(a) Jordan

53. Jordan submits that the Pre-Trial Chamber erred (i) in its findings in relation to ‘article 27(2) of the Rome Statute excludes the application of article 98’;Footnote ¹⁰⁸ (ii) in finding that ‘article 98 establishes no rights for States Parties’;Footnote ¹⁰⁹ (iii) in finding that ‘article 98(2) does not apply to the 1953 Convention’;Footnote ¹¹⁰ and (iv) in finding that ‘even if article 98 applied it would provide no basis for Jordan not to comply with the Court's request’.Footnote ¹¹¹ Jordan clarifies that the issues of Mr Al-Bashir enjoying ‘personal immunity from foreign criminal jurisdiction under customary international law’ or whether Mr Al-Bashir enjoyed immunity based on ‘conventional international law’ such as the 1953 Convention are not being appealed.Footnote ¹¹² Jordan submits further that it does not share Judge Perrin de Brichambaut's interpretation of the Convention for the Prevention and Punishment of the Crime of Genocide [the ‘Convention against Genocide’],Footnote ¹¹³ and agrees with the majority's finding at paragraph 109 of the Pre-Trial Chamber's decision with respect to South AfricaFootnote ¹¹⁴ [the ‘South Africa Decision’].Footnote ¹¹⁵ However, Jordan stresses that this issue is not under appeal and therefore it will not make any submission on the matter ‘but stands ready to do so should the Appeals Chamber so wish’.Footnote ¹¹⁶ Jordan adds that ‘[u]nder customary international law, Head of State immunity from foreign criminal jurisdiction is not subject to any exceptions’ and the International Court of Justice [the ‘ICJ’] in the ‘Case concerning the arrest warrant of 11 April 2000’ [the ‘Arrest Warrant Case’],Footnote ¹¹⁷ did not suggest otherwise.Footnote ¹¹⁸

54. Jordan argues that the issues concerning the exercise of the Court's jurisdiction and the cooperation of a State Party cannot be conflated.Footnote ¹¹⁹ Jordan submits that articles 86 and 89, which appear in Part 9 of the Statute, address a State Party's obligations to arrest and surrender a person found in its territory and article 98 preserves the immunities of officials of “third States” under customary and conventional international law.Footnote ¹²⁰ Jordan argues that article 27, which is contained in Part 3 of the Statute, addresses only the Court's ability to exercise its jurisdiction notwithstanding a person's immunity.Footnote ¹²¹ Jordan argues that article 27 ‘does not address the question of a State Party's arrest and surrender of persons to the Court’, as this provision ‘does not create any right or impose any obligation upon a State Party’.Footnote ¹²²

55. Jordan submits that, even if article 27 were considered ‘relevant in the context of the arrest and surrender of a person to the Court's own jurisdiction, it could be relevant only in relation to a State Party vis-à-vis its own officials and not when a State Party was potentially surrendering an official of another State Party.Footnote ¹²³ In Jordan's view, article 98 expressly addresses the latter situation by ‘preserving immunities arising under customary and conventional international law in the absence of waiver’.Footnote ¹²⁴ Jordan further argues that, even if article 27(2) was construed as an ‘implicit waiver by a State Party’ of international law immunities it would otherwise enjoy under Part 9 of the Statute, article 27(2) cannot be construed that way in relation to officials of a non-State Party such as Sudan.Footnote ¹²⁵ Jordan avers that the exception provided in article 27(2), in principle, should be confined to the State Parties that have ‘accepted’ the Court's jurisdiction.Footnote ¹²⁶

56. According to Jordan, its obligations vis-à-vis Sudan under both customary and international law with respect to the immunities of Mr Al-Bashir fell within article 98(1) and (2).Footnote ¹²⁷ Jordan asserts that according to the Pre-Trial Chamber's narrow reading of article 98 any State Party must surrender an individual whenever requested by the Court, ‘even in circumstances where the Court has not seen fit to determine whether there exists immunity under conventional international law, as is the case here’.Footnote ¹²⁸ Jordan avers that the meaning of ‘third State’ under article 98(1) should not be equated with ‘State not party’.Footnote ¹²⁹ It contends that it is incorrect to conclude that ‘any international agreement that does not include the words ‘sending State’ does not fall within the ambit of article 98(2).Footnote ¹³⁰ According to Jordan, article 11 of the 1953 Convention addresses the issue of immunity of member state representatives from arrest and detention when travelling to and from conferences, and article 14 of the 1953 Convention addresses circumstances where a member state might consent to the arrest and detention of its representatives.Footnote ¹³¹

57. Jordan argues that when the Court makes a finding under article 87(7) of the Statute, such a finding must take into account whether the Court ‘proceeded’ with its request in accordance with the Statute, including article 98 of the Statute.Footnote ¹³² Jordan submits that a State Party must be given an opportunity to fully explain why it believes that a request for cooperation is inconsistent with the Statute, in particular with the requirements of article 98 of the Statute.Footnote ¹³³ Jordan argues that the Pre-Trial Chamber has negated ‘an important conflict avoidance rule’ provided for under article 98 of the Statute by asserting that Jordan has a ‘duty to cooperate with the Court no matter what legal obligations [it] may have vis-à-vis other States’.Footnote ¹³⁴ According to Jordan, the Court first ‘needs to obtain a waiver [pursuant to article 98] from Sudan before requesting State Parties […] to arrest and surrender him’.Footnote ¹³⁵

58. According to Jordan, its obligations vis-à-vis Sudan under both customary and international law with respect to the immunities of Mr Al-Bashir fell within article 98(1) and (2).Footnote ¹³⁶ Jordan argues that the Pre-Trial Chamber's narrow reading of this provision as referring solely to the ‘Court’ rather than ‘to a ‘right of a State Party’’ is highly problematic.Footnote ¹³⁷ Jordan asserts that according to this reading any State Party must surrender an individual whenever requested by the Court, ‘even in circumstances where the Court has not seen fit to determine whether there exists immunity under conventional international law, as is the case here’.Footnote ¹³⁸

59. Jordan argues that as articles 86 and 89(1) expressly state that a State Party's obligations must be carried out in accordance with the provisions of the Statute, including Part 9; then such obligations are conditioned on the Court acting in accordance with article 98.Footnote ¹³⁹ According to Jordan, the ‘Court has no right or power to request a State Party to arrest and surrender a person in complete disregard for the provisions of the Rome Statute’.Footnote ¹⁴⁰ Jordan argues that when the Court makes a finding under article 87(7) of the Statute, such a finding must take into account whether the Court ‘proceeded’ with its request in accordance with the Statute, including article 98 of the Statute and gave the State an opportunity to explain why it believes that a request for cooperation is inconsistent with the Statute.Footnote ¹⁴¹

60. With respect to Resolution 1593, Jordan argues that the Pre-Trial Chamber erred in finding that the resolution triggered the application of the entire legal framework of the Statute to the situation in Darfur and that Sudan has analogous rights and obligations as that of a State Party, for the purposes of the Darfur situation.Footnote ¹⁴² Jordan argues that the legal relationship between Jordan and Sudan continues to be governed by customary and conventional international law and, since the resolution did not implicitly waive Mr Al-Bashir's immunity, Jordan was under no obligation to arrest and surrender him while he was on Jordanian territory.Footnote ¹⁴³ Jordan avers that paragraph 1 of the resolution merely triggered the Court's jurisdiction over the situation in Darfur (not a State) in accordance with article 13(b) of the Statute, whilst paragraph 2 of the resolution, binding under article 25 of the UN Charter, pertains to Sudan's cooperation with the Prosecutor and with the Court; however, these two ‘specific decisions’ cannot be ‘transformed into much broader decisions regarding the relations of other States vis-à-vis the Court, as the Chamber has sought to do’.Footnote ¹⁴⁴

61. Jordan submits that the Impugned Decision's reasoning and conclusions regarding the effect of Resolution 1593 and the triggering of the Court's jurisdiction, which are drawn from the South Africa Decision, are ‘unconvincing’.Footnote ¹⁴⁵ Jordan argues that a UN Security Council referral ‘does not, and cannot’ have the effect of going further than the application of article 13(b) of the Statute which concerns only the Court's jurisdiction and that extending the application of the Statute in its entirety by virtue of the resolution does not find support either in the language of the resolution nor in article 13(b).Footnote ¹⁴⁶

62. Jordan alleges further that the Impugned Decision is unclear as to which specific provisions ‘if any’ of the Statute apply automatically to Sudan ‘by virtue of the referral’ pursuant to article 13(b) and which ones would apply by virtue of ‘any obligation imposed upon Sudan’ by the resolution.Footnote ¹⁴⁷ Jordan submits that article 13(b) provides that only the provisions concerning the exercise of the Court's jurisdiction become operative when a situation is referred by the UN Security Council rather than all the provisions of the Statute.Footnote ¹⁴⁸ Jordan argues further that the obligations to cooperate under Part 9 of the Statute do not relate to the Court's jurisdiction and do not apply to a non-State Party ‘simply’ by virtue of a referral.Footnote ¹⁴⁹ Jordan avers that if the entire Statute applied by virtue of a referral under article 13(b), paragraph 2 of Resolution 1593 would be unnecessary.Footnote ¹⁵⁰ In Jordan's view, the Pre-Trial Chamber acknowledged this point in the South Africa Decision but contradicted itself in the Impugned Decision when finding that ‘the Statute applies in its entirety with respect to the situation of Darfur, on one hand, and that Part 9 does not automatically apply, on the other’.Footnote ¹⁵¹

63. Moreover, Jordan alleges that a UN Security Council referral does not ‘automatically’ trigger the application of article 27(2) to a non-State Party.Footnote ¹⁵² In Jordan's view, this provision does not establish or limit the Court's jurisdiction because ‘immunities are simply a procedural bar’ that may prevent the Court's exercise of its jurisdiction or a State Party from arresting and surrendering a person upon the Court's request; the Court's jurisdiction ‘continues to exist even if immunities apply and it may be exercised whenever those immunities cease to apply, for example when they are waived’.Footnote ¹⁵³

64. Jordan avers that even if the Statute does apply in its entirety with respect to the situation in Darfur or even if, for the limited purpose of that situation, Sudan has rights and duties analogous to that of a State Party, Sudan must continue to be regarded as a non-State Party.Footnote ¹⁵⁴ Jordan argues further that even if article 27(2) were to apply to Sudan, its effects would be limited by article 98 of the Statute because Sudan is a non-State Party; hence while the resolution may prevent Sudan from claiming immunity of Mr Al-Bashir vis-à-vis the Court, the resolution ‘does not reach the issue of the obligations of other States vis-à-vis the Court’ which are governed by article 98 of the Statute nor ‘supersede the rules of customary and conventional international law applicable between Jordan and Sudan’.Footnote ¹⁵⁵

65. Jordan contends that paragraph 2 of Resolution 1593 does not refer to the removal of immunity, and according to the European Court of Human Rights, a ‘derogation in a UN Security Council resolution from the rules on State immunity […] cannot be presumed’.Footnote ¹⁵⁶ Jordan maintains that the resolution focuses on the relationship between Sudan, a non-State Party, and the Court; ‘it does not address the national criminal jurisdiction of other States’.Footnote ¹⁵⁷ Jordan adds that neither the travaux préparatoires of the resolution nor the UN Security Council's deliberations leading to its adoption provide any evidence of the intent to ‘suspend or remove’ Mr Al-Bashir's immunity from ‘national’ or ‘foreign’ criminal jurisdiction and the subsequent practice of UN organs and States demonstrates that Mr Al-Bashir's immunity under international law ‘remains fully applicable’.Footnote ¹⁵⁸ In Jordan's view, the South Africa Decision, upon which the Impugned Decision relies heavily, rejected the reasoning of earlier pre-trial chambers in ruling that there had been no waiver, implicit or explicit, of Mr Al-Bashir's immunity in Resolution 1593.Footnote ¹⁵⁹

66. Jordan argues further that, pursuant to article 98 of the Statute, Sudan has the ‘sovereign prerogative’ to waive such immunity and paragraph 2 of Resolution 1593 does not modify ‘the terms of article 98 in that sense’.Footnote ¹⁶⁰ Jordan contends that the resolution does not impose on States the obligation to ‘disregard’ Mr Al- Bashir's immunity as ‘the resolution imposes no obligations on States other than Sudan’.Footnote ¹⁶¹

