Abstract
In 2009, Sudanese President Omar Hassan Ahmad Al Bashir (‘President Bashir’) was indicted by the International Criminal Court (‘ICC’) on charges of war crimes and crimes against humanity over the conflict in the western region of Darfur, Sudan. The following year the ICC charged President Bashir with genocide over events in Darfur, where allegedly more than 300 000 people have died and more than two million people have been displaced since 2003. Before the ICC can prosecute President Bashir, it has to obtain custody over him. As a judicial institution without power to arrest those it indicts, the Court relies on national authorities. States to which President Bashir has travelled since the warrants for his arrest have been issued have been reluctant to arrest and surrender President Bashir to the ICC justifying their refusal by the head of state immunity argument. By focusing on the specific response of the South African government to the ICC’s arrest warrant against President Bashir in June 2015, this article considers the question of whether states must cooperate with the ICC in instances of an arrest warrant against a sitting head of state of a non-state party and observes the broader implications of state responses similar to the South African case.
Highlights
If Bashir were to come to South Africa today, we will definitely implement what we are supposed to in order to bring the culprit to [The] Hague
A request for an order further clarifying whether art 97 consultations with South Africa had concluded and that the Republic of South Africa was under the obligation to immediately arrest and surrender President Bashir was submitted by the International Criminal Court (ICC) Prosecutor and a responding decision following this request was issued by Judge Tarfusser.[78]
After confirmation that President Bashir had arrived in South Africa on Sunday, 14 June 2015, the Southern Africa Litigation Centre (‘SALC’) launched urgent proceedings against 12 respondents before the High Court of South Africa, Gauteng Division, Pretoria, seeking a number of orders aimed at arresting President Bashir,[82] including an order ‘[c]ompelling the Respondents forthwith to take all reasonable steps to provisionally arrest President Bashir in terms of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002’ and an order ‘[c]ompelling the Respondents to prevent President Bashir from leaving the country without taking reasonable steps to facilitate his arrest in terms of domestic and international laws’
Summary
If Bashir were to come to South Africa today, we will definitely implement what we are supposed to in order to bring the culprit to [The] Hague. The legal obligation to prevent and punish the crime of genocide was initially set out in the Convention on the Prevention and Punishment of the Crime of Genocide,[16] but has since emerged as a binding rule of customary international law and represents both erga omnes and jus cogens obligation.[17] South Africa’s obligation to arrest President Bashir was reinforced by Sudan’s and South Africa’s UN membership.[18] As this article observes, there are potential consequences that flow from South Africa’s failure to fulfil this duty These include the ICC finding South Africa in breach of its obligations under the ICC Statute and resulting in a referral to the Assembly of States Parties to the ICC and even to the Security Council for possible action. Part VI concludes that despite a legal basis for arrest of President Bashir, political nuances of the case curtailed President Bashir’s arrest creating implications for future effectiveness of the ICC
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