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The Prosecutor v/s Omar Hassan Ahmad Al Bashir

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 appeal.

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, including the 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.

Introduction
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 Rome Law.

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 and Yugoslavia. 

There are 114 states part of the ICC out of which:
  1. fifteen are Asian
  2. eighteen are Eastern European;
  3. twenty-five are Latin American and Caribbean;
  4. twenty-five are Western European and others; and
  5. thirty-one are from Africa, rendering Africa having the majority of member states.
The ICC retains authority over four types of acts:
  1. acts of Genocide - Genocide is as act done with the intent on destroying, in whole or in part, a national, ethnical, racial or religious group.;
  2. 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 attack.;
  3. 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
  4. 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.
In an attempt to impose authority on a person, it is necessary to refer the case in of the three ways:
  1. the state where the crime took place refers it to the ICC Prosecutor;
  2. the United Nations Security Council refers the ICC Prosecutor; or
  3. the ICC Prosecutor himself launches an inquiry on the said matter.
ICC 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 unable 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.

Facts:
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.

The 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 'Africans'.

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 target populations.

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.

Charges:
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 constitute genocide.

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.

Judgement:
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.

Issues:
  1. 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 prosecution's claim.

    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.

    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 individual.
     
  2. 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.
A. Common Element:
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 territories.

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 group.

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 extent.

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:

  1. the particular contextual elements;
  2.  the requirement that victims belong to a targeted group (in the case of genocide); and
  3. 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:
  1. crimes of rape and other forms of sexual violence;
  2. torture; and
  3. 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).

The statutory description of such actions as crimes against humanity or genocide focuses on the following criteria:
  1. their relevant conceptual elements;
  2. 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 forces.

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:
  1. subjecting the community to devastation by their mode of living in their homeland;
  2. widespread expulsion from their homes into treacherous terrain in which some died as a consequence of deprivation, malnutrition and illness;
  3. land abdication; and
  4. 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..

Further, 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:
  1. played a position which went beyond coordinating the execution of the common plan;
  2. 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, and
  3. used this power to facilitate the execution of the general strategy.
The Council 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 rational grounds.

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:
  1.  Jordan had failed to fulfil its obligations under the Statute; and, accordingly,
  2. 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.
Issues:
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 surrender him.

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 Sudan.

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.

Key Points:
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 of State.

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 negotiations.

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 them.

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.

Written By:
  1. Shreya Saxena (4th BA.LLB)
  2. Gunjan Maji (4th BA.LLB)

    Awarded certificate of Excellence
    Authentication No: JL020457842928-22-720

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