ICC: Jordan Was Required to Arrest Sudan’s Bashir

Appeals Chamber Rules States Must Arrest Wanted Leaders

The International Criminal Court (ICC) ruled on May 6, 2019 that Jordan failed to meet its international legal obligations to arrest then-President Omar al-Bashir of Sudan during a 2017 visit, Human Rights Watch said today. The ICC appeals chamber said that a sitting head of state does not have immunity from arrest for alleged grave crimes even when the leader is from a country that has not joined the ICC.

Al-Bashir, who was ousted as president on April 11, 2019, after four months of mass protests across Sudan, is wanted by the ICC on charges of genocide, crimes against humanity, and war crimes for his alleged role in Sudan’s abusive counterinsurgency campaign in Darfur. The conflict in Darfur has resulted in the deaths of over 300,000 people and the displacement of several million others. The ruling involved his visit to Jordan, an ICC member, in March 2017 during an Arab League summit. 

“In a major ruling, the ICC found that heads of state properly sought on charges by the court are not immune from arrest,” said Elise Keppler, associate international justice director at Human Rights Watch. “The decision helps to assure that victims of mass atrocities have access to justice even when the highest-level officials are implicated in the crimes.” 

Sudan is not a member of the ICC, but in 2005 the United Nations Security Council referred the Darfur situation to the ICC. The ICC prosecutor opened an investigation, and arrest warrants were issued in 2009 and 2010 against al-Bashir. At the time of the visit to Jordan, Jordan claimed it was not obligated to arrest al-Bashir given his status as a head of state of a non-ICC member. 

The five-judge appeals chamber unanimously upheld the pre-trial chamber’s ruling that Jordan was required to arrest al-Bashir when he was on Jordanian territory. The judges found that there is no immunity for heads of state before an international criminal court with authority. As a result, the judges concluded that no traditional principle of head-of-state immunity – which protects leaders on foreign soil from arrest – existed that was necessary to be waived. 

The chamber found that the Security Council resolution that referred Darfur to the ICC also required Sudan to cooperate fully with the court. The judges determined that this requirement meant that Sudan had to ensure that any immunities could not be a bar to the court’s functioning.

The chamber found that Jordan was also obligated to arrest al-Bashir as both Jordan and Sudan are parties to the Convention on the Prevention and Punishment of the Crime of Genocide, and that members of the convention commit to prevent and punish genocide, one of the crimes with which al-Bashir is charged.

The chamber also ruled by a majority that the pre-trial chamber erred by sending Jordan’s failure to cooperate to the Security Council and the court’s assembly of members. The chamber found that this action was based on an incorrect conclusion that Jordan did not try to consult the court ahead of the visit.

Sudan has repeatedly obstructed the ICC’s investigation in Darfur, and there are four other individuals subject to outstanding ICC arrest warrants for alleged crimes in Darfur.

During his presidency, al-Bashir sought to maintain legitimacy – and flout the ICC – bytraveling abroad while subject to arrest warrants. Some countries, both members and non-members of the ICC, hosted him, while others made clear he was not welcome on their territories or rescheduled meetings to avoid his presence. Nongovernmental groups across Africa and globally have campaignedfor his surrender

On April 17, media reported that al-Bashir was being held in Kober prison in Khartoum, Sudan’s capital. The transitional military council that assumed control in the country has said they would not hand al-Bashir over to face justice at the ICC, but could try him in Sudan or a forthcoming civilian government could do so. Human Rights Watch urged Sudan’s council to promptly turn al-Bashir over to the ICC.  

The ICC appeals chamber heard oral arguments from September 10-14, 2018. ICC prosecutors have been investigating al-Bashir since 2005, when the Security Council referred the situation in Darfur to the ICC. There are two outstanding arrest warrants against al-Bashir stemming from the investigation for five counts of crimes against humanity, two counts of war crimes, and three counts of genocide. The ICC had previously found that ICC members, including South Africa, Chad, Uganda, Malawi, and Djibouti, breached their obligations as ICC members by failing to arrest al-Bashir when he visited their countries.

