To arrest or not to arrest the incumbent head of state: the Bashir case and the interplay between law and politics

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.