67. With respect to jus cogens norms, Jordan submits that based on the Arrest Warrant Case and the ICJ case of Germany v. Italy, the prohibitions of genocide and crimes against humanity may be considered as such norms; however the status of these prohibitions ‘does not affect the immunities that operate to protect State officials from foreign criminal jurisdiction’.Footnote ¹⁶² Jordan adds that the ‘question of hierarchy of norms doesn't arise in this situation because the rules in question address quite different issues and are not in conflict’.Footnote ¹⁶³ In that regard, it avers that when Jordan ‘recognized the immunity of Mr Al-Bashir, it is not committing an act of genocide [,…] crimes against humanity [or…] transgressing a peremptory norm of international law’.Footnote ¹⁶⁴ Finally, Jordan argues that neither articles 4(2) nor 59 of the Statute would have a bearing on the issues raised in the present appeal.Footnote ¹⁶⁵

(b) The Prosecutor

68. The Prosecutor submits that the Pre-Trial Chamber correctly interpreted and applied the law when it concluded that Mr Al-Bashir's official capacity, as a Head of State, is irrelevant for the purposes of the Statute.Footnote ¹⁶⁶ The Prosecutor contends that ‘[t]o the extent that the Statute disapplies under article 27(2) all immunities which might be opposable to the request to arrest and surrender Mr Al-Bashir, it is unnecessary to entertain more general questions of the contours of those immunities in international law beyond the Statute’.Footnote ¹⁶⁷ Nothing in the Statute, the Prosecutor avers, ‘necessarily gives rise to ‘conflicting obligations’ because the Statute, being a treaty, acts ‘as lex specialis by reference to relevant customary law’.Footnote ¹⁶⁸ The Prosecutor maintains that ‘crimes such as those allegedly committed by Omar Al-Bashir ‘threaten the peace, security […] of the world’’.Footnote ¹⁶⁹ She adds that the regime created by States on the official capacity of suspects and accused was mutually agreed upon when ratifying the Statute to be irrelevant to the Court's exercise of jurisdiction and to ‘the issue and execution of requests of arrest and surrender of officials of States […] bound by the […] Statute’.Footnote ¹⁷⁰

69. The Prosecutor argues that the ‘two inter-dependent obligations’, i.e. the ‘vertical effect’ and the ‘horizontal effect’, are indivisible and constitute the ‘only possible reading’ of article 27 that is consistent with the applicable principles of interpretation under the Vienna Convention.Footnote ¹⁷¹ With respect to the vertical effect, the Prosecutor avers that while article 27 concerns the relations between the Court and a State Party, it also ‘exceptionally’ governs relations between the Court and a non-State Party ‘if the latter is a [UN Security Council] Situation-Referral State’.Footnote ¹⁷² The Prosecutor argues that, by virtue of article 27, the official capacity of a suspect or an accused ‘cannot bar judicial proceedings before the Court’; a State Party or a UN Security Council Situation-Referral State can neither ‘claim immunity vis-à-vis the Court's exercise of jurisdiction, nor validly object to any request addressed to it for arrest and surrender of its official’.Footnote ¹⁷³

70. The Prosecutor further submits that the horizontal effect is the ‘necessary corollary’ of its vertical effectFootnote ¹⁷⁴ in that States Parties must mutually respect that ‘the other is likewise bound ‘vertically’ by article 27.Footnote ¹⁷⁵ Referring to the plain terms of article 27 and State practice, the Prosecutor avers that the ‘direct implications’ of these effects are two-fold: (i) there is no conflicting obligation and therefore ‘Jordan was obliged to respect the vertical effect of article 27’; and (ii) Jordan could not rely on article 98(1) as a basis to not cooperate with the Court.Footnote ¹⁷⁶ According to the Prosecutor, Jordan's interpretation of article 27 in opposition to article 98 and the assumption that Sudan cannot be the subject of any obligations under the Statute are incorrect ‘premises’.Footnote ¹⁷⁷

71. The Prosecutor argues further that the Pre-Trial Chamber ‘properly’ found that article 27 applies to the whole Statute and article 98 does not apply to the present case;Footnote ¹⁷⁸ therefore there is no ‘material conflict’ between Jordan's international obligations.Footnote ¹⁷⁹ The Prosecutor asserts that the general structure of the Statute including the particular scheme of Part 9 ‘must […] be considered as relevant context in interpreting article 27’.Footnote ¹⁸⁰ She argues that the language of this provision makes it clear that ‘the approach to official capacity in Part 3 is intended to be the same as the approach in Part 9’.Footnote ¹⁸¹ In this respect she avers that article 27(2) not only bars a State from raising immunity when their officials appear before the Court as suspects, but also from raising immunity to avoid arresting and surrendering their own officials.Footnote ¹⁸²

72. The Prosecutor contends further that Jordan overlooks that article 27(2) is a particular application of the principle of equality before the Court, and therefore the reference to the Court's ‘jurisdiction’ has a broader meaning that ‘encompasses the full spectrum of the Court's proceedings, vis-à-vis suspects and accused persons but also State Parties and UN Security Council Situation-Referral States, such as Sudan’.Footnote ¹⁸³ She adds that ‘even if Parts 3 and 9 were intended arguendo to reflect different issues related to the question of immunity, the Appeals Chamber must still examine both parts and be satisfied that they do indeed serve different interests, such that they need not be reconciled’ given the presumption that ‘a treaty reflects a mutually coherent set of principles, displaced only by plain evidence of the drafters’ intentions’.Footnote ¹⁸⁴ The Prosecutor submits that the general obligation to cooperate is provided under article 86 and, mirroring the approach of article 27, this provision ‘recognises that the rights and obligations of State Parties are not exhaustively set out under Part 9’.Footnote ¹⁸⁵

73. The Prosecutor argues that contrary to Jordan's contention, articles 27 and 98(1) ‘can and must be read consistently’.Footnote ¹⁸⁶ The Prosecutor submits that while ‘article 98(1) is directed generally to “third States”’, it is ‘inapplicable to requests for the surrender of persons who are officials of States subject to the operation of article 27’ and in the present case to a UN Security Council Situation-Referral State such as Sudan.Footnote ¹⁸⁷ She argues that while Jordan ‘assumes’ that ‘Sudan is a “third State” whose immunity must be respected by the Court’,Footnote ¹⁸⁸ the term ‘“third State” is broad and does not itself appear to limit the States to which article 98(1) might apply’, as such term is used in the Statute ‘generally to describe “another” State, but without particular specification of its status’.Footnote ¹⁸⁹ She argues further that ‘[w]hen considering the particular question of the immunity of persons, however, […] the term “third State” in article 98(1) is better interpreted as referring only to States which have not “accepted the provision embodied in Article 27(2)”’.Footnote ¹⁹⁰ She reiterates that all States subject to the obligations of the Statute are bound, under article 27, to respect the non-applicability of immunities in all their dealings concerning the Court's exercise of jurisdiction (vertical effect).Footnote ¹⁹¹

74. The Prosecutor argues that article 98(1) does not preclude requests to States Parties to arrest and surrender officials of a Referral State, like Sudan, regardless of which interpretation of the term ‘third State’ is adopted and whether or not ‘this means the provision applies but factually there is no applicable immunity – or that the provision simply does not apply’.Footnote ¹⁹² The Prosecutor adds that article 98(1) established a procedural obligation for the Court to consider before proceeding with any request for arrest and surrender when any relevant immunities are owed by the requested State to the third State.Footnote ¹⁹³ She further contends that ‘the requested State is nothing more than the Court's agent in executing the Court's arrest warrant, and consequently, the enforcement jurisdiction being exercised is that of the Court and not that of the requested State’.Footnote ¹⁹⁴ She maintains that when the Court makes this assessment it must always first consider whether the relevant third State bears any duty to comply with article 27 of the Statute.Footnote ¹⁹⁵ The Prosecutor avers further that article 98(2) addresses agreements on matters ‘where a person is specifically ‘sent’ to the territory of a State Party under certain conditions’ and does not apply to the 1953 Convention.Footnote ¹⁹⁶

75. Referring to ICJ case-law, the Prosecutor maintains further that while ‘jus cogens norms are superior to ordinary rules of customary law, it's a question of scope of the jus cogens norm as to whether it necessarily conflicts with […] a rule of immunity’.Footnote ¹⁹⁷ Regarding her position on the immunity spectrum under customary international law – either to surrender or to prohibit the surrender – she submits that she is unsure that there is at this stage sufficiently settled State practice and opinio juris to support it.Footnote ¹⁹⁸ The Prosecutor adds that a ‘customary rule restricting States from enforcing requests for arrest and surrender by a competent international court’ does not serve the purpose underlying Head of State immunity.Footnote ¹⁹⁹

76. With respect to Resolution 1593, the Prosecutor submits that it was unnecessary for the UN Security Council to expressly state that the Statute applies as a whole or that Sudan's obligation to cooperate with the Court is regulated by the Statute because the resolution referred the situation in Darfur to the Court pursuant to article 13(b) which stipulates that the Court may exercise its jurisdiction ‘in accordance with the provisions of [the] Statute’, including article 27 and Part 9 of the Statute.Footnote ²⁰⁰ It follows, the Prosecutor avers, that the resolution ‘did not need to expressly set out the effect that it would have on Omar Al-Bashir's immunities that he otherwise enjoys under international law’.Footnote ²⁰¹ The Prosecutor avers that contrary to the ad hoc tribunals, where the UN Security Council created a ‘new sui generis body’, the Court ‘already exists and applies an established Statute’,Footnote ²⁰² and Resolution 1593, by empowering the Court to exercise its jurisdiction, determined, at the same time, that it would exercise that jurisdiction as per the Statute.Footnote ²⁰³ She avers that the Court's jurisdiction ‘once triggered pursuant to any of the three methods’ set out in article 13 can only be exercised pursuant to the legal regime of the Statute, as supported inter alia by the wording of the chapeau of article 13, and therefore, ‘no question arises as to which provisions are applicable and which are not’.Footnote ²⁰⁴

77. The Prosecutor submits that whilst paragraph 2 of Resolution 1593 is the ‘source’ of Sudan's obligations to cooperate with the Court, the ‘content of such duty to cooperate with the Court’ is regulated by the Statute and not by the resolution.Footnote ²⁰⁵ The Prosecutor submits that it is paragraph 1 of the resolution that triggers the Court's jurisdiction and ensures that the Statute applies in its entirety to the interactions between Sudan and the Court with respect to the situation in Darfur, whilst paragraph 2 ‘clarifies the cooperation obligations of different actors’, the content of those cooperation duties contained in Part 9.Footnote ²⁰⁶ The Prosecutor argues that the effect of Resolution 1593 and Sudan's resulting obligation to cooperate fully is that ‘Sudan is placed in a situation comparable to that of a State Party’; this ‘accords with the UN Charter, which permits the Security Council to impose obligations on States’.Footnote ²⁰⁷ While Sudan ‘is [not] fully equated to a State Party’ as its obligations are limited to the Court's exercise of jurisdiction in the situation in Darfur, the Prosecutor argues that the interactions between Sudan and the Court are regulated by the Statute.Footnote ²⁰⁸ The Prosecutor contends that obliging Sudan - a UN Security Council ‘Situation-Referral State’ - to cooperate with the Court ‘is consistent with the object and purpose of the Statute’ because referrals become ‘effective’ ‘by placing a [UN Security Council] Situation-Referral State in a position comparable to other States that are within the jurisdictional scope of the Court’.Footnote ²⁰⁹ She adds that because they are already bound by the Statute to comply with the obligations contained therein. States Parties are not specifically named in the resolution.Footnote ²¹⁰

78. The Prosecutor contends that if the UN Security Council ‘had intended to provide for an exception’ to the entire application of the Statute, it would have done so expressly, as it did for instance in paragraph 6 of Resolution 1593.Footnote ²¹¹ The Prosecutor adds that this paragraph shows that the UN Security Council ‘was aware of the immunity issues for ‘nationals, current or former officials or personnel from a contributing State’’ and placed them ‘outside the Court's jurisdiction without affecting the general application of the Statute, including article 27(2), to nationals of Sudan’.Footnote ²¹²

79. The Prosecutor contends that the Inquiry Report from the International Commission of Inquiry on violations of international humanitarian law and human rights law in Darfur [the ‘Cassese Commission Report’]Footnote ²¹³ – which mentions the possibility of prosecuting government officials – shows that the UN Security Council was aware that public officials might be implicated in the commission of crimes in Darfur and could be the subject of investigation by the Prosecutor.Footnote ²¹⁴ She argues that had the UN Security Council intended to ‘exempt’ any Sudanese public officials from criminal prosecution on account of their immunities under international law, ‘it would have done so expressly’, as it did for example in paragraph 6 of the same resolution.Footnote ²¹⁵ On this point the Prosecutor also submits that ‘the non-applicability of immunities also accords with the object and purpose of the resolution’ as the ‘main purpose is to refer the situation in Darfur to the Court, but without the removal of immunities for Sudanese State officials, the referral would be largely, if not wholly, ineffective’.Footnote ²¹⁶

