Jordan’s failure to arrest Bashir will not go to the UN

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The International Criminal Court (ICC) will not refer Jordan to the UN Security Council for failure to arrest Sudanese war crimes suspect Omar al-Bashir when he visited Amman in 2017, judges said, reversing an earlier decision.

Bashir, ousted in April after 30 years in power, is the subject of two ICC arrest warrants over his alleged role in war crimes including genocide in Sudan’s Darfur province.

Jordan cited head of state immunity – customary under international law – as the reason for not arresting Bashir in 2017, but the ICC said immunity did not apply to Bashir due to alleged war crimes.

In a split ruling, a five-judge panel said Jordan should have arrested Bashir, its failure was not grounds for referral because Jordan tried to consult the court about the matter ahead of time.

“The appeals chamber confirms Jordan failed to comply with its obligations under the statute by failing to execute the court 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.

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

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

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

He noted South Africa, which failed to arrest Bashir during a 2015 visit, was also not referred to the UN.