The panel found Jordan should have arrested al-Bashir in 2017, but its failure to do so was not grounds for referral.

Jordan will not be referred to the United Nations Security Council (UNSC) for its failure to arrest Sudanese war crimes suspect Omar al-Bashir when he visited Amman in 2017, the International Criminal Court (ICC) has said, reversing an earlier decision.

In a split ruling on Monday, the five-judge panel confirmed that Jordan should have arrested al-Bashir, but said its failure to do so was not grounds for referral because Jordan had tried to consult the court about the matter ahead of time.

“The appeals chamber confirms … Jordan had failed to comply with its obligations under the statute by failing to execute the court’s request for the arrest of Mr al-Bashir and his surrender to the court, while he was in Amman on 29 March 2017,” presiding judge Chile Eboe-Osuji said.

But Eboe-Osuji said that referring Jordan to the UN for possible sanction went too far.

Under court rules, judges can use their discretion on whether a violation is serious enough to prompt a referral.

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“The Appeals Chamber … finds merit in Jordan’s arguments and considers that the Pre-Trial Chamber abused its discretion,” the judge said.

#AlBashir case #ICC: Appeals Chamber confirms Jordan’s non-cooperation but reverses the decision referring it to the Assembly of States Parties and UN Security Council. More information ➡ https://t.co/cNel8YXxZU — Int'l Criminal Court (@IntlCrimCourt) May 6, 2019

Easing the verdict

Jordan is a member of the Rome Statute, which underpins the tribunal – established in 2002 to try the world’s worst atrocities – and as such has agreed to comply with the court’s orders.

In a first for the court, Amman last year appealed the ICC’s findings that it failed to fulfil its legal obligations in seizing al-Bashir, saying it was not obliged to do so.

Jordan’s lawyers argued that al-Bashir at the time of his visit was a sitting head of state “and therefore immune to arrest”, based on the international legal principle of comity between states.

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But the court on Monday “concluded that there is no Head of State immunity under customary international law vis-a-vis an international court,” it said in a statement.

Easing the verdict on Jordan however, Eboe-Osuji said that the court’s pre-trial judges should not have referred the matter to the Security Council and the court’s Assembly of States Parties (ASP).

Al-Bashir is the first sitting head of state ever indicted by the ICC, with two warrants issued in 2009 and 2010 for five counts of crimes against humanity, two counts of war crimes, and three counts of genocide during hostilities in Darfur between 2003-2008.

Over the last decade, al-Bashir has travelled to a number of countries who did not arrest him, including ICC member states like South Africa and Kenya.

Sudan’s deadly conflict broke out in 2003 when ethnic minority groups took up arms against al-Bashir’s Arab-dominated government, which launched a brutal counterinsurgency.

At least 300,000 people have been killed and 2.5 million others displaced in the conflict, according to the UN.