On December 11th 2017, the Pre-Trial Chamber II of the International Criminal Court found that the Hashemite Kingdom of Jordan, a State Party to the ICC Rome Statute since 2002, failed to comply with its obligations under the Statute by not executing the Court’s request for the arrest of Omar Al-Bashir and his surrender to the Court while he was on Jordanian territory attending the League of Arab States’ Summit on 29 March 2017. The Chamber decided to refer the matter of Jordan’s non-compliance to the Assembly of States Parties of the Rome Statute (“ASP”) and the United Nations Security Council (“UNSC”).
The Chamber’s Majority composed of Judges Cuno Tarfusser, Presiding, and Chang-ho Chung clarified that Security Council Resolution 1593 (2005) imposed on Sudan the obligation to cooperate fully with the Court and provide to it any necessary assistance and that one consequence of this is that article 27(2) of the Statute applies equally with respect to Sudan, rendering inapplicable any immunity on the ground of official capacity belonging to Sudan that would otherwise exist under international law.
Judge Marc Perrin de Brichambaut appended a minority opinion concurring with the Majority’s conclusions while considering that the Convention on the Prevention and Punishment of the Crime of Genocide (1948) to which Jordan and Sudan are parties offers the basis for the non-immunity of Sudan’s Head of State in the present case.