(c) The amici curiae

80. The African Union submits that there is a general rule under international law that Heads of State enjoy immunity as there are no exceptions to this basic rule ‘even with regard to crimes falling within the jurisdiction of the Court or jus cogens crimes’; therefore Mr Al-Bashir, as Head of State of Sudan, a State not party to the Statute, enjoys immunity from arrest and surrender.Footnote ²¹⁷ With respect to article 27(2) of the Statute, the African Union argues that this provision excludes the operation of immunity when a suspect or accused is before the Court, ‘but does not affect immunity from foreign domestic jurisdiction, including when “arrest is sought”’ by the Court and the duty to cooperate in the arrest and surrender ‘does not apply in relation’ to a Head of State of a non-State Party by virtue of article 98.Footnote ²¹⁸ The African Union asserts that article 27 of the Statute, while removing immunity in proceedings before the Court (vertical application of immunities), ‘does not affect the horizontal application of immunities between States which remains intact under article 98 of the Rome Statute’.Footnote ²¹⁹ It argues that the duty to cooperate on States to arrest and surrender contained in Part 9 is qualified by that later provision.Footnote ²²⁰

81. The African Union contends further that when interpreting the Statute, the Court must take into account customary international lawFootnote ²²¹ and article 98 of the Statute which incorporates the rules of customary international law regarding Head of State immunity from the exercise of foreign jurisdiction and provides for instances where there is no duty to cooperate with the Court.Footnote ²²² It further contends that while article 27 clearly addresses a procedural matter, article 98 addresses the international obligations of States Parties.Footnote ²²³ The African Union argues further that article 4 of the Convention against Genocide does not deal with immunity; rather it addresses the matter of responsibility and not immunity.Footnote ²²⁴ With respect to the ICJ Barcelona Traction Case, the African Union recalls that years after that case, the ICJ did not read into paragraphs 33 and 34 of that case the complete removal of immunity ratione personae in the warrant of arrest and jurisdictional immunities cases.Footnote ²²⁵

82. The African Union also submits that Resolution 1593 does not waive the immunity of Mr Al-Bashir and a referral under article 13(b) of the Statute does not place a State that is not a party to it in a situation analogous to that of a State Party.Footnote ²²⁶ The African Union submits that notwithstanding the delegation of responsibilities by Member States to the UN Security Council,Footnote ²²⁷ any waiver of immunity by virtue of Resolution 1593 needs to be explicit.Footnote ²²⁸ The African Union maintains that the contents of the Cassese Commission Report cannot be read into the resolutionFootnote ²²⁹ as the main purpose of the resolution is to provide the legal basis for the UN Security Council to refer the situation to the Court, and thereby confer jurisdiction on the Court.Footnote ²³⁰ The African Union avers that the resolution ‘does not purport to modify the legal framework of the Rome Statute nor to carve out an exception in respect of immunities otherwise available under international law’.Footnote ²³¹ According to the African Union, since Sudan did not waive the immunity ratione personae of its Head of State, the horizontal effect of this immunity still applies vis-à-vis other states.Footnote ²³²

83. The League of Arab States agrees with Jordan's arguments that the Pre-Trial Chamber erred in its interpretation of the obligations of the States Parties regarding immunity of Heads of State, that article 27(2) does not take away the immunity of Heads of States on the horizontal level as it refers to immunity with respect to the Court only and that article 98(2) applies.Footnote ²³³ The League of Arab States adds that the Pre-Trial Chamber erred in fact and in law in finding that Sudan was not party to the 1953 Convention and that Jordan had an obligation to respect the immunity of Mr Al-Bashir under, inter alia, the 1953 Convention and under customary international law.Footnote ²³⁴ The League of Arab States avers that the equation of ‘Situation-Referral States’ with ‘States Parties’ leads to ‘manifestly absurd results’, and that ‘Situation-Referral States’ cannot be ‘fully equated’ with States Parties, due to the lack of voting rights in the Assembly of States Parties and the limitation of obligations to the Court's exercise of jurisdiction, excluding the obligation to pay contributions.Footnote ²³⁵ Consequently, the League of Arab States avers that Sudan is a non-State Party and must be treated as such for the purposes of the Statute and, in particular, article 98 thereof.Footnote ²³⁶

84. Mr O'Keefe contends that, given that the Court had not obtained Sudan's waiver of the inviolability and immunity to which Mr Al-Bashir was entitled under international law, when proceeding with a request to Jordan to arrest and surrender Mr Al-Bashir, the Court acted contrary to article 98(1) and thereby exceeded its powers under the Statute.Footnote ²³⁷ Mr O'Keefe submits that no customary exception to immunity ratione personae from foreign criminal jurisdiction, or inviolability from foreign arrest, exists in respect of international crimes.Footnote ²³⁸ Moreover, he avers there is insufficient state practice and opinio juris to establish an exception specifically in respect of surrender to an international court.Footnote ²³⁹ He adds that there is no such thing legally as the ius puniendi of the international community, other than the community of UN Member States inter se acting through an explicit decision of the UN Security Council under Chapter VII of the UN Charter.Footnote ²⁴⁰ Mr O'Keefe asserts that the distinct concepts of jus cogens and obligations erga omnes are irrelevant to the present proceedings.Footnote ²⁴¹ He contends that the immunity ratio personae of Heads of State is absolute, even in the case of genocide, on the basis that any arrest or prosecution will inevitably interfere with the performance of their functions on behalf of the State, for so long as they remain in office.Footnote ²⁴² Mr O'Keefe submits that article 98(1) applies with respect to any person of a State, whether it is a State Party or non-State Party: that is the meaning of ‘third State’ in the present context.Footnote ²⁴³ Mr O'Keefe submits that there is no relationship between article 86 and the second sentence of article 89 of the Statute, which apply to the arrest and surrender of a person to the Court by a State Party, on the one hand, and article 27(2) of the Statute, which applies to proceedings against a person before the Court following arrest and surrender, on the other hand.Footnote ²⁴⁴ Moreover, he avers that article 98(1) excludes the obligations of arrest and surrender of officials of a third States ‘in relation to whom immunity is owed’.Footnote ²⁴⁵ Mr O'Keefe submits that if, however, article 89(1) is not to be construed in conjunction with article 98(1), then the solution is not to look to article 27(2) but to rely on an explicit waiver, as may be requested by the Court, albeit that it may be refused by States Parties.Footnote ²⁴⁶ He maintains that such an approach derives from the overall structure of the Statute, where Part 3 concerns the Court and Part 9 concerns cooperation and assistance, and in the context of which it would be anomalous for article 27(2) to have any broader application.Footnote ²⁴⁷

85. In Mr O'Keefe view, Resolution 1593 does not alter the ordinary application of article 98(1).Footnote ²⁴⁸ He argues that the contrary would offend against the pacta tertiis rule, which stipulates that a treaty creates neither rights nor obligations in respect of a State not party to it without that State's consent, as a cardinal tenet of customary international law.Footnote ²⁴⁹ Mr O'Keefe submits that paragraph 2 of the resolution ‘does no more’ than oblige Sudan to comply with any specific request made by the Court or the Prosecutor – ‘[i]t does not of itself render binding on Sudan, a State not party to the Statute, the full range of obligations of cooperation, including the obligation of arrest and surrender in article 89(1), undertaken in accordance with Part 9 of the Statute by States Parties’.Footnote ²⁵⁰ He adds that ‘it does not mean that the Court has obtained the cooperation of Sudan for the waiver of immunity of President Al-Bashir’ in terms of article 98(1); as demonstrated by the ‘manifest and persistent inaction’ of the UN Security Council in response to repeated findings of non-cooperation and referrals.Footnote ²⁵¹

86. Mr Tsagourias submits that article 27 renders the immunities attached to state officials inapplicable between and among States Parties and as this provision is clear there is no lacuna; therefore neither treaty law nor customary law can be used to reinterpret article 27.Footnote ²⁵² Mr Tsagourias avers that by referring the situation in Darfur to the Court and imposing an obligation upon Sudan to cooperate with the Court, ‘Resolution 1593 rendered Sudan a quasi State party to the Statute for the referred situation’,Footnote ²⁵³ consequently article 98 is inapplicable as Sudan does not fall within the category of a third State for the purposes of that article.Footnote ²⁵⁴

87. Mr Zimmermann suggests that the Appeals Chamber consider a different approach based on the abus de droit doctrine.Footnote ²⁵⁵ He argues that since Sudan is not complying with its obligations to ‘cooperate fully’ under Resolution 1593, including arresting and surrendering its Head of State, Sudan is legally barred from invoking immunities and any attempt to invoke such immunity would be an abus de droit.Footnote ²⁵⁶ Consequently, Mr Zimmermann argues that Jordan was not under an obligation to respect Head of State immunity of Mr Al-Bashir and Jordan was not in a situation foreseen by article 98.Footnote ²⁵⁷ Furthermore, Mr Zimmermann submits that Head of State immunity does not have an erga omnes character as only Sudan could invoke it if Jordan was to arrest Mr Al-Bashir.Footnote ²⁵⁸ Mr Zimmermann submits that pursuant to paragraph 2 of Resolution 1593, Sudan is under an obligation under article 25 of the UN Charter to arrest and surrender Mr Al-Bashir to the Court because the term ‘cooperate’ in the resolution implicitly refers back to Part 9 of the Statute.Footnote ²⁵⁹ He contends that the UN Security Council intentionally placed this obligation upon Sudan as evinced by its express exemption of officials from certain States in paragraph 6,Footnote ²⁶⁰ and by the fact that the resolution used the same language as that used in relation to the ICTY and ICTR, in resolutions 827 and 955 respectively, which was read as applying to persons equally regardless of official capacity.Footnote ²⁶¹

88. Ms Lattanzi submits that article 27 represents a treaty derogation to the immunities enjoyed by Heads of State which binds (i) States Parties; (ii) States that accepted ad hoc the Court's jurisdiction; and (iii) non-party States referred by the UN Security Council.Footnote ²⁶² She submits that article 27 applies to the horizontal relationship between Jordan and Sudan and that article 98(1) is simply irrelevant in the present situation.Footnote ²⁶³ She avers that the notion of jurisdiction under article 27(2) ‘cannot be belittled to “adjudicatory jurisdiction”’.Footnote ²⁶⁴ Ms Lattanzi further submits that the 1953 Convention does not fall within the scope of article 98(2), which concerns those specific agreements affirming the exclusive jurisdiction of States ‘sending’ personnel abroad bilaterally or through contribution to multilateral operations (paragraph 6 of Resolution 1593 confirms this by referring to the same agreements).Footnote ²⁶⁵ Ms Lattanzi argues that the effect of Resolution 1593 is to create new obligations and that the travaux préparatoires show that UN Security Council referrals ‘were understood as a substitute for States’ conferred jurisdiction’.Footnote ²⁶⁶ She avers that, pursuant to the chapeau of article 13 of the Statute, when situations are referred to the Court by the UN Security Council, the Court exercises jurisdiction in accordance with the Statute in the same way as in situations referred by States Parties or opened proprio motu by the Prosecutor; article 53 of the Statute does not provide for a different procedure.Footnote ²⁶⁷ Ms Lattanzi submits that if the UN Security Council had explicitly raised the exception to immunities raised in article 27, this would have constituted undue interference in the exclusive jurisdiction of the Court, that is to decide even in the interests of justice under article 53(2), which suspects should be prosecuted in the Darfur situation.Footnote ²⁶⁸ Referring, inter alia, to articles 4(2) and 59 of the Statute, Ms Lattanzi contends that local authorities act on behalf of the Court when they execute warrants of arrest issued by the Court.Footnote ²⁶⁹

89. Mr Kreß submits that there are two main legal avenues justifying the conclusion that article 98(1) does not prevent the Court from proceeding with a request for the arrest and surrender of Mr Al-Bashir on the territory of a State Party: the customary law avenue,Footnote ²⁷⁰ and the UN Security Council avenue.Footnote ²⁷¹ Mr Kreß argues that the first legal avenue is based on the view that there exists an exception to immunity ratione personae of States for the purpose of proceedings before the Court, and that it extends to the triangular legal relationship of vertical cooperation between the Court, a requested State Party and the non-State Party of which the person sought is the incumbent Head of State.Footnote ²⁷² According to Mr Kreß such an exception includes the arrest and surrender of a sitting Head of State by a State Party at the Court's request – not as a customary obligation to arrest and surrender, but as a customary right to ‘non-existence of immunity’.Footnote ²⁷³ Mr Kreß avers that article 27 of the Statute does not innovate on the existing content of customary international law;Footnote ²⁷⁴ rather, the international criminal court exception has been authoritatively confirmed and applied subsequently as a cardinal principle of international criminal law codified in article 27(2) of the Statute.Footnote ²⁷⁵ Mr Kreß submits further that there exists an international community to which states owe customary international law obligations. As a consequence, the Court's jurisdiction does not derive from the delegation of national criminal jurisdiction. Rather, the evolution of international criminal law arises from the notion that war crimes are so horrendous that they affect the international community as a whole. Therefore, there is a ius puniendi that transcends state sovereignty and resides in the international community itself.Footnote ²⁷⁶ Mr Kreß adds that article 98(1) of the Statute merely acknowledges the possibility of an inconsistency arising between a cooperation request by the Court and an immunity obligation of a State Party towards a third State, and entrusts that the Court may not proceed with any such request in the event of any inconsistency arising.Footnote ²⁷⁷ Mr Kreß submits that the ordinary wording of article 98(2) of the Statute does not support the inclusion of the 1953 Convention within the scope of relevant agreements.Footnote ²⁷⁸

