In the wake of Monday’s decision by the ICC Appeals Chamber confirming that Jordan was under an obligation to arrest and surrender Omar Al-Bashir, there have been a flurry of excellent blog posts from various commentators (see for example, the posts by Dov Jacobs, Ben Batros, Dapo Akande, Asad Kiyani and Hemi Mistry). For the most part, these posts have focused on the most controversial aspect of the decision, namely the Appeals Chamber’s recourse to customary international law for what appears to be its primary basis for denying Head of State immunity to Omar Al-Bashir. The Judges could discern no opinio juris or state practice that would support the existence of such immunity vis-à-vis an international court in the proper exercise of its jurisdiction (paras. 100-119, or for ease of reference, “Road 1”).

Having so found, the Appeals Chamber then proceeded to equally find that as Sudan was obliged to “cooperate fully” by virtue of UNSC Resolution 1953 which triggered ICC jurisdiction, article 27(2) was automatically in force. Consequently, Sudan could not claim any immunity in respect of Al-Bashir, nor could Jordan claim that such immunity needed to be waived before effecting his arrest (paras. 120-149, or “Road 2”). In addition, the Appeals Chamber made passing reference to the fact that the Convention against Genocide also necessitated the arrest of Al-Bashir (para. 161).

I will leave to more learned scholars than I to debate the substantive legal propriety of the reasoning on immunities in Road 1. Instead, this post takes a more procedural perspective, and considers that the Chamber arguably should not have pursued Road 1 at all, because – as the Appeals Chamber itself acknowledges – Road 1 was not strictly on appeal.

As recalled by the Appeals Chamber, the three issues certified for appellate review were as follows:

i) The Chamber erred with respect to matters of law in its conclusions regarding the effects of the Rome Statute upon the immunity of President Al-Bashir, including its conclusions that Article 27(2) of the Rome Statute excludes the application of Article 98; that Article 98 establishes no rights for States Parties; that Article 98(2) does not apply to the 1953 Convention; and that even if Article 98 applied it would provide no basis for Jordan not to comply with the Court’s request;

ii) The Chamber erred with respect to matters of law in concluding that U.N. Security council resolution 1593 (2005) affected Jordan’s obligations under customary and conventional international law to accord immunity to President Omar Hassan Ahmad Al-Bashir; and

iii) Even if the Chamber’s Decision with respect to non-compliance was correct (quod non), the Chamber abused its discretion in deciding to refer such non- compliance to the Assembly of States Parties and the U.N. Security Council. (Al-Bashir Appeal Decision, para. 17)

Clearly, issues (i) and (ii) are confined to specific provisions of the Rome Statute, and the effect of those provisions on Al-Bashir’s immunity in the wake of UNSC Resolution 1953. The abstract question of whether a Head of State generally enjoys immunity before an international court was not certified for appeal. What is more, the Appeals Chamber recognises this, but deems it not to be problematic. It nevertheless considered Road 1 to be “intrinsically linked” to the question on appeal (para. 98). But this logic is internally inconsistent, as the Chamber’s own findings later reveal. This is because the Appeals Chamber goes on to confirm the legality of Road 2, the UNSC route affirmed by the Pre-Trial Chamber. If Road 2 was indeed correct, then there was no need to embark on Road 1. The “intrinsic link” therefore doesn’t appear to be one that demands judicial enquiry. With this in mind, let us next recall the standard of appellate review:

A. Standard of Review

33. With respect to errors of law, the Appeals Chamber has previously found that it:

[…] will not defer to the Trial Chamber’s interpretation of the law. Rather, it will arrive at its own conclusions as to the appropriate law and determine whether or not the Trial Chamber misinterpreted the law. If the Trial Chamber committed such an error, the Appeals Chamber will only intervene if the error materially affected the Impugned Decision.

[…] A judgment is ‘materially affected by an error of law’ if the Trial Chamber ‘would have rendered a judgment that is substantially different from the decision that was affected by the error, if it had not made the error’. (Al-Bashir Appeal Decision, para. 33)

Thus, the Appeals Chamber should only intervene where there has been an “error of law” that has “materially affected” the decision, and a “substantially different” decision would have been made but for the error.

Having traversed Road 1 of its own accord, the Appeals Chamber goes on to repeatedly find that in respect of Road 2, the Pre-Trial Chamber’s interpretation of the Statute – and specifically the applicability of article 27(2) – was “correct in law” and that it “did not err” (see paras. 119, 126, 131, 132, 149).

What the Appeals Chamber fundamentally disagrees with (see para. 119) is the Pre-Trial Chamber’s assertion that it was unable to find “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”, thus justifying the initial journey on Road 1.

However, even if this finding was an error (and indeed, properly on appeal), as the Appeals Chamber states – and this is very much a contested point, as others have noted – it arguably was not an error that “materially affected” the decision, nor would there have been a substantially different conclusion, as the Appeals Chamber itself acknowledges at para. 119. This is because Road 2 leads to the same destination: Jordan should still have arrested and surrendered Omar Al-Bashir because he enjoyed no immunity.

The need to pursue Road 1 is made all the more puzzling by the Appeals Chamber’s own acknowledgement that “the issues in this appeal ultimately rest on a proper construction of the provisions of the Rome Statute, in particular articles 27(2), 86, 89 and 98 of the Statute” (para. 97). If this holds true, adherence to article 21(1), which requires the Court to “apply in the first place, the Statute […]”, the present appeal would have been readily disposed of by confirming the legality of Road 2 without the need to resort to customary international law and Road 1, and simply affirming the Pre-Trial Chamber’s conclusion on the immunity question.

Finally, two points regularly made by parties in appellate litigation at the ICC is that the Appeals Chamber has previously declined to enter findings where any discussion of the issues raised would be “abstract and hypothetical,” and that it does not exist to render “advisory opinions“.

Yet, by taking, and affirming, Road 1, the Appeals Chamber appears to have done exactly that.