darfur region. The
attack as mentioned above was widespread because it lasted for over five years
and the acts of aggression it consisted of followed, to a considerable degree, a
similar trend. that the attacks followed a similar trend, to a considerable
These were organised land assaults on towns and villages mainly occupied
by people of the Fur, Masalit and Zaghawa tribes, in which the attackers had
previously surrounded the targeted village or come to that village with tens or
hundreds of vehicles and camels, creating a kind of long string. Air bombings by
helicopters frequently accompanied these land assaults, and Janjaweed Militia
arrived in motor vehicles on horse or camel-back along with, or shortly followed
by, leaders of the Sudanese Armed Forces. The Chamber thus concludes that there
is an element common present to support the three charges of genocide presented
by the Prosecution is fulfilled.
B. Specific Element:
Count 1: Genocide by killing
The legal definition of the killing act the shift from a crime against humanity
to genocide, depending on the following factors:
- the particular contextual elements;
- the requirement that victims belong to a targeted group (in the
case of genocide); and
- the different mens rea that each of them needs.
Chamber noticed that thousands of civilians in the Darfur region were
predominantly members of the Fur, Masalit and Zaghawa tribes, were subjected to
acts of murder by Government of Sudan forces, between the start of the
Government of Sudan counter-insurgency campaign soon after the April 2003 attack
on El Fasher airport and 14 July 2008 and Sets of extermination, such as
the alleged killing of over a thousand civilians in connection with the attack
on the town of Kailek on or around 9 March 2004, were committed by Government of
Sudan forces against civilians primarily from the Fur, Masalit and Zaghawa
groups, in the Darfur region, during the relevant period.
The Chamber is
confident that from the objective situations pointed to above it can be
concluded that there are legitimate reasons for assuming that the moral aspects
of the crime of genocide are met by destroying Article 6(a).
Count 2: Genocide by causing serious bodily or mental harm
The underlying substantive aspect of this count of genocide, according to the
Elements of Crimes, is that the perpetrator's plan has led to severe physical or
mental damage to one or more people, including acts of abuse, abduction, sexual
assault or cruel or degrading treatment.
In the present count of genocide, the
prosecution listed the following crimes:
- crimes of rape and other forms of sexual violence;
- torture; and
- forced expulsion of members of the target groups.
The significant atrocities of genocide are causing physical or
mental damage, are similar to the essential activities concerning crimes against
humanity as contained in the Prosecution's Report as counts 6, 7, and 8
(forcible population transfer, torture of civilians, and rape of civilians).
statutory description of such actions as crimes against humanity or genocide
focuses on the following criteria:
- their relevant conceptual elements;
- the necessity that the victims belong to a target group (in the case of
genocide); and (iii) the special mens rea that both of them needs.
Chambers is of the opinion that the start of the Government of Sudan
counter-insurgency campaign happened shortly after the attack on El Fasher
airport in April 2003 and continued at least until just before the date of
application by the prosecution included acts towards thousands of civilian
women, belonging primarily to the Fur, Masalit and Zaghawa groups and they were
subjected, throughout the Darfur region, to acts of rape by Government of Sudan
Civilians belonging primarily to the Fur, Masalit and Zaghawa groups
were subject to acts of torture by Government of Sudan forces and hundreds
of thousands of civilians belonging primarily to the Fur, Masalit and Zaghawa
groups were subject, throughout the Darfur region, to acts of forcible transfer
by Government of Sudan forces.
The Chamber is confident that it can be
concluded from the above-mentioned objective situations that there are
legitimate reasons to conclude that the substantive elements of the crime of
genocide are met by causing severe bodily and mental damage under Article 6(b).
Count 3: Genocide by deliberately inflicting conditions of life calculated to
bring about physical destruction
In comparison to previous counts of genocide and similarly to what is needed for
sure of the actions underlying the Elements of Crime of extermination under
crime against humanity, genocide as an offence contains an extra dimension and
demands that all conditions of existence be imposed on one or more individuals
that it should be calculated to bring about the physical destruction of that
group, in whole or in part.
