In June 2015, President Omar al-Bashir of Sudan, who is subject to an arrest warrant for crimes against humanity and genocide by the International Criminal Court, visited South Africa to attend a Summit of the African Union. South Africa is a State Party to the Rome Statute establishing the International Criminal Court and is under a legal obligation to execute all orders and decisions of the ICC, including the arrest warrant. President al-Bashir fled the country while its highest constitutional court was hearing a petition from the Southern African Litigation Centre for his arrest and surrender to the ICC. The matter was subsequently referred to the ICC for determination as to whether South Africa had failed to fulfil its international obligations under the Rome ICC Statute to arrest President al-Bashir and transfer him to the ICC; and, if so, what the consequences of that failure should be. On 6 July 2017, the ICC has handed down its decision, determining that South Africa had indeed breached its obligations in failing to arrest President al-Bashir while he was on South African territory.

“We are pleased that with today’s decision, the ICC has finally put this matter to rest”, said Alison Smith, NPWJ’s International Criminal Justice Director. “It was clear to us from day one that South Africa was in violation of its legal obligations to arrest President al-Bashir and transfer him to the ICC to stand trial. There was never a conflict of law: the Rome Statute, customary international law and even South Africa’s own domestic law are clear that Head of State immunity simply does not apply to crimes under international law, particularly when an arrest warrant for those crimes is issued by the ICC.”

“What was surprising about the events of June 2015”, Smith continued, “was that it was such a departure from previous practice whenever a visit had been threatened, when South Africa had advised Sudan it would have to arrest the President if he set foot on South African soil. It was even more concerning that the South African authorities not only violated their international obligations, they also violated their domestic ones, including a court order to prevent President al-Bashir’s departure from South Africa and to arrest him without warrant pending a formal request for surrender from the ICC.”

The ruling from the ICC’s Pre-Trial Chamber today affirmed these legal obligations but decided not to refer the matter to the UN Security Council, the body that had initially referred the situation in Darfur to the ICC. “An official referral of South Africa’s non-compliance with its obligations under the Rome Statute to the UN Security Council would seem to have been warranted, given the seriousness of what happened two years ago”, Smith stated. “The decision was based on a belief that a referral would do nothing to secure cooperation with the Court”.

Indeed, in a stinging rebuke, the Court noted that the systematic failure of the Council to take measures to enforce State cooperation in cases it has referred to the ICC meant that such a referral would be futile. In response, Smith noted that “what this means is that there appear to be no consequences for non-cooperation, even in the face of a Security Council Resolution requiring it. It’s a shame that the Security Council is not being alerted to this finding formally, given that they haven’t really done anything in follow-up to the two referrals they have made, either to encourage cooperation or to address instances of non-cooperation. The Security Council needs to pay more attention to this issue and decide what they are going to do to give effect to their own decisions, within their powers under the UN Charter. Article 41 of the UN Charter, for example, clearly gives them the power to influence States using non-military means.”

• Watch the interview with Alison Smith, Director of No Peace without Justice Program, TRT World TV

For further information, please contact Alison Smith on asmith@npwj.org or +32 (0)2 548 39 12 or Nicola Giovannini (Press & Public Affairs Coordinator) on ngiovannini@npwj.org or +32-2-548-3915.