Debate during hearings into Jordan’s appeal at the International Criminal Court (ICC) against a Pre-Trial Chamber II decision was on whether a United Nations Security Council resolution referring the situation in Sudan’s southwestern region of Darfur to the ICC lifted the immunity of Sudanese President Omar Ahmad al-Bashir.

On Wednesday, September 12, the debate was also on whether Security Council Resolution 1593 required United Nations member states to arrest al-Bashir and surrender him to the ICC, which has issued two arrest warrants for him for his alleged role in the Darfur conflict.

Between September 10 and September 14, the Appeals Chamber held hearings on Jordan’s appeal against a December 11, 2017 decision of Pre-Trial Chamber II. In that decision, Pre-Trial Chamber II referred Jordan to the Security Council and the ICC’s membership, the Assembly of State Parties, for not arresting al-Bashir when he visited Jordan in early 2017 for a heads of state meeting of the League of Arab States. Jordan has argued in its appeal that it could not arrest al-Bashir because he enjoyed immunity while attending a heads of state meeting of the League of Arab States.

Jordan and the prosecution made their submissions on questions about Resolution 1593 on Tuesday, September 11. On Wednesday, September 12, representatives of the African Union, League of Arab States, and law professors made their observations on the Security Council resolution.

Charles Jalloh, an external legal advisor of the African Union, observed that in its December 11, 2017 decision, Pre-Trial Chamber II determined that the Security Council intended to waive al-Bashir’s immunity in Resolution 1593.

“If this interpretation of the meaning of the resolution was so obviously intended, why did it take the ICC Pre-Trial Chamber 17 years to identify this as a correct legal theory for stripping away immunity?” asked Jalloh, referring to the decisions of different Pre-Trial Chambers on the issue of al-Bashir’s immunity. Jalloh teaches at the University of Florida and he is a member of the United Nations’ International Law Commission.

Maged Abdelfatah Abdelaziz, the representative of the League of Arab States, said Pre-Trial Chamber II’s interpretation of Security Council Resolution 1593 was not persuasive.

He said the prosecution’s arguments were similar to the interpretation of Pre-Trial Chamber II but also created, “a novel category of states,” called “Security Council situation referral states.” He said the prosecution used this term to refer to states, such as Sudan, that have not ratified the Rome Statute, the ICC’s founding law.

“Such an approach fails to recognize that the Security Council does not refer states to the court,” said Abdelaziz.

He said the prosecution used this term to argue that the Security Council resolution meant that provisions of the Rome Statute such as those that removed the immunity of heads of state applied to Sudan and therefore Jordan could have arrested al-Bashir.

Abdelaziz said, “such an assertion has no basis in the (Rome) Statute or in Resolution 1593.”

“Such a situation-centric (approach) is clearly unattainable for reasons explained by Jordan,” said Abdelaziz.

“Of course, it may be open to the Security Council, when making a referral, to make additional requirements but it must do so in clear terms,” said Abdelaziz.

“It is the League’s contention that the second ground of appeal should be admitted,” concluded Abdelaziz.

The second ground of Jordan’s appeal argues that Jordan could not arrest al-Bashir when he was in the country in early 2017 because Sudan is not a member state of the ICC and al-Bashir had immunity under international law. Jordan has also contended that the ICC did not obtain a waiver of al-Bashir’s immunity under Article 98 of the Rome Statute and therefore Jordan could not arrest him.

Claus Kreß of the University of Cologne, one of several law professors invited as the friends of the court to make submissions before the Appeals Chamber, said that the second paragraph of Security Council 1593 in effect lifted the immunity of al-Bashir and Jordan could have arrested him.

Kreß said that even if the Appeals Chamber agreed with his submission, the chamber would need to address the issue of international law and immunity of heads of state.

“If you follow Jordan’s argument that the Security Council avenue has not displaced the alleged immunity then I think you must approach the question of customary international law,” said Kreß.

He said it is not surprising Jordan argued that for the Security Council resolution to lift the immunity of al-Bashir it “requires an explicit provision to that effect.”

“With all due respect, this proposition is untenable. There is no legal requirement to that effect,” said Kreß, adding that the practice of the Security Council is to avoid explicit language in its resolutions.

He also said he was saddened by the inaction of the Security Council on its own resolution despite regular briefings on the ICC arrest warrants for al-Bashir and other Sudanese officials.

Kreß said the Security Council, “first referred this case (the situation in Darfur) to the court in order then to let the same court down when its support is needed.”

Flavia Lattanzi of LUISS Guido Carli University told the court that the sixth paragraph of Security Council Resolution 1593 made an exception to the jurisdiction of the ICC. The paragraph exempts personnel of the United Nations or African Union peacekeeping missions in Darfur from the jurisdiction of the ICC if they are citizens of a country that is not a member of the ICC.

“This does not mean that there is a recognition of other exceptions. It does not, otherwise it would have been explicitly worded,” said Lattanzi, arguing that the Security Council resolution implied al-Bashir did not enjoy immunity as head of state.

Konstantinos Magliveras of the University of the Aegean said the Appeals Chamber would have to address the question of whether al-Bashir acted “on behalf of the state of Sudan or did he act on his volition? If he acted effectively on behalf of the state of Sudan he could be entitled to certain immunities.”

He said if al-Bashir acted on his volition in the conflict in Darfur then he was not entitled to any immunities. Magliveras said that if it is accepted al-Bashir acted on behalf of the state of Sudan, this would leave open “the question of the responsibility of the state of Sudan,” in the crimes committed in Darfur.

Roger O’Keefe of Bocconi University said he agreed that Security Council resolutions are not always explicit. O’Keefe said this does not mean Resolution 1593 lifted al-Bashir’s immunity.

He said if that was the case, the second paragraph of the resolution, which details Sudan’s obligations in fulfilling the resolution, could have included the phrase, “pursuant to the Rome Statute.” O’Keefe said the resolution did not have such a provision and to interpret it any other way was “highly implausible,” or required “a lot of imagination and a lot of calisthenics.”

Judge Piotr Hofmanski asked Jordan whether its insistence that the Security Council resolution be explicit on lifting the immunity of al-Bashir would have been an “impermissible suggestion to the (ICC) prosecutor as to who should be responsible for the case?”

“When we say the lifting of immunity required express language, as was also said by one of the friends of the court, it does not have to say that we hereby lift all immunity. It could have been formulated in a way that was clear but did not target any particular person,” said Michael Wood, a member of Jordan’s legal team.

The hearing continued on Thursday, September 13. A transcript of Wednesday’s hearing is now available on the ICC website.