“Whether president or prisoner in Sudan, al-Bashir remains a fugitive from the ICC on charges of the gravest crimes committed in Darfur,” Keppler said. “Al-Bashir should be surrendered to the ICC to face the charges against him.”

Al-Bashir Case: ICC confirms Jordan’s non-cooperation but reverses the decision referring it to the U.N. Security Council

The International Criminal Court on Monday reversed the decision to refer Jordan to the U.N. Security Council for its failure to arrest Sudanese war crimes suspect Omar al-Bashir when he visited Amman in 2017, judges said on Monday, reversing an earlier decision.

The ICC issued two arrest warrants against Mr Al-Bashir for five counts of crimes against humanity

Bashir, who was 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.

In the appeal brought by the Hashemite Kingdom of Jordan , the Appeals Chamber of the International Criminal Court has confirm the decision of ICC Pre-Trial Chamber II, that it found that Jordan, a State Party to the ICC Rome Statute since 2002, had failed to comply with its obligations by not arresting Mr Omar Al-Bashir was on Jordanian territory attending the League of Arab States’ Summit on 29 March 2017.

The Appeals Chamber, noting the particular circumstances of this case, decided by majority to reverse the decision of the Pre-Trial Chamber to refer the matter of Jordan’s non-compliance to the Assembly of States Parties and the United Nations Security Council.

The Appeals Chamber held that article 27(2) of the ICC Rome Statute, stipulating that immunities are not a bar to the exercise of jurisdiction, reflects the status of customary international law. It concluded that there is no Head of State immunity under customary international law vis-à-vis an international court.

The Appeals Chamber further found, by majority, that the Pre-Trial Chamber had erroneously exercised its discretion in referring Jordan’s non-compliance to the Assembly of States Parties  (ASP) and the United Nations Security Council (UNSC) , based on an incorrect conclusion that Jordan had not sought consultations with the Court.

The dissenting judges would have found that the Pre-Trial Chamber did not err or abuse its discretion, and would have confirmed Jordan’s referral to the ASP and the UNSC. The dissenting judges consider that this referral is not punitive in nature or a sanction imposed upon Jordan. Rather, it is a call for action with the aim of fostering cooperation with the Court and enabling the effective realisation of the high values and objectives enshrined in the ICC Rome Statute.

Before deciding on the appeal brought by Jordan, the Appeals Chamber invited Sudan, Mr Al-Bashir, other states and international and regional organisations as well as professors of international law to submit written observations on the matters raised in the appeal and held a hearing.

Judge Eboe-Osuji, Judge Morrison, Judge Hofmański and Judge Bossa append a joint concurring opinion to this judgment on grounds one and two of the appeal. Judge Ibañez and Judge Bossa append a joint dissenting opinion to this judgment on ground three of the appeal.

On 4 March 2009 and 12 July 2010, respectively, the ICC issued two arrest warrants against Mr Al-Bashir for five counts of crimes against humanity (murder, extermination, forcible transfer, torture and rape), two counts of war crimes (intentionally directing attacks against a civilian population as such or against individual civilians not taking part in hostilities, and pillaging), and three counts of genocide allegedly committed against the Fur, Masalit and Zaghawa ethnic groups in Darfur, Sudan, from 2003 to 2008.

South Africa’s State-owned Oil Company Signs Deal to Explore Highly-prospective Oil Block B2 in South Sudan

South Africa’s state-owned oil company Strategic Fuel Fund (SFF) will own and operate Block B2; In 2018, South Africa agreed to invest $1billion into South Sudan’s energy infrastructure; South Sudan has the third-largest oil reserves in sub-Saharan Africa, estimated at 3.5 billion barrels, with just 30 percent of the country explored.

South Africa’s State-owned Oil Company Signs Deal to Explore Highly-prospective Oil Block B2 in South Sudan

South Africa today signed an exploration and production sharing agreement (EPSA) with South Sudan for Block B2.

