ICC Confirms Jordan was Required to Arrest Al-Bashir, Reverses Referral to Assembly of States Parties (May 6, 2019) [1]
On May 6, 2019, the Appeals Chamber of the International Criminal Court confirmed [3] Pre-Trial Chamber II’s decision that Jordan had not complied with its obligations under the Rome Statute when it failed to arrest Omar Al-Bashir while he was on Jordanian territory in March 2017 in regard to the arrest warrant against Al-Bashir for five counts of crimes against humanity, two counts of war crimes, and three counts of genocide. The Appeals Chamber held that there is no Head of State immunity under customary international law and that Head of State immunity is also inapplicable in this situation. The Appeals Chamber also reversed the Pre-Trial Chamber’s decision to refer the matter to the Assembly of States Parties (ASP), finding that it “had erroneously exercised its discretion in referring Jordan's non-compliance to the ASP and UNSC, based on an incorrect conclusion that Jordan had not sought consultations with the Court.” As noted in the press release [4], Judge Eboe-Osuji, Judge Morrison, Judge Hofmański, and Judge Bossa wrote a joint concurring opinion [5], and Judge Ibañez and Judge Bossa wrote a joint dissenting opinion [6].