Therefore, in order for the Chamber to consider
lawful reasons for assuming that the fundamental actions contained in this count
contribute to the crime of genocide, it would have to be proven, on the one
side, that the related crimes have been performed and, on the other side, that
they have been determined to bring about the actual destruction of the subject
community, in full or in part.
Such methods of devastation included:
- subjecting the community to devastation by their mode of living in their
- widespread expulsion from their homes into treacherous terrain in which
some died as a consequence of deprivation, malnutrition and illness;
- land abdication; and
- denial and impediment of medical and other humanitarian relief required
to support life in Internally Displace Person camps
There are fairgrounds for assuming that Government of Sudan forces often
poisoned the towns and villages wells and water pipes, mainly populated by
leaders of the Fur, Masalit and Zaghawa communities they targeted
, but not as a
central feature of the assault by Government of Sudan forces there are
justified grounds to believe that hundreds of thousands of civilians belonging
primarily to the Fur, Masalit and Zaghawa groups were subject, throughout the
Darfur region to acts of forcible transfer by Government of Sudan forces between
the start of the Government of Sudan counter-insurgency campaign soon after the
April 2003 attack on El Fasher airport and l4 July 2008 and there are
reasonable grounds to believe that, at times, Government of Sudan forces
encouraged members of other tribes, which were allied with the Government of
Sudan, to occupy later the lands and villages of which were previously home to
members of the Fur, Masalit and Zaghawa groups.
The Chamber believes that one
of the logical conclusions to be drawn is that the actions of the poisoning of
water supplies and forcible relocation coupled with displacement by
representatives of other tribes have been performed in favour of the genocidal
policy and that the living conditions placed on the communities of Fur, Masalit
and Zaghawa have been estimated to end in the physical loss of a people.
3. Whether there are presentable grounds to believe that Omar Al Bashir is
criminally responsible for the crimes the prosecution has charged him with.
Soon after the assault on El Fasher airport in April 2003, Omar Al Bashir and
other high-ranking Sudanese political and military figures decided on a joint
strategy to carry out a counter-insurgency operation against the SLM / A, the
JEM and other militant groups hostile to the Government of Sudan in Darfur..
a key component of such a basic plan was the unlawful attack on that part of Darfur's civilian population-largely belonging to the Fur, Masalit and Zaghawa
groups-perceived by the Sudanese Government as being close to the SLM / A and
JEM and other armed groups opposed to the Sudanese Government in the ongoing
armed conflict in Darfur.
According to the common plan, Government of Sudan forces were to subject the
said civilian population to unlawful attacks, forcible transfers and acts of
murder, extermination, rape, torture and pillaging. Omar Al Bashir and other
high-ranking Sudanese political and military leaders directed the branches of
the 'apparatus' of the State of Sudan that they led, in a coordinated manner, in
order to implement the common plan jointly.
Omar Al Bashir, as de jure and de facto President of the State of Sudan and
Commander-in-Chief of the Sudanese Armed Forces at all times important to the
prosecution case, played a vital role in the planning and configuration and
execution of the common plan and therefore Omar Al Bashi:
- played a position which went beyond coordinating the execution of the
- was in direct charge over all divisions of the State of Sudan's
'apparatus,' including the Sudanese Armed Forces and their partner Janjaweed Militia, the Sudanese Security Forces, the NISS and the HAC,
- used this power to facilitate the execution of the general strategy.
reaffirms these results. Consequently, the Chamber concludes that there is ample
proof to provide fairgrounds to conclude that Omar Al Bashir is criminally
responsible, according to Article 25(3)(a) of the Statute, as an actual
defendant or as an actual co-perpetrator, for the charges of genocide laid down
in Article 6(a), 6(b) and 6(c) of the Statute contained in that judgment, on
Events after Al Bashir's Indictment - Facts:
A second arrest warrant was reissued for him on 12 July 2010. What was unique
about this second arrest warrant was that it linked to the latest genocide
charge. The arrest warrants, along with demands for Mr Al-Bashir's detention and
submission to the Tribunal, were informed to all the Parties to the Rome Statute
- including Jordan. Mr Bashir has meanwhile visited several States Parties to
the Rome Statute, but they have not detained him.
