Commentary On The Case Of Jordan’s Failure To Arrest Bashir

The establishment and operation of the International Criminal Court marked the fulfillment of the aspiration of the international community to establish a permanent and universal international criminal court.However,due to issues such as the application of head of state immunity,cooperation among State parties,and the exercise of discretion,the judicial fairness and justice of the International Criminal Court have been questioned in the international community.On May 6,2019,the International Criminal Court issued the latest judgment in the case of Jordan’s failure to arrest and transfer Sudan’s current head of state,Bashir.This provides an opportunity analyze and study the issues of head of state immunity,state cooperation,and court’s discretion.By combing the relevant judicial practices of the International Criminal Justice Institutions and interpreting the provisions of the Rome Statute,this article analyzes the ruling thoughts of the International Criminal Court in the case of Jordan’s failure to arrest Bashir,and summarizes the attitude and position of the International Criminal Court.Based on this,combined with the Chinese government’s position of emphasizing peace in the Darfur situation in Sudan and advocating respect for head of state immunity in the Bashir case,this article look forward to China’s future countermeasures on issues involving the International Criminal Court.Besides the introduction and conclusions,this article is divided into five parts:The first part reviews the background of the case and the results of judgment,and summarizes the three legal disputes involved in the case,namely the application of head of state immunity of a non-state party before the Court,the State party’s obligations to cooperate with the International Criminal Court,and whether there is abuse of discretion.The second part analyzes the application of the head of state immunity enjoyed by Bashir under customary international law before the International Criminal Court.After theoretically analyzing the international criminal jurisdiction,head of state immunity and their relationship,this article makes a comparative analysis of the similarities and differences of the decisionsrelated to this case,reveals the International Criminal Court’s insistence that Bashir does not enjoy head of state immunity,and holds that Bashir having no head of immunity is because the Security Council resolution triggered the normative application of the Rome Statute.The third part analyzes the State party’s cooperation obligations to the court.On the basis of an accurate interpretation of Article 98,paragraph 1,of the Rome Statute,it is considered that States parties should comply with head of state immunity of a non-State party’s current Head of State,even when executing a request for cooperation from the International Criminal Court.Finally,based on the facts of the case,from the perspective of state responsibility,it discusses that Jordan has not breached its international obligations and should not bear state responsibility.The fourth part analyzes the exercise of court discretion and its abuse.Based on the treaty and judicial precedent,after analyzing the factors affecting the discretion and the criteria for abusing the discretion,combining with the specific facts of the case,one-to-one correspondence and analysis resulted in the conclusion that the Second Pre-Trial Chamber did not abuse the discretion.The fifth part explores the Chinese government’s position in the Bashir case and its future strategic choices.Through various speeches and statements,we have found the Chinese government’s position against the International Criminal Court ’s handling of the Bashir case and advocating respect for the Bashir’s head of state immunity.Contrast the attitude of the International Criminal Court,look forward to China’s three future countermeasures on issues involving the International Criminal Court.One is to adhere to the role of non-state party,the other is persistently objecting to personal immunity exception,and the third is to track the progress of International Criminal Court cases and do a good job in class case studies.