90. Ms Gaeta submits that, while she agrees with Mr Kreß that article 27(2) is reflective of customary international law, this general rule removing immunities does not extend to the matter of judicial cooperation; as a consequence, article 98(1) is applicable to the case at hand and Jordan was not obliged to execute the request to arrest and surrender Mr Al-Bashir.Footnote ²⁷⁹ In any case, she argues that reliance upon the UN Security Council referral to bring Sudan within the jurisdiction of the Court is unconvincing for the following reasons:Footnote ²⁸⁰ (i) it is prejudicial to the integrity of the Court as a court of law which is bound to apply the Statute independently of the political intervention of the UN Security Council;Footnote ²⁸¹ (ii) it implies that, in triggering the jurisdiction of the Court, the UN Security Council could modify the legal framework of the Statute at its discretion;Footnote ²⁸² and (iii) ‘it does not conform to the legal nature’ of the Court as a treaty-based international organisation ‘governed by the principle of specialty’, which can only be endowed with powers and competencies delegated to it by States Parties on the basis of the Statute.Footnote ²⁸³ She adds that the interpretation given in the Democratic Republic of the Congo Decision, that the resolution had the effect of implicitly waiving the immunities of Mr Al-Bashir, contradicts the text of article 98(1) which only allows the relevant third state and not other entities to waive immunities; moreover, the resolution ‘says nothing whatsoever about the immunities eventually accruing to [Sudan's] high ranking state officials and its Head of State’.Footnote ²⁸⁴

91. Mr Magliveras argues that the Appeals Chamber should interpret the applicable legal provisions in the light of the object and purpose of the Statute.Footnote ²⁸⁵ He contends that the 1996 Code of Crimes Against Peace, Security of Mankind sufficiently proves that genocide, extermination, torture and rape are prohibited as jus cogens and therefore, these prohibitions are opposable to Sudan and Mr Al-Bashir should not be granted impunity as a matter of domestic Sudanese law.Footnote ²⁸⁶ He adds that article 86 of the Statute should be interpreted as covering ‘the cooperation envisaged in Part 9 in its entirety and not in a piecemeal fashion’.Footnote ²⁸⁷

92. Mr Robinson et al. contend that the interpretation of the Pre-Trial Chamber is the most convincing reconciliation of the relevant provisions of the Statute namely, articles 27, 86 and 98, with customary international law, and Resolution 1593.Footnote ²⁸⁸ In that regard, they argue that contrary to what was suggested during the hearing before the Appeals Chamber, Part 3 of the Statute ‘informs Part 9’ of the Statute.Footnote ²⁸⁹ They contend that ‘a state obliged to cooperate fully with the ICC has no immunity vis-à-vis the ICC to waive, by virtue of Article 27(2)’.Footnote ²⁹⁰ Furthermore, they urge the Court ‘not to adopt the international court exception at this time’.Footnote ²⁹¹ They also argue that the international court agreement, that emerged with the decision of the Sierra Leone Special Court in the Charles Taylor Case, does not ‘fit well’ with some basic legal principles and has received severe criticism even from strong supporters of the Court.Footnote ²⁹² They submit further that: (i) the practice of the UN Security Council shows the opposite as it actually uses explicit language to preserve immunities; (ii) the UN Security Council ‘routinely issues ‘sensitive’ orders in a brief and terse manner’; (iii) the UN Security Council is not required to specifically single out article 27(2) from the Statute which contains other sensitive provisions; and, (iv) Resolution 1593 did expressly remove immunities (the ‘cooperate fully language’ imposed on Sudan is the identical ‘formula and technique’ that was used by the UN Security Council to remove immunity before the ICTY and ICTR).Footnote ²⁹³

93. Mr Newton submits that, on the basis of the data collected in the ‘Mapping Bashir Research Project’, which aims at providing a consolidated compilation of Mr Al-Bashir's travels since arrest warrants were issued against him,Footnote ²⁹⁴ consistent State practice and opinio juris is lacking as to whether States consider themselves under any international obligation to arrest Mr Al-Bashir.Footnote ²⁹⁵

94. Ms Ciampi and Ms Gamarra submit that article 27(2): (i) removes the immunity of sitting Heads of State vis-à-vis the Court and prevails over other obligations stemming from treaty or customary international law relating to immunity; and (ii) allows the arrest and surrender by a State Party of officials of a State under an international obligation to cooperate with the Court.Footnote ²⁹⁶ They argue that article 27(2) is applicable to Sudan and article 98 is not applicable to Jordan.Footnote ²⁹⁷ Ms Ciampi and Ms Gamarra submit that the UN Security Council referral results in the applicability of the Statute to the situation referred - including article 27 on the derogation to the immunities enjoyed by Heads of State which binds States Parties, States that accepted the Court's jurisdiction and non-party States referred by the UN Security Council and therefore article 98(1) is irrelevant.Footnote ²⁹⁸

(a) Article 27(2) of the Statute and customary international law

100. Article 27(2) of the Statute provides as follows:

101. The Appeals Chamber notes that Head of State immunity, which has been asserted in the case at hand, is a manner of immunity that is, as such, accepted under customary international law.Footnote ³⁰⁶ That immunity prevents one State from exercising its criminal jurisdiction over the Head of State of another State. It is important to stress that immunity of that kind operates in the context of relations between States.

102. The most direct effect of article 27(2) of the Statute is that a Head of State cannot claim Head of State immunity when he or she appears before the ICC for prosecution in accordance with the provisions on the exercise of jurisdiction under articles 12 et seq. of the Statute. Nor does Head of State immunity present a bar to the Court opening an investigation in relation to or issuing a warrant of arrest against a Head of State. This was specifically recognised by the ICJ in the Arrest Warrant Case.Footnote ³⁰⁷

103. It is of note that article 27(2) of the Statute is a clear provision in conventional law; but it also reflects the status of customary international law. In this regard, the Appeals Chamber notes, first, article 7 of the Nuremberg Charter of the International Military Tribunal at Nuremberg, which provides as follows:

104. On 11 December 1946, the UN General Assembly expressly affirmed the ‘principles of international law recognized by the Charter of the Nürnberg Tribunal and the judgment of the Tribunal’ and directed the newly established International Law Commission to ‘treat as a matter of primary importance plans for the formulation […] of the principles recognized’ therein.Footnote ³⁰⁹ The International Law Commission subsequently formulated the Nuremberg Principles, Principle III of which reads as follows:

105. The same principle was included in article 3 of the International Law Commission's draft Code of Offences against the Peace and Security of Mankind.Footnote ³¹¹ The Convention against Genocide contains a similar provision, providing in its article IV:

106. There is no suggestion in any of these instruments that immunity of Heads of State could stand in the way of their prosecution before an international court for international crimes.

107. Further milestones in this regard were the Statutes of the international criminal tribunals – the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda [the ‘ICTY’ and the ‘ICTR’] – which the UN Security Council adopted in 1993 and 1994, respectively. Both Statutes include provisions similar to Principle III of the Nuremberg Principles.Footnote ³¹² In his reports on the draft Statutes of the ICTY and ICTR, the UN Secretary-General indicated that they should contain provisions ‘which specify that a plea of head of State immunity […] will not constitute a defence, nor will it mitigate punishment’.Footnote ³¹³ It is of note that the ICTY issued an indictment against President Slobodan Milošević on 22 May 1999, while he was still President of Serbia.Footnote ³¹⁴

108. The Statute of the Special Court for Sierra Leone [the ‘SCSL’], a court established pursuant to a UN Security Council resolution by an agreement between the Government of Sierra Leone and the UN Secretary-General, also contains a provision rejecting the suggestion that Head of State immunity could be invoked against the SCSL's exercise of jurisdiction. Article 6(2) of the SCSL StatuteFootnote ³¹⁵ stipulates:

109. The SCSL confirmed an indictment against Mr Charles Taylor on 7 March 2003Footnote ³¹⁷ and issued a warrant for his arrest, while he was still President of Liberia.Footnote ³¹⁸ Mr Taylor filed an application before the SCSL, requesting that the court quash the indictment and set aside the arrest warrant on the ground that he was immune from the SCSL's jurisdiction.Footnote ³¹⁹ A panel of the SCSL's Appeals Chamber heard this application, noting that it was called upon to decide ‘whether it was lawful for the Special Court to issue an indictment and to circulate an arrest warrant in respect of a serving Head of State’.Footnote ³²⁰ It answered this question in the affirmative, noting, first, that the SCSL was an international court,Footnote ³²¹ and, second, relying, inter alia, on the ICJ's finding in the Arrest Warrant Case, that Head of State immunity did not find application before international courts.Footnote ³²² It found that ‘the principle seems now established that the sovereign equality of states does not prevent a Head of State from being prosecuted before an international criminal tribunal or state’.Footnote ³²³

110. Turning to the jurisprudence of the ICC, the Appeals Chamber recalls that Pre-Trial Chamber I, in the ‘Corrigendum to the Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir’ [the ‘Malawi Decision’],Footnote ³²⁴ reached the same conclusion in a situation that was identical to the case at hand: a State Party to the Rome Statute having failed to execute a request for the arrest and surrender of Mr Al-Bashir.Footnote ³²⁵ Pre-Trial Chamber I, having recalled the irrelevance of Head of State immunity in respect of international courts since the end of the First World War, distinguished the case before it from that decided by the ICJ in the Arrest Warrant Case, noting that the latter was ‘concerned solely with immunity across national jurisdictions’ and therefore ‘distinct from the present circumstances, as here an international court is seeking arrest for international crimes’.Footnote ³²⁶ Pre-Trial Chamber I also recalled the passage of the judgment in the Arrest Warrant Case that recognises that Head of State immunity does not find application before international courts.Footnote ³²⁷

111. Pre-Trial Chamber I found that:

112. Pre-Trial Chamber I considered that ‘Malawi, and by extension the African Union, are not entitled to rely on article 98(1) of the Statute to justify refusing to comply with the Cooperation Requests’,Footnote ³²⁹ noting, inter alia, ‘an increase in Head of State prosecutions by international courts in the last decade’, which shows ‘that initiating international prosecutions against Heads of State have gained widespread recognition as accepted practice’.Footnote ³³⁰ It also noted the number of States Parties to the Rome Statute and the fact that States not parties to the Statute allowed twice for situations to be referred to the Court by the UN Security Council.Footnote ³³¹ Pre-Trial Chamber I concluded that the ‘international community's commitment to rejecting immunity in circumstances where international courts seek arrest for international crimes has reached a critical mass’ and that ‘[t]here is no conflict between Malawi's obligations towards the Court and its obligations under customary international law; therefore, article 98(1) of the Statute does not apply’.Footnote ³³²

113. The Appeals Chamber fully agrees with Pre-Trial Chamber I's conclusions in the Malawi DecisionFootnote ³³³ as well as that of the SCSL's Appeals Chamber in the Taylor case and notes that there is neither State practice nor opinio juris that would support the existence of Head of State immunity under customary international law vis-à-vis an international court. To the contrary, as shown in more detail in the Joint Concurring Opinion of Judges Eboe-Osuji, Morrison, Hofmański and Bossa, such immunity has never been recognised in international law as a bar to the jurisdiction of an international court.Footnote ³³⁴ To be noted in that regard is the role of judicial pronouncements in confirming whether or not a rule of customary international law has as such ‘crystallized’.Footnote ³³⁵ The Appeals Chamber is satisfied that the pronouncements of both the Pre-Trial Chamber in the Malawi Decision and of the Appeals Chamber of the Special Court for Sierra Leone have adequately and correctly confirmed the absence of a rule of customary international law recognising Head of State immunity before international courts in the exercise of jurisdiction. The Appeals Chamber accordingly rejects any contrary suggestion of the Pre-Trial Chamber in that regard, in both this case and in the case concerning South Africa.