It culminated in a series of Pre-Trial Chamber decisions as to whether to refer
these States to the Conference of States Parties and the United Nations Security
Council or not. Those States Parties include the Democratic Republic of the
Congo, Chad, Djibouti, Malawi, South Africa and Uganda, as mentioned in the
judgment in the context of specific discussions.
Jordan hosted the Twenty- (28th) League of Arab States Summit in Amman in March
2017. On 29 March 2017, Mr Al-Bashir was present at the meeting. Not only did
Jordan not surrender arrest Mr Al-Bashir but also no attempts were made to
arrest him when arrived at Jordan for the Arab League Summit in Jordan, the
decision which is now under appeal was released by Pre-Trial Chamber II on
Thursday, 9 April 2020.
In that decision, the majority of the Pre- Chamber held that:
- Jordan had failed to fulfil its obligations under the Statute;
- Jordan's failure to comply should be referred to the United Nations
Security and the Assembly of States Parties and Council according to Article
87(7) of the Rome Statute, which requires such a referral. The Pre-Trial
Chamber approved Jordan's application for leave to appeal the Ruling on 21
February 2018. Jordan brought two issues to light.
Whether the Pre-Trial Chamber was incorrect in determining that the Rome Statute
precluded Mr Al-Bashir 's protection as Sudan's head of state, in some manner
that explains Jordan's refusal to comply with the Court's order to detain and
Whether the Pre-Trial Chamber was incorrect to consider the Security Council
Resolution 1593 (2005) rejected any requirement under international law that
Jordan would have to give protection to Mr. Al Bashir as the Head of State of
As these two grounds are closely related, they have been considered together. In
matters of first and second grounds of appeal, Jordan argued that the Pre-Trial
Chamber made an error in determining whether Article 27(2) which states:
Immunities or unique rules of procedure which may apply to a person's
official power, whether under national or foreign law, shall not preclude the
Court from exercising its jurisdiction over such an individual
of the Rome
Statute had the power of preventing Article 98 to applied in the case.
It is recalled that Article 98(1) requires the Court to obtain a waiver of any
relative immunity from a State whose official is entitled to that immunity,
before sending a request to another State Party to the Statute which may place
it in a position to infringe the immunity concerned. Jordan claimed that the
Pre-Trial Chamber overreached in considering that, as Sudan is not a State Party
to the Rome Statute, has to operate under the same responsibilities imposed on
States Parties by the Rome Statute.
By eliminating the immunity of its Heads of State, Article 27(2), which binds
States Parties to that Statute, would also bind Sudan, which is not a State
Party to the Rome Statute. All this is to say, to put it more simply, that the
critical issue before the Chamber of Appeals is whether Mr Al-Bashir, in his
capacity as Head of State of Sudan, enjoyed immunity before this Court, thus
allowing the Court to obtain a waiver of that immunity from Sudan before sending
a request to Jordan for the arrest and surrender of Mr Al-Bashir.
The problem also arose whether the presence of immunity in customary
international law is a significant issue which has troubled this sequence of
proceedings in the case law created by numerous judgments of the Pre-Trial
Chambers on the topic of Heads of State immunity. The Chamber of Appeals states
that the immunity of the Head of State, claimed by Jordan in the case of Sudan,
is founded on a kind of immunity which is recognised explicitly under customary
international law in only some circumstances.
The immunity precludes one State from imposing its criminal authority over
another State's head. This is founded on the sovereign equality theory of
States. Furthermore, being equal States, no sovereign may claim sovereignty over
an equal. Usually, the idea is described in the Latin maxim-par in parem non-habet
imperium [among the equals, none may exercise domination].