The deal – which is strategic for South Africa as an energy consumer – will see Block B2 operated by the state-owned Strategic Fuel Fund (SFF), the Ministry of Petroleum and Nilepet –  the national oil company of the Republic of South Sudan. This is the second EPSA signed since South Sudan gained independence in 2012 and shows progress for the country’s oil industry as production resumes at existing oilfields and new exploration begins.

South Sudan is an established, world-class petroleum producing region, whose territory includes a large part of the Cretaceous rift basin system that has proved petroliferous in Chad and Niger as well as Sudan. It currently produces 160,000 bopd, and aims to increase production capacity to 270,000 bopd by the end of the year. The country has the third-largest oil reserves in sub-Saharan Africa, estimated at 3.5 billion barrels, with just 30 percent of the country explored to date.

Under this new EPSA which includes a six-year exploration period, the SFF alongside Nilepet, will launch a comprehensive aero gravity survey exploration campaign, seismic acquisition and drilling wells with great prospectivity. The SFF will also invest in capacity building initiatives, training of South Sudanese citizens, investing in social and community development projects and ensuring local content and women empowerment.

“The petroleum resources of Block B2 are vast. For South Sudan to reach its target of bringing back production levels of around 350,000 barrels of oil per day (bopd) and beyond, we need committed new entrants like the SFF,” said the Minister of Petroleum Hon.  Amb. Ezekiel Lol Gatkuoth. “South Sudan has great potential, yet our country remains vastly under-explored, and we believe the entry of new players like the SFF will lead to new world-class discoveries very soon given the aggressive exploration program and great petroleum viability of Block B3. This will support South Sudan’s economic revival and improve trade with other African countries.”

“We are bullish about this strategic and unique opportunity into Block B2 with great petroleum potential. It provides South Africa with a chance to further strengthen its energy security while entering one of the top three most lucrative onshore oil and gas markets in Africa,” said Hon. Jeff Radebe, South African Energy Minister. “South Africa has supported peace and economic development in South Sudan since the country’s independence and this is the continuation of long-term cooperation between both our countries and people. Investment is key to guaranteeing the economic progress of South Sudan”

Last year, South Africa’s Department of Energy pledged to invest $1 billion into South Sudan’s petroleum industry, with the aim of securing affordable energy supplies for South Africa. The countries are now in talks to set up a 60,000 barrel per day refinery to supply oil products to the local market in South Sudan, as well as to secure exports to Ethiopia and other neighboring countries.

“SFF is looking forward to working with our partners in South Sudan to make discoveries on this block. We believe there are highly significant quantities of oil in Block B2. Our work program and acquisition of new seismic will reveal better information on various structures. We look forward to a few wildcats and appraisal wells in the near future. We are thankful to the Government of South Sudan for this opportunity,” stated Godfrey Moagi, acting CEO of SFF.

The B2 area includes productive parts of the Muglad Basin and is part of the 120,000km2 Block B which was split into three in 2012. There has been much interest in South Sudan’s Block B acreages since the entry of Oranto Petroleum to Block B3 in 2017.  Much of South Sudan’s oil and gas blocks are yet to be fully explored and resources assessed.

The CEF group is responsible for discovering solutions that will meet South Africa’s energy needs. Through its subsidiaries, the Petroleum Oil and Gas Corporation of South Africa (PetroSA), Petroleum Agency South Africa (PASA), Strategic Fuel Fund (SFF), African Exploration Mining and Finance Corporation (AEMFC) and iGas, the group also manages the operations and development of the country’s oil and gas assets.

Sudanese stakeholders urged to fully cooperate with the AU Mission for consensual and civilian-led transition

The Chairperson of the African Union Commission, Moussa Faki Mahamat has called on all the Sudanese stakeholders to fully cooperate with the African Union Mission for consensual and civilian-led transition.

He renews his appeal to the international partners to fully support the work of the Mission.