114. The absence of a rule of customary international law recognising Head of State immunity vis-à-vis international courts is relevant not only to the question of whether an international court may issue a warrant for the arrest of a Head of State and conduct proceedings against him or her, but also for the horizontal relationship between States when a State is requested by an international court to arrest and surrender the Head of State of another State. As further explained in the Joint Concurring Opinion of Judges Eboe-Osuji, Morrison, Hofmański and BossaFootnote ³³⁶ and correctly found by the Pre-Trial Chamber in the Malawi Decision,Footnote ³³⁷ no immunities under customary international law operate in such a situation to bar an international court in its exercise of its own jurisdiction.

115. The Appeals Chamber considers that the absence of a rule of customary international law recognising Head of State immunity vis-à-vis an international court is also explained by the different character of international courts when compared with domestic jurisdictions. While the latter are essentially an expression of a State's sovereign power, which is necessarily limited by the sovereign power of the other States, the former, when adjudicating international crimes, do not act on behalf of a particular State or States. Rather, international courts act on behalf of the international community as a whole.Footnote ³³⁸ Accordingly, the principle of par in parem non habet imperium, which is based on the sovereign equality of States, finds no application in relation to an international court such as the International Criminal Court.

116. The Appeals Chamber notes further that, given the fundamentally different nature of an international court as opposed to a domestic court exercising jurisdiction over a Head of State, it would be wrong to assume that an exception to the customary international law rule on Head of State immunity applicable in the relationship between States has to be established; rather, the onus is on those who claim that there is such immunity in relation to international courts to establish sufficient State practice and opinio juris. As further explained in the Joint Concurring Opinion of Judges Eboe-Osuji, Morrison, Hofmański and Bossa, there is no such practice or opinio juris.Footnote ³³⁹

117. In sum, the Appeals Chamber finds that there was no rule of customary international law that would have given Mr Al-Bashir immunity from arrest and surrender by Jordan on the basis of the request for arrest and surrender issued by the Court. It follows that there was no ground for Jordan not to execute the request for arrest and surrender and that therefore it did not comply with its obligation to cooperate with the Court pursuant to articles 86 et seq. of the Statute.

118. As recalled above, the Pre-Trial Chamber in the decision under review took a different approach to the one it adopted in the Malawi Decision. Contrary to that decision and the Appeals Chamber's above finding, it found that it was unable to identify ‘a rule in customary international law that would exclude immunity for Heads of State when their arrest is sought for international crimes by another State, even when the arrest is sought on behalf of an international court, including, specifically, this Court’.Footnote ³⁴⁰ Nevertheless, it concluded that Head of State immunity did not stand in the way of Mr Al-Bashir's arrest by Jordan, based on the interplay between the relevant provisions of the Statute and Sudan's obligation to ‘cooperate fully’ with the Court pursuant to paragraph 2 of Resolution 1593.

119. While the Appeals Chamber, for the reasons set out above, rejects the Pre-Trial Chamber's finding that there is immunity under customary international law for Heads of State when their arrest is sought for international crimes by this Court, the Appeals Chamber notes that the Pre-Trial Chamber nevertheless reached the same conclusion as the Appeals Chamber, namely that Jordan should have arrested and surrendered Mr Al-Bashir. The Pre-Trial Chamber did so based on its interpretation of the Statute and bearing in mind Sudan's position under Resolution 1593. The Appeals Chamber considers that this interpretation of the Statute was, as such, correct, as will be demonstrated in the subsequent sections.

(b) Articles 27(2) and 98 of the Statute and their impact on obligations between State Parties

120. The Pre-Trial Chamber found that the effect of article 27(2) of the Statute on States Parties of the Rome Statute is two-fold: it prevents them from invoking any immunity belonging to them under international law (i) ‘as a ground for refusing arrest and surrender of a person sought by the Court (vertical effect)’; and (ii) ‘when cooperation in the arrest and surrender of a person to the Court is provided by another State Party (horizontal effect)’.Footnote ³⁴¹ While the Appeals Chamber, for the reasons set out above, disagrees with the Pre-Trial Chamber's finding as to the existence of immunity vis-à-vis this Court, it confirms the correctness of the Pre-Trial Chamber's interpretation of article 27(2) of the Statute.

(c) Resolution 1593 and the applicability of article 27(2) of the Statute to Sudan

133. The Appeals Chamber will now turn to the next question, namely the effect of Resolution 1593 on the issue of whether Sudan can invoke Head of State immunity in relation to warrants of arrest issued by the Court for alleged crimes arising from the situation in Darfur, Sudan. In this regard, the Pre-Trial Chamber found that, as a result of Resolution 1593 triggering the jurisdiction of the Court under article 13(b) of the Statute, ‘the legal framework of the Statute applies, in its entirety, with respect to the situation referred’,Footnote ³⁵⁹ and 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’.Footnote ³⁶⁰ Accordingly, in the Pre-Trial Chamber's view, Sudan cannot invoke Head of State immunity vis-à-vis the Court, or vis-à-vis States Parties that are executing requests by the Court for Mr Al-Bashir's arrest and surrender.Footnote ³⁶¹

134. On appeal, Jordan argues that Sudan cannot be regarded to be a State Party of the Statute, even after the referral,Footnote ³⁶² and that the referral only affects the vertical relationship between Sudan and the Court, and does not remove immunity vis-à-vis other States.Footnote ³⁶³ The Appeals Chamber finds these arguments unpersuasive, for the following reasons.

135. As mentioned above, in accordance with article 13(b) of the Statute, the exercise of the Court's jurisdiction can be triggered by a referral by the UN Security Council, acting under Chapter VII of the UN Charter. Article 13(b) puts the ICC at the disposal of the UN Security Council as a tool to maintain or restore international peace and security, thus obviating the need for the UN Security Council to create new ad hoc tribunals for this purpose.Footnote ³⁶⁴ This is what occurred in relation to the situation in Darfur, Sudan, which was referred to the Prosecutor of the Court by virtue of Resolution 1593. The chapeau of article 13 stipulates that, regardless of how the Court's jurisdiction is triggered, it must be exercised ‘in accordance with [the] Statute’. This means that, also in case of a referral by the UN Security Council, the Court is bound by the provisions of the Statute. This includes the cooperation regime, which is regulated by Part 9 of the Statute.

136. The Appeals Chamber notes that, leaving aside any cooperation obligations that States may have as a result of resolutions of the UN Security Council, the cooperation regime, as set out in Part 9 of the Statute, makes a distinction between the obligations of States Parties to the Rome Statute on one hand, and cooperation by States not parties to the Statute on the other hand. As concerns the former, article 86 of the Statute stipulates the general obligation of States Parties to cooperate fully with the Court; the more specific obligations are set out in the subsequent articles. Cooperation of States not parties to the Statute is addressed in article 87(5), which provides, in its sub-paragraph (a), that the Court may ‘invite any State not party to [the] Statute to provide assistance under [Part 9 of the Statute] on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis’. Sub-paragraph (b) provides for the possibility of bringing cases of non-compliance under certain conditions before the Assembly of States Parties or the UN Security Council.

137. While the UN Security Council may obligate States not parties to the Statute to cooperate with the Court, it is of note that the Statute does not provide for a third regime of cooperation specific to UN Security Council referrals. Thus, given that the Court must exercise its jurisdiction ‘in accordance with [the] Statute’, cooperation by a State following a referral by the UN Security Council must either follow the rules provided for States Parties (articles 86 et seq. of the Statute) or the more limited regime for States not parties to the Statute (article 87(5) of the Statute). That is to say, in the absence of a comprehensive regime of cooperation spelt out in a Security Council resolution, with the clear intention of replacing the two cooperation regimes provided for in the Rome Statute, cooperation must be governed by either of the two regimes provided for under the Rome Statute. The question that then arises is under which of the two regimes cooperation by Sudan in respect of the situation in Darfur falls, given that Resolution 1593 does not provide any comprehensive regime of cooperation that would guide the Darfur referral.

138. On its face, it would appear that the answer is straight-forward: Sudan is not party to the Statute and any cooperation would therefore seem to fall under article 87(5) of the Statute. This would mean that it is open to Sudan to enter into ad hoc arrangements or agreements with the Court regarding cooperation, but that it is not required to do so, and that, in the absence of such an arrangement or agreement, there is simply no obligation for Sudan to cooperate with the Court. In the view of the Appeals Chamber, however, such an approach would be overly simplistic and disregard Sudan's legally binding obligations under Resolution 1593.

139. In this regard, it is important to stress that Resolution 1593 is a specific jurisdictional trigger contemplated by article 13(b) of the Rome Statute. As fully explained in the Joint Concurring Opinion of Judges Eboe-Osuji, Morrison, Hofmański and Bossa, article 13(b) was intended as the means through which the Court could facilitate the mandate of the UN Security Council in the maintenance of international peace and security or to contain threats in that regard, without resorting to the need to create new ad hoc international criminal tribunals, such as the ICTY and the ICTR.Footnote ³⁶⁵ As such, Resolution 1593 is a decision of the UN Security Council which has a binding force upon all UN Members States according to the applicable provisions of the UN Charter.

140. Resolution 1593 stipulates that ‘the Government of Sudan […] shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor […]’.Footnote ³⁶⁶ The formulation of the resolution suggests that the obligation imposed on Sudan is stronger than the one addressed to States not parties to the Statute, which are ‘urge[d]’ to cooperate fully. Under article 25 of the UN Charter, Sudan – a Member State of the United Nations – is obliged to accept and carry out decisions of the UN Security Council. Resolution 1593 therefore creates an obligation to ‘fully cooperate’ that is legally binding on Sudan. It is of significance for the question at hand that the language used with respect to Sudan's obligation to cooperate reflects that of article 86 of the Statute, which provides that ‘States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court’.

141. In the view of the Appeals Chamber, the fact that Sudan is obliged to fully cooperate with the Court, as per Resolution 1593, means that the cooperation regime for States Parties to the Rome Statute is applicable to Sudan's cooperation with the Court, and not article 87(5) of the Statute. This is because the latter regime is clearly inappropriate for a State that actually has a legally binding duty to cooperate with the Court. Therefore, exercise of jurisdiction by the Court ‘in accordance with [the] Statute’ means, in relation to cooperation by Sudan, cooperation on the basis of the regime established for States Parties to the Statute.

142. In this regard, the Appeals Chamber notes Jordan's argument that ‘[i]f the Statute applied in its entirety simply by virtue of a referral under article 13(b), paragraph 2 of resolution 1593 (2005) would not have been needed’.Footnote ³⁶⁷ This argument is unpersuasive. Had the UN Security Council not included an obligation on Sudan to cooperate fully with the Court, the cooperation regime under article 87(5) of the Statute would have been applicable, while the effect of paragraph 2 of Resolution 1593 is to bring Sudan into the cooperation regime applicable to States Parties. The Appeals Chamber underlines that this does not make Sudan a State Party to the Rome Statute, with all the attendant obligations and powers.Footnote ³⁶⁸ It simply means that the applicable cooperation regime is that for States Parties, as the one for States not parties to the Rome Statute is clearly inappropriate and a ‘third regime’ does not exist.

143. As noted above, the cooperation regime for States Parties – including article 98(1) of the Statute – must be understood and interpreted in light of article 27(2) of the Statute. A State Party cannot invoke Head of State immunity if another State Party proceeds to arrest and surrender the former State's Head of State on the basis of a request for cooperation by the Court. There is no reason to assume that article 27(2) would not be applicable to cooperation by Sudan. In the view of the Appeals Chamber, ‘full cooperation’ in accordance with the Statute encompasses all those obligations that States Parties owe to the Court and that are necessary for the effective exercise of jurisdiction by the Court.Footnote ³⁶⁹ Article 27(2) applies in the sense that immunities that Sudan may otherwise enjoy under international law, as a matter of its relations with another State, cannot bar the Court's exercise of jurisdiction. There would simply be no ‘full cooperation’ if Sudan could invoke immunities vis-à-vis the Court that may otherwise exist under national or international law, as a matter of its relations with another State.Footnote ³⁷⁰ If that were the case, the Court's ability to punish crimes that may have been committed in the Darfur situation would be limited from the start, and the Court's exercise of jurisdiction would not be effective.

144. Given that Sudan was therefore not in a position to rely on Head of State immunity of Mr Al-Bashir, the Appeals Chamber considers that there was no need for the Court to obtain a waiver from Sudan before it could proceed with a request to Jordan for Mr Al-Bashir's arrest and surrender, in accordance with article 98(1) of the Statute. As noted above,Footnote ³⁷¹ article 98(1) does not itself generate or preserve any immunity. As Sudan could not invoke Head of State immunity vis-à-vis a request by the Court for the arrest and surrender of Mr Al-Bashir, there was nothing that could have been waived. The legal obligation under Resolution 1593, which imposed upon Sudan the same obligation of cooperation that the Rome Statute imposes upon States Parties, including with regard to the applicability of article 27(2) of the Statute, prevailed as lex specialis over any immunity that would otherwise exist between Sudan and Jordan.

