ICC: South Africa’s Failure to Arrest Sudanese President Violates Rome Statute
In its decision of July 6, 2017, a pre-trial chamber of the International Criminal Court (ICC) held that South Africa violated its obligations under the Rome Statute by failing to comply with an ICC request to arrest and turn over to ICC custody Sudanese President Omar al-Bashir, who is wanted on multiple counts of crimes against humanity, war crimes, and genocide in relation to the conflcit in Darfur. [ICC Press Release] Al-Bashir was in South Africa for a meeting of the African Union from June 13–15, 2015. [ICC Press Release] Despite its conclusion, the Court elected not to refer South Africa’s non-compliance to either the Assembly of States Parties – the legislative body of the ICC – or the United Nations Security Council, citing the fact that South African courts have already disposed of the matter. [ICC Press Release] The referrals, the Court said, are unnecessary to obtain cooperation from South Africa. [ICC Press Release] This decision could have implications for al-Bashir and others wanted by the ICC as they decide whether and where to travel. [New York Times] Since the issuance of his first arrest warrant in 2009, al-Bashir has managed to travel internationally to Asia and within Africa, but has strategically avoided the United States and Western European countries where he faces a greater risk of arrest. [New York Times]
The Court’s Decision
Existence of a Duty
Beginning in September 2015, the Court sought to determine whether South Africa violated its duties under Article 87(7) of the Rome Statute, the ICC’s founding treaty, by failing to arrest Omar al-Bashir when he was present on its territory. See ICC, Prosecutor v. Omar Hassan Ahmad al-Bashir, ICC-02/05-01/09, Decision under Article 87(7) of the Rome Statute on the Non-compliance by South Africa with the Request by the Court for the Arrest and Surrender of Omar Al-Bashir, 6 July 2017, para. 17. The relevant provision asserts that a State party may be found in non-compliance with its obligations when it fails to fulfill a cooperation request from the Court, in turn hindering the Court’s ability to operate. See Rome Statute, art. 87(7).
In May 2015, upon learning that Omar al-Bashir was planning to attend a meeting in South Africa the following month, the Court requested that South African authorities arrest and surrender him to the ICC should he enter the territory and to consult with the Court if anything prevented them from doing so. See Prosecutor v. Omar Hassan Ahmad al-Bashir, 6 July 2017, paras. 5–6. South Africa requested a meeting with the Prosecutor on June 11, 2015, and both parties held a meeting the following day in which the Prosecutor informed South Africa’s representatives that the meetings did not suspend its obligations under the Statute. See id. at paras. 9-10. Al-Bashir entered South Africa on June 13, 2015, and departed two days later without intervention. See id. at para. 16.
In determining whether this constituted a violation of South Africa’s duties, the Court considered both (1) the prospect of al-Bashir’s entitlement to diplomatic immunity and (2) whether or not South Africa’s engagement with the Court immediately prior to al-Bashir’s visit absolved it of responsibility. See id. at paras. 7–10, 63. It found that the personal immunity al-Bashir would normally be entitled to as a high-ranking official under customary international law did not apply because the Rome Statute specifically states that such immunities “shall not bar the Court from exercising its jurisdiction over [relevant individuals].” See id. at paras. 74, 81, 91–92; Rome Statute, art. 27(2).
Moreover, the meetings held between South African authorities and ICC representatives around the time of al-Bashir’s visit, the purpose of which was to determine whether South Africa’s detention of al-Bashir would violate South Africa’s legal duties to Sudan, did not relieve the State of its obligations. See Prosecutor v. Omar Hassan Ahmad al-Bashir, 6 July 2017, paras. 110, 120–22. South Africa failed to present sufficient information at the time of the consultations to demonstrate that arresting al-Bashir would be in opposition to its legal commitments to Sudan, and a request for cooperation is valid until “explicitly withdrawn or suspended.” See id. at para. 120. Suspending the Court’s request while awaiting this information would have been “untenable” as the window of opportunity to arrest al-Bashir was very narrow. See id.
For these reasons, the Court held, when al-Bashir was on its territory, South Africa was required to honor the Court’s request for his detention and surrender. See id. at para. 92. By not doing so, South Africa failed to meet its obligations. See id. at para. 123.
Decision Not to Refer
The Court, considering all relevant factors, decided not to refer South Africa’s non-cooperation to either the Assembly of States Parties or the UN Security Council for further consideration. See id. at paras. 139–40. The Court viewed South Africa’s request for consultations with the ICC as a saving gesture that distinguishes it in a positive manner from other States. See Prosecutor v. Omar Hassan Ahmad al-Bashir, 6 July 2017, paras. 127–30. Moreover, the Court regarded further referrals as unnecessary to obtain cooperation from South Africa since the nation already acknowledged its responsibilities by finalizing a domestic Supreme Court of Appeal decision, which found South Africa’s conduct in June 2015 to be inconsistent with its obligations under both the Rome Statute and domestic legislation concerning its implementation, both of which provide for exceptions to al-Bashir’s otherwise active immunity. See id. at paras. 136, 138; Minister of Justice and Constitutional Development v. Southern African Litigation Centre (867/15)  ZASCA 17, 15 March 2016, para. 103.
Background on Omar al-Bashir and the War in Darfur
The ICC’s allegations against Omar al-Bashir stem from the conflict in Darfur, which took place from 2003 until at least 2008 between the Sudanese government and various armed opposition groups. Al-Bashir, who has been President of Sudan since 1993, allegedly orchestrated a counter-insurgency movement against these groups, the primary purpose of which was to unlawfully attack civilian populations thought to be closely connected to opposition groups. In carrying out its mission, the Sudanese government allegedly engaged in the systematic pillaging of towns, contaminating water supplies and committing acts of murder, rape, torture, and forcible transfer. See ICC, Al Bashir Case.
The UN Security Council referred the situation in Darfur to the ICC in March 2005. [ICC Press Release] After an investigation, the ICC issued its first warrant of arrest for al-Bashir in March 2009, followed by a second in July 2010. Al-Bashir is wanted on five counts of crimes against humanity, two counts of war crimes, and three counts of genocide. See id. He continues to elude arrest. See ICC, Al Bashir Case.
Background on the International Criminal Court
The ICC, which was inaugurated in 2002 and has its seat in The Hague, Netherlands, tries individuals for war crimes, genocide, and crimes against humanity. The Court has jurisdiction over cases in which the alleged perpetrator is a national of one of the 124 States parties to the Rome Statute, the crime was committed on the territory of a State party, the State involved authorizes the Court’s jurisdiction, or when the UN Security Council refers a situation to the Court. The ICC is an international tribunal designed to complement national judiciaries; thus, it can only step in when national courts are unable or unwilling to prosecute. See IJRC, International Criminal Court. The