Following the visit he undertook to Khartoum on 20 and 21 April 2019 and pursuant to the relevant communiqués of the Peace and Security Council, Mahamat sent a Mission to Sudan led by his Principal Strategic Advisor, professor Mohamed Hacen Lebatt, and including other staff from the Commission.

The Mission is mandated to support the negotiations among the Sudanese stakeholders and facilitate, as appropriate, an agreement that will make it possible to establish a consensual and civilian-led transition. It has already begun its consultations.

He expresses the hope that the ongoing efforts will soon lead to an agreement that is in line with the aspirations of the Sudanese people and which, as such, will help to lay solid foundations for the democratic transformation of the Sudan.

The African Union has also ordered Sudan’s military rulers to hand over power to a civilian authority or face suspension within 60 days.

The AU said it noted “with deep regret” that the military had not stepped aside and handed power to civilians within a 15-day period set by the AU last month.

The bloc also reiterated “its conviction that a military-led transition in the Sudan will be totally unacceptable and contrary to the will and legitimate aspirations, to democratic institutions and processes, as well as respect for human rights and freedoms of the Sudanese people”.

The military assumed power in Sudan after toppling the country’s long-time ruler Omar al-Bashir following months of anti-government protests.

Gains by Abyei interim force can help advance resolution of border issues between Sudan and South Sudan, UN peacekeeping chief says

Parfait Onanga-Anyanga, Special Envoy of the Secretary-General for the Horn of Africa, briefs the Security Council on the situation in the Sudan and South Sudan including the situation in Abyei. UN Photo/Evan Schneider:

The United Nations security force for Abyei remains essential to stability in the border regions between Sudan and South Sudan, the UN peacekeeping chief said on Tuesday, proposing the creation of a civilian unit to support progress towards political resolution of the dispute between the neighboring countries, and requesting a six-month extension of its mandate.

“This modest shift in the mission’s role is necessary to match the reality on the ground,” Jean-Pierre Lacroix, Under-Secretary-General for Peacekeeping Operations said during a briefing to the Security Council on the Secretary-General’s latest report on the work of the UN Interim Security Force, known by the acronym UNISFA.   

He explained that a civilian component would enable the mission to support the parties, the African Union High-Level Implementation Panel and the African Union Commission to advance daily solutions.

“The proposed support is particularly pertinent given the difficult internal circumstances in both countries,” noted Mr. Lacroix, adding: “It is important to prevent the dispute over Abyei and the border regions between Sudan and South Sudan from becoming another frozen conflict and preserve the gains achieved by UNISFA.”

Stressing that while the situation generally remains calm – amid efforts by the Ngok Dinka and Misseriya communities to preserve peace through dialogue – Sudan and South Sudan have made no progress on the issue of Abyei.

Further, there have been delays in the Council’s request to reconfigure the mission, he said. The first phase of troop reductions – a repatriation of 260 troops by 15 March – has not taken place, but efforts are under way to start the process on 12 May. 

As for the increase in police personnel, while the selection of police officers and the formed police unit has been completed, 130 visas from the Sudanese Government, necessary for their deployment, remain outstanding.

Against this background, Mr. Lacroix said that while UNISFA continues to play a stabilizing role in the Abyei Area and along the border regions, the operation can only provide a conducive environment for the parties, whose own efforts remain essential to progress.

“I am encouraged by the significantly improved relations between the two countries in the past year, as evidenced by Sudan’s role in facilitating the revitalized peace agreement reached by the South Sudanese parties and the resumption of joint oil operations,” he told the Council, urging the two countries to continue this “positive trajectory” and extend their cooperation to move forward on the resolution of their disputes.

Also briefing the Council, Parfait Onanga-Anyanga, the UN Secretary-General’s Special Envoy for the Horn of Africa, said that both id Sudan and South Sudan “are at a crossroads with critical political processes under way.”

Following the ouster of Sudan’s President on 11 April after months of popular protests, the new authorities may need time to resume bilateral relations on the border, the Two Areas and Abyei. 

“We have a de facto status quo situation,” he said. In the absence of a joint administration and progress on Abyei’s final status, UNISFA remains central to preventing and resolving intercommunal conflicts.