145. For that reason, there were also no ‘irreconcilable legal obligations’ that Jordan was facingFootnote ³⁷² when being asked to arrest and surrender Mr Al-Bashir to the Court. Nor was this a situation where customary or conventional international law existing in the relationship between Sudan and Jordan was modified by the Statute without Sudan becoming a party to the StatuteFootnote ³⁷³ – the modification was effected by Resolution 1593, which imposed legally binding obligations on Sudan.

146. The Appeals Chamber notes Jordan's arguments regarding the question of whether Resolution 1593 constituted an ‘implicit waiver’ of Sudan's Head of State immunity by the UN Security Council.Footnote ³⁷⁴ As noted by Jordan, this question is actually not on appeal, given the approach of the Pre-Trial Chamber.Footnote ³⁷⁵ Nevertheless, the Appeals Chamber considers it appropriate to address some of Jordan's arguments in this regard, to the extent that they are relevant to the assessment of the approach adopted by the Pre-Trial Chamber in the case at hand. At the outset, the Appeals Chamber underlines that, under the Pre-Trial Chamber's approach, the effect of Resolution 1593 is not that of an implicit waiver of Mr Al-Bashir's immunity. Rather, as explained above, the effect of paragraph 2 of Resolution 1593 is to bring Sudan under the cooperation regime applicable to States Parties to the Rome Statute, which does not recognise immunities for the reasons stated above. Since there was no ‘waiver of immunity’, the question of whether a waiver would have to be express rather than implicitFootnote ³⁷⁶ simply does not arise.

147. Jordan's argument based on case law of the European Court of Human Rights (notably, that there is a presumption that the UN Security Council does not intend to impose obligation on Member States that would breach fundamental human rights)Footnote ³⁷⁷ is equally unconvincing: this statement was made to protect fundamental human rights – in the case at hand, the situation is entirely different. If Jordan's position were to be followed, it might result in potential impunity for violations of fundamental human rights.

148. Also noteworthy in this regard is the reference in the inquiry report of the Cassese Commission to senior Government official and military commanders as those identified as possibly responsible for the mentioned violations.Footnote ³⁷⁸ Therefore, when the UN Security Council decided to refer the situation in Darfur, Sudan, to the Court, it was foreseeable that people who might be in high official positions and could enjoyed immunities could come under the jurisdiction of the Court.

149. In sum, Resolution 1593 gives the Court power to exercise its jurisdiction over the situation in Darfur, Sudan, which it must exercise ‘in accordance with [the] Statute’. This includes article 27(2), which provides that immunities are not a bar to the exercise of jurisdiction. As Sudan is obliged to ‘cooperate fully’ with the Court, the effect of article 27(2) arises also in the horizontal relationship – Sudan cannot invoke Head of State immunity if a State Party is requested to arrest and surrender Mr Al-Bashir. Therefore, there was no Head of State immunity that Sudan could invoke in relation to Jordan, had the latter arrested Mr Al-Bashir on the basis of an arrest warrant issued by the Court. Accordingly, there was also no immunity that Jordan would have been required to ‘disregard’ by executing the Court's arrest warrant. And there was no need for a waiver by Sudan of Head of State immunity. The Appeals Chamber therefore concludes that the Pre-Trial Chamber did not err when it found that, as a result of Resolution 1593, Sudan could not invoke Head of State immunity.

(d) Jordan's obligation to arrest and surrender

150. Jordan raises several arguments that concern its obligation to execute the warrant for the arrest and surrender of Mr Al-Bashir. Some of these arguments are based on Jordan's interpretation of the relevant law, notably that, before Mr Al- Bashir could be arrested, a waiver from Sudan would have been required. In preceding sections, these arguments were rejected. Some remaining arguments, however, cover aspects that have not been addressed yet; they will be addressed in turn.

151. The Pre-Trial Chamber found that article 98(1) of the Statute did not provide Jordan with the right not to comply with the Court's requests, but is addressed to the Court itself.Footnote ³⁷⁹ Jordan argues that this amounted to an error of law because cooperation has to be provided in accordance with the Statute – if the cooperation sought is inconsistent with the Statute, there is no obligation of States Parties to cooperate.Footnote ³⁸⁰

152. The Appeals Chamber finds that Jordan's argument is unpersuasive. Article 98(1) is indeed directed at the Court itself – it prescribes that the Court may not proceed with requests for cooperation under certain circumstances. However, this does not mean that the requested State may unilaterally decide not to execute a request for arrest and surrender, if it considers that the Court erroneously asked for cooperation, contrary to article 98(1). In such a situation, the requested State has to seek consultations with the Court pursuant to article 97 of the Statute. Whether Jordan appropriately sought such consultations in the case at hand will be discussed under the third ground of appeal.

153. For the same reasons, Jordan's argument that the Pre-Trial Chamber erred because it purportedly asserted that ‘Jordan has a duty to cooperate with the Court no matter what legal obligations Jordan may have vis-à-vis other States’Footnote ³⁸¹ is unpersuasive. It disregards that the Statute provides for a consultation procedure in case a requested State Party identifies problems with a request for cooperation. This means that the requested State cannot unilaterally decide not to comply with a request for cooperation – as correctly found by the Pre-Trial Chamber.Footnote ³⁸² Rather, the requested State must engage in consultations.

154. Jordan argues further that the Pre-Trial Chamber erred when it found that article 98(2) of the Statute did not apply to the 1953 Convention because it did not refer to ‘sending states’ and because it ‘does not establish or refer to a procedure for seeking and providing consent to surrender’.Footnote ³⁸³ Jordan argues that the Pre-Trial Chamber's understanding of article 98(2) was too restrictive and disregarded that article 11 of the 1953 Convention ‘squarely addresses the situation of the representatives of a Member State “journeying” to and from conferences convened by the Arab League, and their immunity from person arrest or detention in “the place of the meeting”’.Footnote ³⁸⁴ Jordan also notes that article 14 of the 1953 Convention ‘expressly addresses the circumstances under which the Member State might consent to the arrest or surrender of its representative’.Footnote ³⁸⁵ For the reasons that follow, the Appeals Chamber is unpersuaded by these arguments.

155. Article 98(2) of the Statute provides as follows:

156. Article 11 of the 1953 Convention provides:

157. Article 14 of the 1953 Convention provides:

158. The Appeals Chamber notes that articles 11 and 14 of the 1953 Convention address the question of immunities that members of delegations to meetings of the Arab League are entitled to and under which circumstances such immunities should be waived. As such, these provisions are relevant to article 98(1) of the Statute – though the effect of Sudan's duty under Resolution 1593 to cooperate fully with the Court is that Sudan cannot invoke such immunities if the Court seeks the arrest of a person otherwise entitled to such immunity.Footnote ³⁸⁶

159. In contrast, article 98(2) of the Statute does not concern immunities – be they customary or conventional in nature – but agreements according to which a receiving State undertakes not to surrender a person of the sending State to the Court without prior consent.Footnote ³⁸⁷ Typical examples of such agreements are so-called status of forces agreements, which regulate the status of armed forces of a sending State on the territory of a receiving State.Footnote ³⁸⁸ Indeed, depending on the particular circumstances of a given situation – such as in this case where either the Rome Statute or a UN Security Council referral resolution creates cooperation obligations for a State or the States concerned – article 98(2) may not afford an escape route from the duty to cooperate with the ICC. Thus, the Appeals Chamber finds that the Pre-Trial Chamber did not err when it found that article 98(2) of the Statute did not apply to the 1953 Convention.

160. In any event, the Appeals Chamber notes that the Pre-Trial Chamber found that it could not consider whether Mr Al-Bashir benefitted from immunity under the 1953 Convention because of doubts as to whether Sudan was party to that Convention.Footnote ³⁸⁹ The Pre-Trial Chamber clarified this matter in its decision granting leave to appeal by stating that, based on the corrected translation submitted by the Registry, Sudan is a party to the Convention since 30 October 1977 but found that this aspect was not dispositive nor had any impact on the Pre-Trial Chamber's determination of the main issue before it.Footnote ³⁹⁰ In these circumstances, the Pre-Trial Chamber made statements about the applicability of article 98(2) only ‘in any event’. Jordan on appeal specifically states that whether Mr Al-Bashir enjoys immunity under this instrument is not on appeal because the Pre-Trial Chamber did not reach a conclusion on that matter.Footnote ³⁹¹

161. Finally, the Appeals Chamber notes that both Jordan and Sudan are parties to the Convention against Genocide.Footnote ³⁹² Article I of the Convention against Genocide provides that the contracting parties ‘undertake to prevent and punish’ the crime of genocide. The Appeals Chamber notes that Mr Al-Bashir is alleged to be responsible for the crime of genocide. Thus, Jordan was under an obligation to cooperate in the arrest and surrender of Mr Al-Bashir at the request of the Court not only as a State Party to the Rome Statute, but also by virtue of its being party to the Convention against Genocide.

(e) Overall conclusion on first and second grounds

162. In sum, the Appeals Chamber is unpersuaded by Jordan's arguments that the Pre-Trial Chamber erred when it found that there was no Head of State immunity that would have prevented Jordan from executing the warrant for the arrest and surrender of Mr Al-Bashir issued by the Court or that Jordan was otherwise not obliged to execute the Court's request for arrest and surrender. The first and second grounds of appeal are therefore rejected.

(a) Jordan

166. Jordan submits that the Pre-Trial Chamber erred as a matter of fact in concluding: (i) that Jordan had taken a very clear legal position regarding its ability to arrest and surrender Mr Al-Bashir and did not expect anything further from the Court;Footnote ⁴⁰⁰ and (ii) that at the time of Mr Al-Bashir's visit to Jordan the Pre-Trial Chamber had already expressed in unequivocal terms that South Africa had the obligation to arrest Mr Al-Bashir.Footnote ⁴⁰¹ Jordan argues that the Pre-Trial Chamber had directly communicated its legal views to South Africa on 12 and 13 June 2015 prior to Mr Al-Bashir's visit to that country, whereas these legal views were not ‘expressed directly to Jordan’.Footnote ⁴⁰² Jordan avers that the Pre-Trial Chamber only established South Africa's obligation to arrest and surrender Mr Al-Bashir in July 2017.Footnote ⁴⁰³ In Jordan's view, it was unreasonable to maintain that it was on notice of its obligations under the Statute given the divergent jurisprudence of the pre-trial chambers on the issue of arrest and surrender of Mr Al-Bashir on States Parties’ territories.Footnote ⁴⁰⁴ Jordan adds that the Pre-Trial Chamber failed to discuss these ‘multiple legal interpretations’ and ‘whether that should be a factor to take into account’ regarding Jordan's referral.Footnote ⁴⁰⁵

167. Jordan alleges further that the Pre-Trial Chamber's decision to refer it to the Assembly of States Parties and the UN Security Council ‘constituted an abuse of discretion’ given (i) the alleged Pre-Trial Chamber's differential treatment between South Africa and Jordan in similar circumstances;Footnote ⁴⁰⁶ and (ii) the Pre-Trial Chamber's failure to give weight to relevant considerations in reaching its decision on referral.Footnote ⁴⁰⁷ In that regard, Jordan submits that while the Pre-Trial Chamber considered favourably South Africa's consultations with the Court as it was the first State Party to do so, it failed to consider Jordan's good faith and to discuss Jordan's efforts at consultations prior to Mr Al-Bashir's visit.Footnote ⁴⁰⁸

168. Moreover, Jordan submits that the failure to comply is not a sufficient basis for referral and in the present case this amounted to an automatic referral.Footnote ⁴⁰⁹ Jordan maintains that the Pre-Trial Chamber failed to discuss what would be ‘the concrete circumstances’ in the present case that would require a referral in order to foster cooperation from Jordan.Footnote ⁴¹⁰

(b) The Prosecutor

169. The Prosecutor submits that the Pre-Trial Chamber reasonably found that Jordan's ‘clear position and choice not to execute the Court's request was a factor supporting referral’.Footnote ⁴¹¹ The Prosecutor asserts that the Pre-Trial Chamber's decision to refer Jordan to the Assembly of States Parties and the UN Security Council was not punitive and was the ‘most effective’ way to obtain Jordan's cooperation and ‘preserve the object and purpose of article 87(7)’ of the Statute.Footnote ⁴¹² The Prosecutor maintains that the Pre-Trial Chamber correctly expressed in unequivocal terms its position that South Africa had an obligation to arrest and surrender Mr Al-Bashir and Jordan knew that it was obliged to arrest him and that engaging in consultations with the Court did not suspend its obligations when it decided unilaterally not to comply with these obligations.Footnote ⁴¹³ The Prosecutor argues that Jordan's argument as to the inconsistency of the jurisprudence of the Court on immunities is inaccurate because while the legal reasoning may have varied across the Court's decisions, they ‘unanimously’ concluded that Mr Al-Bashir does not benefit from any immunity before this Court and States Parties are obliged to arrest and surrender him.Footnote ⁴¹⁴

