ICC Rules That South Africa Went Against The Rome Statute In 2015 By Failing To Arrest President Bashir

On July 13th, war crimes judges at the International Criminal Court (ICC) ruled that South Africa went against the Rome Statute when they failed to arrest the Sudanese President Omar al-Bashir while attending the African Union Summit in Johannesburg in 2015.

The ICC has been investigating President Bashir since 2005 when the Security Council asked the Court to investigate the crimes committed in Darfur between 2003 and 2008, where over 300,000 people had been killed and more than 2 million displaced. Despite the two arrest warrants issued in 2009 and 2010 for 10 related war crimes charges, including three of genocide in Darfur, the president has not been detained by any country and handed over to the ICC.

The judges ruled against the Republic’s lawyer’s argument that there is “no duty under the international law on South Africa to arrest” or “in any UN resolution that waves his diplomatic immunity.” The judges concluded that a country cannot put aside its international obligations just because it disagrees with the ICC’s verdict that President Bashir should not enjoy immunity. The judges said that Article 27.2 of the Rome Statute excluded the immunity for heads of state from arrest.

Meanwhile, civil society has applauded the decision of the ICC. Africa Program Director at Amnesty International, Netsanet Belay, said that this court ruling is a victory since it sends shockwaves to other ICC signatories, such as Jordan who have refused to arrest the president. She further states that this “decision makes it clear that they do in flagrant violation of international law.” Director of the Southern African Litigation Centre Kaajal Ramjathan-Keogh stated that she was not surprised by the judgement particularly because the South African courts made a similar decision.

Regardless of the decision by the ICC, the chairman of Parliament’s international relations committee, Siphosezwe Masango maintained that the Sudanese President had diplomatic immunity. He said that South Africa “acted in the best interests of African states and her people by not arresting a sitting head of state.” Moreover, he stated that “the government will study the ruling and its implications and seek legal opinion on available options. In the meantime, SA reiterates its total commitment to the principles of international justice.”

Despite the ruling, the judges have decided not to refer this noncompliance to the Assembly of States Parties or the United Nations Security Council for further action. Judge Cuno Tarfusser, while reading out his judgement, stated that the court believes that a referral “would not be an effective way to obtain the cooperation” of South Africa.

The South African government has five days to file an appeal against the ICC judgement.

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