As the Appeals Chamber has pointed out in the judgement, the Rome Statute
contains specific provisions which prohibit immunity before the Trial. This is
Article 27(2), as stated earlier. It is correct to see this provision in its
form, as a clause in a treaty binding on the parties. However, the Chamber of
Appeals finds that the clause is more than just a stipulation of treaty law.
The clause also represents the status of customary international law, as it
applies to the jurisdiction duly exercised by an international criminal
court. In that regard, the Chamber of Appeals finds that in the exercise of its
proper jurisdiction, there is neither state practice nor an impelled sense of
such a practice that verifies the existence of such a rule even under
international customary law concerning an international criminal tribunal.
Then comes the understanding if UN Security Council Resolution 1593 (2005), on
whether Sudan can claim Head of State immunity about the arrest warrants imposed
by the Court against Mr Al-Bashir for presumed severe crimes in the circumstance
in the Sudanese Darfur region.
The Resolution of 1593 brings in light the special jurisdiction of the Court.
This is provided for in Article 13(b) of the Statute of Rome. The provision was
conceived as the mechanism with which the ICC could implement the mandate
provided by the United Nations Security Council in Chapter VII of the United
Nations Charter to preserve international peace and security or to address
threats to international peace and security.
The most significant advantage of this provision provided for in Article 13(b)
would be that the Security Council no longer has to set up new ad hoc
international tribunals, as it did in 1993 and 1994 respectively concerning the
former Yugoslavia and Rwanda. The ICC is also an international judicial body
open to the United Nations Security Council.
The United Nations Resolution of 1593 is the UN Security Council's decision
which is binding on all UN Member States following the UN Charter whether or not
those UN Member States are also Parties to the Rome Statute. In that context,
the Chamber of Appeals states that resolution 1593 (2005) places a clear duty on
Sudan to 'cooperate entirely' with the Court. By turn, this means that the
cooperation system for States Parties to the Rome Statute applies to Sudan too.
Consequently, ensuring the immunities which Sudan may otherwise enjoy under
international law, as a matter of its relations with another State, can not
preclude the effective exercise of jurisdiction by the Court. Sudan cannot rely
on Mr Al Bashir's Head of State Immunity.
The Chamber of Appeals considers that it would be all right for the Court not to
obtain the waiver of immunity from Sudan just so it could advance with a demand
Jordan for the detention and deposition of Mr Al-Bashir, in compliance with
Article 98(1) of the Statute. This is to say, and there was no need to revoke
immunity. The Chamber of Pre-Trial made no mistake in this respect.
The bar set for proving Genocide has been reduced tremendously, and the common,
as well as the specific elements of Genocide, have been explained concerning
Article 6 of the Rome Statute.
There is no State tradition or opinio juris that might sanction the presence of
Head of State protection before an international court within customary
international law. In the opposite, this privilege has never been accepted as a
deterrent to the authority of an international court under international law.
In customary international law, the absence of rule respecting Head of State
protection from international tribunals is essential not only to the problem in
matters regarding issuance warrant of a Head of State and the conduct of
litigation against him or her but also to the horizontal relationship between
States when a State is sought by an international tribunal In such a case, no
immunities under customary foreign law serve to prevent an international
tribunal from practising its authority.
Both the articles are situated in different segments of the Statute, must be
interpreted together, and all potential conflict must be reconciled between
them. This is better done by interpreting Clause 27(2) of the Code, as a
question of modern law as well as representing traditional foreign law, as well
as avoiding dependence on immunity regarding the detention and retreat of a Head
Article 27(2) of the Statute thus refers not only to the Court's adjudicatory
authority but also to the 'judicial power' of the Court vis-à-vis States Parties
to the Rome Statute.
States Parties to the Rome Statute have accepted that Head of State Immunity can
not preclude the Court from exercising jurisdiction in compliance with customary
international law, under the adoption of the Statute.
Article 27(2) provides no reason which would direct the interpreter to read in
such a manner as to encourage a State Party to claim the security of Head of
State in the horizontal relationship if the Court requested the Head of State's
detention and surrender by rendering a submission to that effect to another
State Party. The Statute does not readily allow anything that it forbids to be
done from the front door by the back door. In these cases, the requesting State
Party will not apprehend the Head of State or try him or her in the courts of
the requesting State Party: it merely gives help to the Judge in exercising the
authority of the Judge.
