South Africa’s obligation to arrest
The ICC has issued two arrest warrants against Al-Bashir. As a party to the ICC Rome Statute, South Africa had an obligation to arrest and transfer the Sudanese president to The Hague.
Article 86 of the Rome Statute states that states parties shall cooperate fully with the ICC, while Article 89 specifically requires states to comply with the Court’s requests arrest and surrender.
Who did what?
The South African Litigation center, a civil society group, brought a suit in South African court seeking to compel Al-Bashir’s arrest. The court ordered Al-Bashir to remain in the country pending its ruling, but he was allowed to leave the country before a decision was made.
South Africa argued that Al-Bashir had immunity as a head of state attending an AU summit, an argument frequently made by the AU itself. However, the Rome Statute specifically precludes immunity for anyone, regardless of their political office. The UN Security Council, in referring the situation in Darfur to the ICC, implicitly waived immunity for Al-Bashir.
South Africa was reminded of its obligations to execute the arrest warrants for Al-Bashir by the president of the ICC’s governing body, as well as by an urgent ICC decision which explicitly stated that no other decisions, including those made by the AU, could be invoked to grant immunity to Al-Bashir.
Civil society also spoke out strongly against Al-Bashir’s visit and called for his arrest should he step foot on South African territory.
Who said what?
In the wake of Al-Bashir’s visit to South Africa, government officials, media and academics weighed in on what the episode means for the future of the ICC.
Civil society roundly condemned South Africa for failing to arrest Al-Bashir, while welcoming the court decision ordering him to remain in the country.
The New York Times Editorial Board criticized South Africa’s decision to let Al-Bashir go as disgraceful. UN Secretary-General Ban Ki-moon said that ICC member states must arrest Al-Bashir, but Archbishop Desmond Tutu said that the refusal of the world’s most powerful nations to comply with the ICC created the conditions for South Africa to decline to do so. Meanwhile, Darfuri refugees said that they were reassured by the court order for Al-Bashir’s arrest.
The office of Botswana’s president condemned South Africa for letting Al-Bashir go and called on all ICC member states to cooperate with the Court. The US State Department expressed concern over Al-Bashir’s visit. South Africa’s ruling party lauded the government’s decision to welcome Al-Bashir, and said that the ICC is no longer useful.
Academic Mark Kersten argued that while the outcome was not ideal, Al-Bashir’s visit might actually strengthen international law and demonstrate the impact the ICC has on state decisions, while Jens David Ohlin questioned whether Al-Bashir’s visit would shock the ASP or the UN Security Council to take action. Alex Whiting argued that the affair demonstrates that the ICC will only ever be as powerful as the international community decides it should be, and David Bosco contended that the incident was damaging to the Court.
A university professor working with the International Justice Project who was in South Africa during the AU summit said that public opinion on Al-Bashir’s presence and exit was mixed.
Justice Richard Goldstone and Marie-Claude Jean-Baptiste of the Cyrus R. Vance Center for International Justice wrote that the South Africa’s actions threaten its international standing as well as rule of law within the country. Human Rights Watch’s Liesl Gerntholz argued that the government’s non-compliance with court rulings was damaging to South Africa’s democracy.
A group of African civil society groups called on AU member states to publicly back the ICC and to incorporate the Rome Statute into domestic legislation.
What happens now?
For failing to comply with its obligation to arrest Al-Bashir, ICC judges could refer South Africa to the UN Security Council and the Court’s governing body, the Assembly of States Parties (ASP). It is then up to those two bodies to take further action.
In the past, the ICC has ruled that Chad, Malawi, Kenya and Djibouti each failed to cooperate with the Court by not arresting Al-Bashir.
The South African high court has given the government a week to explain why it allowed Al-Bashir to leave the country.
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