To Arrest or Not Arrest? South Africa, the International Criminal Court, and New Frameworks for Assessing Noncompliance

Abstract

Abstract What are the consequences of prioritizing one obligation over another in a norm conflict on the norm that “loses”? How do these difficult choices affect how we understand the intent behind noncompliance with international law? This article examines South Africa’s decision not to arrest the then-President of Sudan, Omar al-Bashir, in the face of conflicting pressures from multiple international and domestic actors. South Africa’s conundrum over whether to arrest al-Bashir resulted in what we call “collateral noncompliance”: noncompliance with one obligation as a product of compliance with another. Understanding noncompliance like this highlights how seemingly bad-faith noncompliance can be a consequence of weighing competing obligations, rather than a deliberate attempt to shirk or undermine the nonchosen norm. It offers an alternative to perspectives that frame African states’ noncompliance with the International Criminal Court as inherently problematic, contributing instead to more critical, reflexive understandings of noncompliance and contestation as a natural part of norm development.