South Africa narrowly escaped referral to the Assembly of States Parties or the Security Council of the United Nations after neglecting its duty to apprehend and hand over Sudanese President Omar Al Bashir in 2015 .
This is reflected in the conclusions of three judges, sitting in the in the International Criminal Court pre-trial chamber over the Al Bashir matter. Judges Cuno Tarfusser, Presiding, Chang-ho Chung, and Marc Perrin de Brichambaut (who appended an individual opinion), found that South Africa failed to comply with its obligations by not arresting and surrendering Omar Al-Bashir to the ICC while Al Bashir was on South African territory between 13 and 15 June 2015. However, the Chamber considered that it is not warranted to refer South Africa’s non-compliance to the Assembly of States Parties or the United Nations Security Council (UNSC).
The Chamber therefore found that States Parties to the Rome Statute are under the duty to execute the warrants of arrest issued by the Court. The Chamber also added that the Host Agreement for the African Union Summit, by its own terms, did not provide immunity to Heads of State attending the Summit.
The Chamber also found that the arguments raised by South Africa in relation to the interactions with the Court between 11 and 13 June 2015 do not affect its finding that South Africa was under the duty to arrest Omar Al-Bashir and surrender him to the Court while he was on South African territory.
Nevertheless, the Chamber considered that a referral of South Africa’s non-compliance to the ASP and/or the UNSC was not warranted. For this finding, the Chamber considered of significance that South Africa was the first State Party to seek from the Court a final legal determination on the extent of its obligations to execute a request for arrest and surrender of Omar Al-Bashir.
In addition, the Chamber was not convinced that a referral would be warranted in order to achieve cooperation from South Africa, in the light of the fact that South Africa’s domestic courts have already found South Africa to be in breach of its obligations.
The Chamber made its decision unanimously but Judge Marc Perrin de Brichambaut appended an individual opinion explaining that both Sudan and South Africa are Contracting Parties to the Genocide Convention. The Contracting Parties to this Convention have implicitly waived the immunities enjoyed by their State officials, including sitting Heads of State, for the purpose of prosecutions for the crime of genocide.