Article 58(1) of the Statute authorises the pre-trial chambers to grant an
arrest warrant where there are fairgrounds for assuming that the person has
committed a felony within the authority of the Court and that the person's
apprehension 'appears appropriate' for the purposes set out therein. Along with
the issue of a summons to appear, issuing a warrant of arrest is one of the ways
of guaranteeing the appearance of the defendant before the Judge, and is thus an
essential authority and primary feature of the Judiciary. Many that bear the
burden of serving an arrest warrant are not entitled to make it nugatory merely
by failing to enforce it.
In the case that a State finds difficulties with the implementation of an order
for collaboration provided by the Judge, Article 97 of the Law does not allow
for a particular consultation protocol to be pursued by Governments, nor should
it set out how the consultations will be performed.
How a State may demonstrate, its intention to pursue consultations can vary, in
the absence of a specified protocol. It is essential is for the purpose to
consult to be distinguishable from the circumstances. The purpose to instruct
must be communicated to the Court on time, so as not to hinder the objective of
the cooperation request or diminish the value of the consultation
process. Besides, States are expected to participate in good conscience
While it would be easier for a State to conduct the consultation process
unambiguously by raising questions, inability to pursue this conduct is not
automatically incompatible with an effort to participate in the consultation.
Nonetheless, a State can approach the consultation process by stating a
preliminary position which it sees as an obstacle to cooperation.
Conclusion And Comments
In addition to the specific guidance on the legal situation on immunities and
the full ramifications of a referral by the Security Council to the
International Criminal Court from the Al-Bashir decision, two points do seem
relevant. The first addresses the reasons for the creation of the Court, and the
second refers to the expansion of the Security Council's constitutional mandate
to protect international peace and stability.
With World War II war criminals prosecuted, the immorality of tragic crimes
against humanity did not cease. Also, those accountable for these crimes have
mostly been left unchecked because of the inability of state courts to convict
The Court then came into being, whose foundation it took years to accomplish. At
a realistic basis, the rationale for setting up a permanent court instead of
ad-hoc tribunals was to ensure a professional pool of personnel skilled in
criminal investigation and trial, which could respond quickly to any emerging
situation before evidence could be lost. It is an activity to be preserved and
sustained in a rising unstable and unpredictable environment.
Turning now to the UN, the body took on a more active role in world affairs
nearing the end of the Cold War than in the war, when an agreement could rarely
be reached due to the possibility of a veto vote in the Security
Council. According to Akhavan, due to the numerous incidences of human and civil
rights abuses, accelerated institution-building of the United Nations government
after the Cold War was unavoidable. Perhaps the single beneficial contribution
by the United Nations to the advancement of international criminal justice was
the creation, at the behest of the Security Council, of ad hoc tribunals
functioning in terms of its powers under Chapter VII.
This has developed the presumption that the United Nations can interfere
legitimately in matters falling beyond the domestic jurisdiction of a State. The
trial chamber took care of the issue of state sovereignty by arguing that
members of the United Nations imposed some limits on the rights of member states
since, according to Article 25 of the Charter of the United Nations, all member
states have committed to recognise and enforce Security Council resolutions in
compliance with the Charter as one can see state supremacy, as it would seem
from the claims brought forth in Al-Bashir by South Africa that government is
unaccustomed to recognise the necessity indicated by the membership of the
United Nations and the International Criminal Court.
It is hoped that the International Criminal Court's simple and well-founded
decision in Al-Bashir has given the government and its supporters a greater
comprehension of international criminal law and justice, and recognition of the
fact that, in Mlambo J's terms, the courts are the wrong platform for the
ventilation of foreign and international policy issues
- Shreya Saxena (4th BA.LLB)
- Gunjan Maji (4th BA.LLB)
Authentication No: JL020457842928-22-720