The International Criminal Court (ICC) on December 11, announced that it would refer Jordan to the United Nations Security Council (UNSC)  for failing to arrest Sudanese President Omar al-Bashir when he visited Amman in March to attend the Arab League summit. The ICC issued two arrest warrants against al-Bashir in 2009 and 2010 for his role in alleged crimes against humanity, war crimes, and crimes of genocide committed in Sudan between 2003 and 2008.

The main justification used by the ICC is that Jordan as a member is legally obliged to carry out its arrest warrants. It should be noted that because Sudan is not a state party to the Rome Statute- a multilateral treaty serving as the foundational and guiding legal instrument of the ICC- the Hague-based tribunal does not have automatic jurisdiction to investigate alleged war crimes in this country. But the UNSC referred al-Bashir case to the ICC  in March 2005, thus making al-Bashir the first ever sitting head of state to be wanted by an international court.

The ICC began functioning in July 2002, the date that the Rome Statute entered into force, and has the jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, and war crimes. The ICC is intended to complement existing national judicial systems and it may therefore only exercise its jurisdiction when certain conditions are met, such as when national courts are unwilling or unable to prosecute criminals or when the UNSC or individual states refer situations to the Court. 

Relevant Policy

Escalation by the ICC against Jordan is part of steps taken as part of the al-Bashir case, which can be outlined as follows: 

1- The ICC issued two warrants for the arrest for Al Bashir in March  2009 and July 2010 over charges of five counts of crimes against humanity including murder, extermination, forcible transfer, torture and rape, two counts of war crimes for attacking civilians and pillaging, as well as three counts three counts of genocide allegedly committed against the Fur, Masalit and Zaghawa ethnic groups in Darfur, Sudan, from 2003 to 2008.

2- In 2015, a diplomatic row broke out between the ICC and the South African government when Bashir visited South Africa in 2015 and Pretoria failed to arrest him. South Africa argued that doing so would have been a violation of the immunity Bashir enjoys as a head of state. According to Reuters, the argument was rejected by South African courts as well as the ICC.

The ICC ultimately did not refer South Africa to the Security Council, however, saying it was not clear that doing so would have any effect. Kenya and South Africa have threatened to withdraw from the ICC over perceived bias against African countries. Burundi, which is under ICC investigation, has actually withdrawn.

3- In June, ICC Prosecutor Fatou Bensouda, in the ICC’s 25th briefing to the UNSC, criticized Jordan for acting in non-compliance with the Rome Statute when it failed to arrest and surrender al-Bashir upon request from the ICC. She has also lashed out at the UNSC for relinquishing and undermining its clear role on such matters arising from the Rome Statute and the Council's resolution 1593 of 2005 on the situation in Darfur. 

Jordan signed the Rome Statute on 7 October 1998, and four years later, in 2002, deposited its instrument of ratification of the Rome Statute as per Law No. 12 of 2002. 

Following 10 new ratifications, including by Jordan and nine other states on the same day, the Rome Statute entered into force in July 2002, as per Article 126 and the International Criminal Court was formally established. This brought the number of ratifications to 66, or six past the total required for the entry into force of the landmark treaty.

Jordan’s Reaction

Jordan’s reaction to the ICC’s escalatory decision came as follows: 

1- Jordan’s government reiterates that it has not so far received any documents on the ICC’s decision. It says inviting al-Bashir to attend the Arab League Summit was based on the charter of the regional organization which states that all heads of state of member states should be invited to the annual summit. 

2- Jordanian Foreign Ministry’s Spokesperson Mohammad al-Kayed stated that "the ICC decision discriminates against Jordan", is based on loopholes and does not take into consideration the fact that the Sudanese president enjoys diplomatic immunity under international law. He added that the Jordanian government is considering all political and legal options to respond to the decision. 

Political Motives

The timing of the ICC’s decision reveals political motives that can be outlined as follows:

1- Jordan is escalating against the United States and Israel after President Donald Trump announced the United States’ decision to recognize Jerusalem as the capital of the Jewish state. Escalation by Jordan is driven by its status as custodian of the Muslim holy sites in Jerusalem, its capacity as the current president of the Arab League and is pushing for an emergency summit for the regional organization. 

2- Particularly sensitive to any changes of status of Jerusalem, Jordan is at the forefront of an offensive launched as an attempt to take a hard line position against the US decision. Amman called for an emergency meeting of Arab foreign ministers and also coordinated with Turkey, which holds the chairmanship of the Organisation of Islamic Cooperation, to hold an emergency an emergency meeting. 

3- Ongoing efforts towards undermining Amman’s moves over Jerusalem are aimed at depicting Jordan as a state in violation of international judicial resolutions and in non-compliance with the stances and approaches taken by the international justice system. 

3- After the ICC issued warrants of arrests for him, Al-Bashir made several foreign trips including to Chad (2010), Kenya (2010), Djibouti (2011), Malawi (2011), Nigeria (2013), Saudi Arabia (2014), the United Arab Emirates (2015) and Egypt (2014), all of which are signatories to the  Rome Statute. The ICC failed to refer any of these states to the UNSC, which reveals that the ICC’s stance against Jordan are selective and in violation of international law and further support the view that the ICC is under political pressure to project this issue at this time. 

Targeted Pressure

In light of this, it can be said that the ICC’s decision to refer Jordan to the UNSC is a political measure aimed at putting pressure on Jordan in response to its escalation over Jerusalem. The scope of this pressure is beyond its stated aim, which is to impose restrictions on al-Bashir’s foreign movements in the future and prevent ICC member states from receiving him on their territory.  

The UNSC is unlikely to make a decision on the ICC’s referral of Jordan. Despite the powers vested in it to impose sanctions on states for refusing to cooperate with the ICC, the UNSC has not made any decision on any such referrals from the tribunal, and doing so now would certainly set a historic precedent.