ICC under fire over latest al-Bashir ruling
Publish date: 13 May 2019
Issue Number: 823
Diary: IBA Legalbrief Africa
Jordan will not be referred to the UN Security Council for its failure to arrest Sudanese war crimes suspect Omar al-Bashir when he visited Amman in 2017, the International Criminal Court (ICC) confirmed last week. Legalbrief reports that the ruling is a reversal of an earlier decision and has once again opened the court to a barrage of criticism. In a split ruling, the five-judge panel confirmed that Jordan should have arrested the fugitive, but its failure to do so was not grounds for referral because it had attempted to consult the court about the matter. Al Jazeera reports that presiding Judge Chile Eboe-Osuji said the court ‘finds merit in Jordan's arguments and considers that the Pre-Trial Chamber abused its discretion’. Jordan is a member of the Rome Statute, which underpins the tribunal – established in 2002 to try the world's worst atrocities – and as such has agreed to comply with the court's orders.
Writing for Just Security ahead of the announcement, analyst Ben Batros said that while the ruling may not provide new insight into the immunity of heads of state for international crimes, it would likely be the most important decision on the relationship between the ICC and the UN Security Council, giving an insight into how the court understands the nature of the jurisdiction it exercises when it operates under a Security Council referral. He notes that the Appeals Chamber’s ruling is likely to impact the way in which the Security Council approaches referrals in the future, especially involving non-state parties. ‘Sudan is not a party to the ICC Statute, so the court’s involvement arises from the UN Security Council’s referral of the situation in Darfur to the ICC 14 years ago. al-Bashir, who is in custody after being toppled in Sudan last month, has travelled to a number of ICC States Parties – including Djibouti, Uganda, Chad, Tanzania, Malawi, the DRC and SA – without being arrested. In a number of these cases, the Pre-Trial Chamber issued decisions that al-Bashir was not entitled to immunity and that the state in question had violated its obligation to cooperate with the court.
The ICC’s ruling has sparked fresh concerns over the court's ability to tame the world's powerful political actors and rogue regimes. The ICC Appeals Chamber's decision was the latest in a series that has raised concerns that the court may be caving in to pressure from powerful state actors who have waged prolonged smear campaigns against it or questioned its mandate to tackle international crimes. In an analysis in the East African site, Fred Oluoch notes that Kenya and SA top the list of state actors that have vigorously mobilised against the ICC, accusing it of unfairly targeting Africa with racial undertones. ‘The court's decision to acquit Laurent Gbagbo of Ivory Coast and Jean-Pierre Bemba of the DRC who were before it for crimes against humanity, and its withdrawal of charges against President (Uhuru) Kenyatta and (William) Ruto in the face of a recalcitrant Kenyan Government have all left the mark of a court whose resolve has been shaken and is now focused on delivering politically correct judgments.’ Oluoch says a further complicating factor is that the US does not recognise the ICC and has recently launched its own campaign, including denying the court's officials visas to enter the US.
In other developments, the ICC has kicked off a campaign in support of the UN’s Sustainable Development Goal 16: Peace, Justice and Strong Institutions, with a call to unite humanity against crime. The campaign, called ‘Humanity against crimes’, explores the crimes under the court’s jurisdiction, how the ICC promotes access to justice, and how we can work together to protect people from suffering and help prevent mass crimes. It also includes specific calls to action for both individuals and states to unite in these common goals. ‘The purpose of the ICC is to help prevent war-related violence, and prevent it through the rule of law, and to provide access to justice where it otherwise could not be attained. The ICC needs the support of everyone in its mission,’ said ICC President Judge Chile Eboe-Osuji in a report on the Front Page Africa site.