In the coming weeks, he will encourage the respective capitals, Khartoum and Juba, to take a fresh look at the Abyei file, with a focus on implementing temporary arrangements for the Area’s administration. 

Noting that Sudan’s political transition could allow for redefining relations between the “centre” and its “peripheries” in a way that ends discrimination based on ethnicity, religion and territorial belonging, he said he will encourage parties to resolve the conflicts on the basis of a new political dispensation.

Pope Francis Admonishes South Sudan leaders to ‘Stay in Peace’

On Thursday in the Vatican in an unprecedented gesture Pope Francis kisses the feet of South Sudan President Salva Kiir as he prays and begs for peace in that country. 

The pope begged the leaders to give peace a chance. At right is Vice President Riek Machar. (CNS photo/Vatican Media via Reuters)

“I’m asking you with my heart,” the pope said to the president, Salva Kiir, and the opposition leader, Riek Machar, clutching his hands in front of his chest. “Stay in peace.”

The dramatic gesture happened during a spiritual retreat by the two men at the Vatican and came only hours after the military in neighboring Sudan ousted its longtime leader, President Omar al-Bashir, after 30 years of authoritarian rule.

Millions have sought refuge in neighboring countries

According to The New York Times, Pope Francis sat at his desk in a small room inside the Vatican facing the South Sudanese leaders, who were seated on a couch. The pope read remarks in which he said that while God’s gaze was on them, “there is another gaze directed to you: is the gaze of your people, and it expresses their ardent desire for justice, reconciliation and peace.”

The pope encouraged the two leaders to find common ground.

“I urge you, then, to seek what unites you, beginning with the fact that you belong to one and the same people, and to overcome all that divides you,” he said. “People are wearied, exhausted by past conflicts: Remember that with war, all is lost!”

At the conclusion of his speech, the pope offered some impromptu remarks, appealing to them again to keep the peace.

According to Human Rights Watch, since the start of the conflict, almost 2 million people have been internally displaced, and another 2 million have sought refuge in neighboring countries, with 1 million in Uganda alone. More than 230,000 people are sheltering in six United Nations bases in towns across the country. 

UN-AU Joint Task Force on Peace and Security Holds Sixteenth Consultative Meeting in Addis-Ababa

The meeting explored prospects for cooperation in support of the upcoming electoral processes on the continent and discussed the situation in eastern Democratic Republic of Congo (DRC), Central African Republic (CAR), Burundi, Mali and the Sahel region including the security situation in Burkina Faso and Niger. They also exchanged views on the situations in Libya, South Sudan and the Lake Chad Basin region.

The African Union (AU) Commission and the United Nations (UN) Secretariat were represented respectively by Commissioners Smaïl Chergui (Peace and Security), Minata Samaté-Cessouma (Political Affairs); and the Under-Secretaries-General Rosemary DiCarlo (Political and Peacebuilding Affairs), Jean-Pierre Lacroix (Peace Operations) and Hanna Tetteh (Special Representative of the Secretary General to the African Union).

They were accompanied by other senior officials from the two Organizations including Under-Secretary General Bience Gawanas, Special Adviser on Africa to the United Nations Secretary-General and Ambassador Fatima Kyari Mohammed, Permanent Observer of the African Union to the United Nations.

The meeting reviewed the status of the partnership between the UN and the AU. The Joint Task Force took note of the considerable progress achieved in the UN-AU partnership including the holding of the Second African Union-United Nations Annual Conference in Addis Ababa on 9 July 2018, the 12th UN-AU Consultative Meeting on the Prevention, Management and Resolution of Conflict (Desk-to-Desk) to be held in Addis Ababa on 11-12 March 2019, as well as the upcoming Third UN-AU Annual Conference.

In the review of the status of implementation of the UN-AU Framework for Enhanced Partnership in Peace and Security, the Joint Task Force welcomed the cooperation between the two organizations in Madagascar and CAR as models of cooperation which offer useful lessons to inform future joint endeavours in the prevention, management and resolution of conflicts.

