## Facts

- The UN Security Council referred the Darfur (Sudan) situation to the International Criminal Court (ICC) in 2005.
- The ICC issued arrest warrants (2009, 2010) for Omar Hassan Ahmad Al-Bashir, then President of Sudan, for genocide, crimes against humanity, and war crimes.
- Jordan, a Rome Statute State Party, received ICC requests to arrest and surrender Al-Bashir.
- In March 2017, Al-Bashir traveled to Jordan for a regional summit; Jordan did not arrest him and he departed.
- In December 2017, ICC Pre-Trial Chamber II found Jordan failed to comply with cooperation obligations and referred the matter to the Assembly of States Parties and the UN Security Council under Rome Statute Article 87(7).
- Jordan appealed the noncompliance finding and the referral decision to the ICC Appeals Chamber.

## Issues

1. Whether customary international law provides head-of-state immunity (immunity ratione personae) that would bar a Rome Statute State Party from arresting a sitting head of state of a non-party state pursuant to an ICC warrant in a Security Council–referred situation.
2. Whether the Security Council referral affected any immunity defenses and the cooperation obligations of Sudan and States Parties in relation to Al-Bashir.
3. Whether referral of Jordan’s noncompliance to the Assembly of States Parties and the Security Council under Article 87(7) was a proper exercise of discretion.

## Decision

- The Appeals Chamber affirmed that Jordan failed to comply with its obligation to arrest and surrender Al-Bashir.
- The Appeals Chamber held that no head-of-state immunity barred the ICC’s exercise of jurisdiction in this context and therefore did not excuse Jordan’s failure to execute the arrest warrant.
- The Appeals Chamber concluded that Article 98(1) did not relieve Jordan of cooperation because it applies only where a relevant immunity obligation exists.
- The Appeals Chamber reversed the Pre-Trial Chamber’s decision to refer Jordan’s noncompliance to the Assembly of States Parties and the Security Council, finding an error in the discretionary assessment required by Article 87(7).

## Legal Principles

- Customary international law does not recognize head-of-state immunity as a bar to proceedings before an international criminal court; such immunity operates as a procedural bar in domestic courts, not as a limitation on an international tribunal’s jurisdiction.
- Rome Statute Article 27 makes official capacity irrelevant to the Court’s jurisdiction and criminal responsibility, including for sitting heads of state.
- Rome Statute Article 98(1) limits surrender only when compliance would require the requested state to breach an existing international-law immunity obligation; it does not create or revive immunity where none applies vis-à-vis the ICC.
- A Security Council referral can place the referred non-party state in a cooperation posture analogous to a State Party for purposes relevant to ICC proceedings, preventing reliance on head-of-state immunity to defeat cooperation.
- Under Rome Statute Articles 86 and 89, States Parties must fully cooperate with the ICC, including executing requests for arrest and surrender when no applicable immunity bars cooperation.
- Article 87(7) referrals for noncompliance are discretionary and require reasoned consideration of factors such as the impact on the Court’s functions and the circumstances surrounding the asserted legal obstacles.

## Conclusion

The Appeals Chamber confirmed Jordan’s breach of its Rome Statute duty to arrest and surrender Al-Bashir, holding that head-of-state immunity did not bar ICC-related arrest in a Security Council–referred situation and that Article 98(1) provided no excuse, while also overturning the referral of Jordan’s noncompliance for lack of adequate discretionary justification under Article 87(7).


Prosecutor v. Al Bashir (Judgment in the Jordan Referral re Al-Bashir Appeal), No. ICC-02/05-01/09 OA2 (Int’l Crim. Ct. App. Ch. 2019)