170. The Prosecutor submits further that, contrary to Jordan's submissions regarding the Pre-Trial Chamber's alleged indiscriminate comparison between Jordan and South Africa, the Pre-Trial Chamber's analysis appropriately focused on Jordan's failure to consult and only referred to the proceedings with respect to South Africa in order to distinguish its findings on referral in that case.Footnote ⁴¹⁵ The Prosecutor asserts that the Pre-Trial Chamber ‘was justified in arriving at different conclusions in the two cases’ on the issue of referral, as ‘Jordan has not accepted its obligation to cooperate with the Court’ and, unlike South Africa, Mr Al-Bashir's visit did not trigger ‘any effort domestically to resolve perceived inconsistencies with Jordan's statutory obligations’.Footnote ⁴¹⁶

171. Furthermore, the Prosecutor avers that Jordan's contention that it made good-faith efforts to consult with the Court is unsupported.Footnote ⁴¹⁷ The Prosecutor asserts that Jordan only approached the Court after it was asked about Mr Al-Bashir's visit by the Registry on 24 March 2017, five days before Mr Al-Bashir's visit to Jordan.Footnote ⁴¹⁸ The Prosecutor argues that, in the Note Verbale of 28 March 2017, apart from referring to article 97 of the Statute, Jordan ‘did not seek anything further from the Court, or even express an interest in meeting with Court officials’ and ‘identified no difficulty, no impediment to executing the request’; instead, ‘Jordan only expressed a principled position not to arrest Omar Al-Bashir.’Footnote ⁴¹⁹ The Prosecutor argues that ‘Jordan had many opportunities to communicate with the Court about the arrest warrant’; it could have done so in 2009 when notified of the first arrest warrant or in 2010 when notified of the second arrest warrant and Jordan could have communicated at any time in the intervening eight years but did not do so.Footnote ⁴²⁰

172. Finally, with respect to the Presiding Judge's question about trial in absentia asked during the oral hearings, the Prosecutor submits that there is no trial in absentia at the Court as there was no agreement to include such possibility in the Statute, and that at the end, article 61 was included to allow an in absentia proceeding regarding confirmation of charges.Footnote ⁴²¹ That is why, the Prosecutor argues, a State Party that fails to cooperate must be referred because the Court cannot exercise its jurisdiction.Footnote ⁴²² The Prosecutor asserts that because the proceedings could not progress beyond the confirmation process, an arrest and surrender is essential for allowing the proceedings to advance, and in the absence of such arrest, the Court's functions and powers are frustrated.Footnote ⁴²³

(c) The amici curiae

173. On the matter of potential improvements to the consultation process envisioned under article 97 of the Statute, the African Union asserts that articles 97 and 98 are ‘essentially twin provisions […] in the sense that 97 places a burden on the State and 98 places a burden on the Court.’Footnote ⁴²⁴ The African Union further argues that article 97 provides that it is the State's obligation to identify the problems and to communicate them to the Court.Footnote ⁴²⁵ According to the African Union, this process assumes the good faith on the part of the State raising the problems.Footnote ⁴²⁶ This, in the African Union's opinion, could leave the State with the problem of lack of resources to even respond to the Court's request, and it suggests that perhaps this could be addressed in the rules of procedure or at a policy level by the Assembly of States Parties.Footnote ⁴²⁷

174. The League of Arab States submits that the Pre-Trial Chamber erred in law by relying on its unequivocal expression of its position to a different State Party.Footnote ⁴²⁸ It argues that the Pre-Trial Chamber failed to decide the referral of Jordan in reference to its own facts rather than to the situation of a different State Party.Footnote ⁴²⁹ Furthermore, the League of Arab States argues that the Pre-Trial Chamber's decision ‘constituted an abuse of discretion’.Footnote ⁴³⁰

175. Ms Ciampi submits that a finding of non-compliance and a referral by the Court may have an important ‘blaming and shaming effect’ which could result in a general deterrent effect.Footnote ⁴³¹

176. Whilst Jordan deserves credit for its cooperation with the Appeals Chamber in the present proceedings, Mr Kreß argues that the Court is entitled to expect Jordan's further cooperation ‘unreservedly’ in accordance with its authoritative clarification of the law in due course.Footnote ⁴³² Without such ‘basic loyalty’ of States Parties, Mr Kreß argues, the enforcement of the ius puniendi by a permanent international court could not succeed.Footnote ⁴³³

177. Ms Lattanzi submits that she is amending her previous position on the issue of Jordan's referralFootnote ⁴³⁴ and argues now that Jordan should not be referred to the Assembly of States Parties and the UN Security Council.Footnote ⁴³⁵ She ‘aknowledge[s] that Jordan might have felt the need to consult with the Court with the aim to clarify the arguments upon which the request to arrest and surrender President Al-Bashir were founded, notwithstanding his alleged immunity under the international law applicable by foreign domestic jurisdiction’.Footnote ⁴³⁶ Ms Lattanzi argues that the Pre-Trial Chamber could have followed-up on the Note Verbale of 28 March 2017 ‘by inviting Jordan to consultations, in particular on the controversial issue of the applicability of the immunities in the enforcement process of arrest and surrender’.Footnote ⁴³⁷ Ms Lattanzi therefore accepts that the Pre-Trial Chamber's factual finding on the lack of consultations was not entirely correct as it ‘did not fully reflect Jordan's reference […] to consultations’.Footnote ⁴³⁸

178. Mr Magliveras argues that the Pre-Trial Chamber was ‘neither unfair nor unreasonable’ and Jordan should not fear such referral as it does not affect its sovereign rights; rather this referral should be viewed as an opportunity for Jordan to present its arguments to the Assembly of States Parties and to the UN Security Council.Footnote ⁴³⁹ Mr Magliveras avers further that article 87(7) should not be interpreted as a punitive measure, or sanction, but as a means to officially inform the ‘[Assembly of States Parties] and/or [UN Security Council] of a specific State Party's problematic behaviour’.Footnote ⁴⁴⁰

179. Mr Newton submits that the Mapping Bashir Research Project shows that the Court's referrals to the Assembly of States Parties and the UN Security Council ‘have made no appreciable difference’ and therefore did not ‘substantially affect’ Mr Al-Bashir's subsequent travels to States Parties territories.Footnote ⁴⁴¹ Nonetheless, Mr Newton submits that the patterns of travel show that referral, of itself, can have some political impact, albeit that the precise impact may be unpredictable.Footnote ⁴⁴²

180. Mr Robinson et al. submit that even in the event of the Appeals Chamber confirming the Pre-Trial Chamber's approach, Jordan need not be referred to the Assembly of States Parties or the UN Security Council.Footnote ⁴⁴³ They argue that ‘[t]here is no benefit’ for such referral as Jordan does not ‘withhol[d] any assistance’Footnote ⁴⁴⁴ and that the Pre-Trial Chamber erred in law and fact on the main reasons for referring Jordan and that ‘Jordan was not defiant […but] was just stating what it perceived as obstacles’.Footnote ⁴⁴⁵ Mr Robinson et al. aver that the Pre-Trial Chamber erred in fact when it held that the law had been settled unequivocally whereas the South Africa Decision had not yet been available in March 2017 and the ‘theory that Jordan objected to has been significantly refined’.Footnote ⁴⁴⁶ They maintain that the ‘Court should show some understanding of the legal stakes for states parties […], the widespread uncertainty and well-argued controversy’ that the issue of the arrest of a Head of State has generated so far.Footnote ⁴⁴⁷ In their view, it was correct for the Pre-Trial Chamber not to refer South Africa and argue that the Appeals Chamber should ‘consider the grounds on which South Africa's situation was distinguished from Jordan's’.Footnote ⁴⁴⁸ Furthermore, they argue that the remedy ‘might just be to clarify the law for States Parties for the future’.Footnote ⁴⁴⁹

181. Furthermore, Mr Robinson et al. submit that there are legal avenues to respect competing legitimate concerns of states regarding Head of State immunities and the difficulties to arrest such an official.Footnote ⁴⁵⁰ First, they argue that the Court can issue warrants of arrest against Head of State but could allow an exception for Heads of States participating in a conference of an intergovernmental organization.Footnote ⁴⁵¹ Alternatively, they aver, a chamber could ‘consider creating a space for a legislative-judicial “dialogue” to allow some shared responsibilities’.Footnote ⁴⁵² In that sense, they argue, the Appeals Chamber could confirm the approach adopted by the Pre-Trial Chamber but could find that the ‘Statute framework leaves space for the [Assembly of States Parties] to adopt a rule of procedure specifying appropriate exceptions as a matter of legislative policy’.Footnote ⁴⁵³ Regarding improvements on the consultation process, Mr Robinson et al. assert that the Appeals Chamber could declare that States could consult the Court if they do so ‘in a timely manner’ about what they see as an ‘essential contact’ and that such contact - in ‘exceptional circumstances’ - ‘could allow the Court to recognize other important shared values’.Footnote ⁴⁵⁴

(i) Whether the factual prerequisite under article 87(7) of the Statute was established

185. The Appeals Chamber notes that, in the case at hand, neither of the parties has raised on appeal the issue of whether the Pre-Trial Chamber correctly established the factual prerequisite for referral under article 87(7) of the Statute. That prerequisite is stated in terms which require, as a condition for a referral, a failure to comply with a request to cooperate, thereby ‘preventing the Court from exercising its functions and powers under this Statute’. The Appeals Chamber will address this issue on its own motion, because unless the Pre-Trial Chamber has established the factual prerequisite of article 87(7) of the Statute, it cannot exercise its discretion to refer a State to the Assembly of States Parties or the UN Security Council, following a finding of non-compliance.

186. As determined under the previous grounds of appeal, the Pre-Trial Chamber correctly found that Jordan had failed to comply with a request to cooperate. Thus, the first condition relating to the factual prerequisite was established.

187. With respect to the second condition, namely, whether Jordan's non-compliance prevented the Court from exercising its functions and powers under the Statute, the Appeals Chamber observes that, at paragraph 50 of the Impugned Decision, the Pre-Trial Chamber stated that:

188. The Pre-Trial Chamber did not further explain how it understood the terms of article 87(7) of the Statute or why it considered that the Court, in the case at hand, was prevented from exercising its functions and powers as a result of Jordan's failure to cooperate. It is important to do so. Nevertheless, for the reasons that follow, the Appeals Chamber considers that the Pre-Trial Chamber's conclusion was correct.

189. The Appeals Chamber recalls, first, the wording of article 87(7) of the Statute, which requires, as a condition for a referral, a failure to cooperate with a request to that effect, thereby ‘preventing the Court from exercising its functions and powers under this Statute’. How then was the Court prevented from exercising its functions and powers in this case?

190. Article 58(1) of the Statute empowers the pre-trial chambers to issue a warrant of arrest where there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court and the arrest of the person ‘appears necessary’ for the reasons listed therein. A warrant of arrest, alongside its alternative of summons to appear, serves the function of securing the presence of the suspect before the Court. It thus engages an important power that serves a fundamental function of the Court. This is particularly so when the Pre-Trial Chamber has decided that an arrest warrant is the more appropriate means of securing presence before the Court. Those who bear the obligation to execute an arrest warrant are not then free to render it nugatory merely by refusing to execute it.

191. The warrants of arrest of 4 March 2009 and 12 July 2010 respectively were issued by the Pre-Trial Chamber on the basis of this power, and, by failing to arrest and surrender Mr Al-Bashir, Jordan indeed prevented the Court from exercising this power. It is the finding of the Appeals Chamber that by failing to arrest and surrender Mr Al-Bashir, in circumstances in which Mr Al-Bashir was entitled to no immunity, Jordan prevented the Court from exercising an important power and a fundamental function. As a result, the Pre-Trial Chamber was correct in concluding that Jordan's non-compliance prevented the Court from exercising its functions and powers under the Statute.

(ii) Whether the referral of Jordan to the Assembly of States Parties and the UN Security Council was an abuse of discretion

192. As noted above, the decision to refer a State Party to the Assembly of States Parties and or the UN Security Council following a finding of non-compliance is discretionary in nature.Footnote ⁴⁶⁰ Jordan challenges the Pre-Trial Chamber's exercise of discretion to refer Jordan to the Assembly of States Parties and the UN Security Council, submitting that it is tainted by errors of fact and law and arguing that a referral in the circumstances of this case constituted an abuse of discretion.Footnote ⁴⁶¹ Regardless of Jordan's characterisation of the alleged errors, the Appeals Chamber will assess whether the Pre-Trial Chamber's decision amounted to an abuse of its discretion.