The Joint Task Force acknowledged the increased mutual support to peace operations in Africa. In furtherance of this mutual cooperation, they explored the “Action for Peacekeeping” initiative to enable missions to be more effective, better equipped, safer and more robust. The Joint Task Force also underlined the need to jointly promote the full participation of Women in electoral and peace processes as well as peace operations, including at the leadership level.

The Joint Task Force welcomed the signing of the peace and reconciliation agreement in the Central African Republic on the 6 February 2019 by the Government of the Central African Republic and the 14 armed groups and congratulates all stakeholders for the successful conclusion of the talks that took place in Khartoum, Sudan. The Joint Task Force commended the leadership role of the African Union in the talks, which were carried out with the support and collaboration of the United Nations, within the context of the African Initiative for peace and reconciliation in the Central African Republic. The Joint Task Force underlined the need for continued engagement by all parties and called on neighbouring countries and all relevant international and regional partners for support in the implementation of the agreement reached for the stability of the Central African Republic and the region.

On the situation in the Great Lakes, they welcomed the peaceful elections and transition of power in the Democratic Republic of Congo whilst appreciating the need to redouble efforts to resolve the persistent security challenges in the eastern parts of the country. They welcomed the readiness of the Government of the DRC to work in collaboration with the UN to address the challenges facing the DRC. On the situation in Burundi, the Joint Task Force took note of the recent Summit of the East African Community (EAC) held in Arusha, Tanzania on 1February 2019, and reiterated its support to the EAC-led mediation.

On the situation in Mali, the Joint Task Force was encouraged by recent progress in the implementation of the 2015 peace agreement, including the launching of an accelerated DDR process. The Joint Task Force called upon all stakeholders to sustain their commitment and accelerate the implementation of the measures under the Agreement. The Joint Task Force equally expressed concern about the deteriorating security situation in the centre of Mali and urged the Government to augment its efforts in addressing the increasingly complex situation, with the support of partners. The Joint Task Force noted the need for all international partners to continue to support MINUSMA. The issue of the establishment of a joint group to work on residual issues including inter communal violence was raised and can be a topic for further discussions.

On the Sahel, the meeting agreed to seek to enhance collaboration between AU High Representative for the Sahel, Mr. Pierre Buyoya, and Special Representative of the United Nations Secretary-General, Mr. Mohamed Ibn Chambas to explore ways of jointly supporting initiatives to prevent and resolve conflict and sustain peace in the Sahel. Regarding the G5 Joint Force, the meeting welcomed the resumption of its operations and called on international partners to provide it with necessary resources to implement its mandate. The meeting further appealed to the international community to honour the pledges made at the donors conference held in Nouakchott, Mauritania in December 2018 to address development needs.

The Joint Task Force expressed its continued engagement in support of the implementation of the peace agreement in South Sudan. The senior officials discussed the need for increased political and financial support to the peace process and underlined the importance of creating conducive conditions for the return of opposition groups before the commencement of the interim period of April 2019. They called for support of the international community to the R-JMEC and CTSAMVM to safeguard compliance with the R-ARCSS, especially the ceasefire. The senior officials welcomed the role played by IGAD in the peace process and took note of the holding of an upcoming IGAD Summit.

The senior officials also discussed the situation in the Lake Chad Basin region and expressed concern at the persistent attacks by Boko Haram, which continue to exert a heavy impact on civilians. They welcomed the endorsement by the AU Peace and Security Council of the Regional Strategy for the Stabilization, Recovery and Resilience of the Boko Haram-affected areas of the Lake Chad Basin. The AU and the UN reaffirmed their commitment to support the efforts of the Lake Chad Basin Commission in the implementation of the strategy and called on donors to honour the pledges made during the High-Level Conference on the Lake Chad Basin region in Berlin in September 2018.

The next statutory meeting of the Joint Task Force will take place in New York in September 2019, on the margins of the 74th Session of the United Nations General Assembly.