193. The Appeals Chamber observes that Jordan's main contention revolves around the Pre-Trial Chamber's finding that ‘consultations – i.e. exchanges between Jordan and the Court with a view to removing the obstacle to Jordan's cooperation – did not take place’Footnote ⁴⁶² and that the Pre-Trial Chamber treated South Africa and Jordan differently, even though the two States had found themselves in a similar situation,Footnote ⁴⁶³ in particular as regards their attempts to consult with the Court.

194. On the matter of whether Jordan actually sought to consult with the Court, the Pre-Trial Chamber found, inter alia, that ‘Jordan took a very clear position, chose not to execute the Court's request for arrest and surrender of Omar Al-Bashir and did not require or expect from the Court anything further that could assist it in ensuring the proper exercise of its duty to cooperate’.Footnote ⁴⁶⁴ Jordan disputes these findings and asserts that consultations with the Court were in fact sought, in good faith, as evidenced by its Note Verbale of 28 March 2017.Footnote ⁴⁶⁵

195. The Appeals Chamber recalls that, on 24 March 2017, following receipt of a report from the Registry on information received regarding Mr Al-Bashir's potential visit to Jordan's territory,Footnote ⁴⁶⁶ Jordan addressed a note verbale to the Registry in which it indicated, inter alia, that an invitation had been sent to Heads of State of the members of the Arab League, including Sudan, for the upcoming Arab League summit, to be held on 29 March 2017, but that at that time there was no official confirmation concerning the attendance of Mr Al-Bashir.Footnote ⁴⁶⁷ Jordan added that it ‘adhere[d] to its international obligations, including the applicable rules of customary international law, while taking into account all its rights thereunder’.Footnote ⁴⁶⁸

196. On 24 March 2017, the Prosecutor responded, requesting that the Pre-Trial Chamber ‘order the Registrar to seek immediate clarification from Jordan regarding whether it has identified a problem that would impede or prevent the execution of the Court's requests for arrest and surrender, and if so, to remind Jordan of its obligation under article 97 to consult with the Court without delay in order to resolve the matter’.Footnote ⁴⁶⁹

197. On 28 March 2017, Jordan filed the Note Verbale of 28 March 2017, in which it confirmed that Mr Al-Bashir would attend the summit and stipulated that Jordan was ‘hereby consulting with the ICC under Article 97 of the Rome Statute’.Footnote ⁴⁷⁰ Jordan indicated that it considered that Mr Al-Bashir enjoyed ‘sovereign immunity as a sitting Head of State’, that this immunity has not been waived by Sudan and that Resolution 1593 could not be interpreted as containing a waiver of immunity or mandating States to ‘bypass’ such immunity.Footnote ⁴⁷¹ Jordan stated that executing the Court's request for surrender and arrest would be ‘inconsistent with its obligations under the rules of customary international law’ regarding Head of State immunity and that nothing in the relevant provisions of the Statute ‘mandates a State Party to waive the immunity of a third State and act inconsistently with its obligations under the rules of general international law on the immunity of a third State’.Footnote ⁴⁷²

198. On 29 March 2017 the Prosecutor filed her observations, withdrawing her previous request of 24 March 2017 and urging the Pre-Trial Chamber ‘to proceed to urgently resolve any misunderstanding that Jordan may perceive with respect to its obligations under the Statute’.Footnote ⁴⁷³ The Prosecutor noted further that Jordan, in the Note Verbale of 28 March 2017, ‘formally identifies an alleged legal problem, which it communicate[d] to the Court by way of article 97 consultations’ and that ‘the triggering of consultations has no suspensive effect on Jordan's obligation as a State Party to arrest and surrender Mr Al-Bashir’.Footnote ⁴⁷⁴

199. The Pre-Trial Chamber did not respond to Jordan's Note Verbale of 28 March 2017, nor did it react to the Prosecutor's abovementioned requests. Rather, in the Impugned Decision, the Pre-Trial Chamber stated that it:

200. The Appeals Chamber recalls that the issue of consultations is addressed in article 97 of the Statute, which provides, in relevant part, as follows:

201. The Appeals Chamber notes that article 97 of the Statute does not provide for a specific procedure regarding consultations that States have to follow, nor does it set out the manner in which consultations should be carried out. The drafting history of this provision reveals that the provision was deliberately designed to allow States flexibility in this regard, in order to address problems with execution of requests and to provide a general mechanism which could deal with the full range of scenarios that might arise.Footnote ⁴⁷⁶ For the same reason, no provision with regard to article 97 was included in the Rules,Footnote ⁴⁷⁷ as ‘there was consensus that it should be left unconstrained to make it as effective as possible in resolving issues’.Footnote ⁴⁷⁸

202. The Appeals Chamber considers that, in the absence of a prescribed procedure, the manner in which a State may indicate its intention to seek consultations may vary. And some approaches may be more awkward than others. What is essential, however, is that the intention to consult is discernible in the circumstances. In addition, the phrase ‘without delay’ in article 97 signifies that the intention to consult must be communicated to the Court timeously, so as not to frustrate the object of the request for cooperation or defeat the purpose of the consultation process. Indeed, it is in the interest of the requested State to engage in consultations as soon as possible, to ensure that any potential obstacles to cooperation can be resolved. Furthermore, the Appeals Chamber emphasises that States are required to conduct consultations in good faith.

203. Turning to the case at hand, the majority of the Appeals Chamber (Judge Ibáñez and Judge Bossa dissenting) is persuaded by Jordan's argument that the Note Verbale of 28 March 2017 constituted a request for consultations with the Court in terms of article 97 of the Statute. The phrase ‘Jordan is hereby consulting with the ICC’ is, in the Appeals Chamber's view, a discernible indication of Jordan's intent to engage with the Court in relation to the requested cooperation. Contrary to the Pre-Trial Chamber's finding,Footnote ⁴⁷⁹ the Appeals Chamber considers that a State Party's discernible indication of intent to consult is, in itself, a spur to the Court to engage, which should not be ignored. Consequently, the Appeals Chamber considers that the Pre-Trial Chamber should have reacted to Jordan's request to consult, by giving the necessary direction to that effect.

204. In addition, the Appeals Chamber finds (Judge Ibáñez and Judge Bossa dissenting) that Jordan's Note Verbale of 28 March 2017 need not be seen as an ‘advance notification of non-compliance’. It is enough to see it as Jordan's way of identifying Head of State immunity and the lack of its waiver by Sudan as perceived impediments to the request for Mr Al-Bashir's arrest and surrender, in relation to which consultations should take place.Footnote ⁴⁸⁰ While it would be better for a State to approach the consultation process in an unequivocal manner of asking questions in need of resolution, the failure to follow that approach is not necessarily inconsistent with an intention to engage in consultation. A State may indeed approach the consultation process in the manner of stating preliminary position that it sees as posing an obstacle to cooperation, thus engaging the question to be resolved. The Appeals Chamber therefore finds that Jordan's failure to put questions to the Pre-Trial Chamber, choosing rather to set out its own legal position for the Note Verbale of 28 March 2017 was not inconsistent with an attempt to engage in consultations.Footnote ⁴⁸¹ As noted above, article 97 of the Statute does not prescribe the manner in which a request for consultations is made and, as long as it is clear that a State wishes to engage in consultations, it may do so by putting forward its own position.

205. With respect to the Pre-Trial Chamber's consideration that the timing of the Note Verbale of 28 March 2017 (one day before Mr Al-Bashir's scheduled arrival in Jordan) was another indication that Jordan had not actually requested consultations, the Appeals Chamber considers that, while Jordan was required to seek consultation without delay,Footnote ⁴⁸² tardiness in that regard need not result in a presumption of bad faith. There may well be other reasons peculiar to the circumstances of a particular State that may explain the tardiness besides bad faith. The Appeals Chamber notes that Jordan could indeed have sought consultations as soon as the invitations for the Arab League Summit had been sent out and Mr Al-Bashir's presence on Jordan's territory in the near future therefore had become a real possibility,Footnote ⁴⁸³ in particular given Jordan's position that it could not arrest Mr Al-Bashir during the summit because of his purported Head of State immunity and its awareness of the ongoing proceedings against South Africa at the time.Footnote ⁴⁸⁴ Engaging in consultations earlier would have made it possible for these questions to be clarified in advance of Mr Al-Bashir's arrival in Jordan, which, in turn, could have avoided Jordan's non-compliance with its obligations under the Statute – either by rescinding Mr Al-Bashir's invitation or by arresting him upon his arrival in Jordan. In any event, the Appeals Chamber notes that Jordan made a request to consult before Mr Al-Bashir was on Jordan's territory.

206. In light of the above, the Appeals Chamber finds (Judge Ibáñez and Judge Bossa dissenting) that the Pre-Trial Chamber erred in concluding that Jordan's Note Verbale of 28 March 2017 did not constitute a request for consultations.

207. In the same vein, the Appeals Chamber considers that, since the Note Verbale of 28 March 2017 was in fact an indication of Jordan's intention to consult with the Court and identified what it perceived to be problems with the execution of the request to arrest and surrender Mr Al-Bashir,Footnote ⁴⁸⁵ the Pre-Trial Chamber erred in finding that Jordan's referral to the Assembly of States Parties and the UN Security Council, was justified, inter alia, because Jordan took ‘a very clear position, chose not to execute the Court's request and did not require or expect anything further that could assist it in ensuring the proper exercise of its duty to cooperate’. In the Appeals Chamber's view (Judge Ibáñez and Judge Bossa dissenting) the Pre-Trial Chamber misconstrued Jordan's attempt to engage in consultations as a refusal to comply with the Court's request, even though it was a request to consult, with which the Pre-Trial Chamber should have engaged. It follows that the Pre-Trial Chamber's error impacted on the reasons it gave for referring Jordan to the Assembly of States Parties and UN Security Council.

208. Turning more fully to the differential treatment, it is noteworthy that in an attempt to distinguish South Africa's consultation efforts from those of Jordan, the Pre-Trial Chamber found that ‘the fact that South Africa was the first State Party to approach the Court with a request for consultations militated against a referral of non-compliance’.Footnote ⁴⁸⁶ Jordan recalls that the Pre-Trial Chamber in the South Africa Decision noted South Africa's request to consult with the Court and found that this ‘distinguishe[d] the conduct of South Africa from that of other States that, in the past have been involved in proceedings under article 87(7) of the Statute’.Footnote ⁴⁸⁷ Indeed, on 11 June 2015 South Africa had engaged in a consultation process by requesting two days before Mr Al-Bashir's visit to its territory on 13 June 2015 an urgent meeting between the Registrar and the Chief State Law advisor which took place the next day with the Presiding Judge and representatives of South Africa.Footnote ⁴⁸⁸ Thus, the fact that South Africa consulted with the Court was a significant factor for the Pre-Trial Chamber's decision not to refer South Africa to the Assembly of States Parties and/or the UN Security Council. In contrast, in the case at hand, as set out above, the Pre-Trial Chamber erroneously found that Jordan had not consulted the Court, and therefore failed to take into account an important factor arguing against Jordan's referral. This resulted in unequal treatment of South Africa and Jordan.

209. For the reasons explained earlier, the Appeals Chamber does not accept (Judge Ibáñez and Judge Bossa dissenting) that Jordan did not seek to engage in consultations. The details of the circumstances of South Africa's consultations did not justify the finding that South Africa engaged in consultations and Jordan did not. Both had engaged in consultations. Therefore the difference in treatment accorded to Jordan was an error.

210. But there is more that compounds the error of the differential treatment accorded to Jordan as compared to that accorded to South Africa. This is especially so given that ‘South Africa's domestic courts have found that the Government of South Africa acted in breach of its obligations under its domestic legal framework by not arresting Omar A-Bashir and surrendering him to the Court’.Footnote ⁴⁸⁹ The Supreme Court of Appeal of South Africa concluded that South Africa had acted inconsistently with its obligations under the Statute and its legislation implementing the Statute.Footnote ⁴⁹⁰ In addition, the Appeals Chamber notes that counsel for the African Union, who also appeared as Counsel for South Africa during the proceedings before this Court, submitted as follows before the Appeals Chamber:

211. In that sense, Jordan's behaviour diverged from that displayed by South Africa in its endeavour to engage with the Court. It even reaffirmed its commitment to cooperate with the Court and its continuing support to the Court since its inception.Footnote ⁴⁹² In these circumstances, the Appeals Chamber (Judge Ibáñez and Judge Bossa dissenting) finds merit in Jordan's arguments and considers that the Pre-Trial Chamber abused its discretion by treating Jordan differently from South Africa in similar circumstances and by referring Jordan to the Assembly of States Parties and the UN Security Council, whereas South Africa was not referred.