…Court Relies on Member Countries to Arrest Fugitives
The International Criminal Court ruled on July 6, 2017, that South Africa should have arrested Sudanese President Omar al-Bashir during his June 2015 visit.
The judges decided not to refer South Africa’s non-cooperation to the UN Security Council and the court’s members, however. The judges said that in making the decision, they considered South Africa’s extensive interaction with the ICC on its perceived barriers to arrest, including written and oral submissions, and the purpose of referring such findings, which is to foster cooperation.
“The ICC decision that South Africa should have arrested Sudanese President Omar al-Bashir is consistent with previous ICC rulings,” said Dewa Mavhinga, Southern Africa director at Human Rights Watch. “Al-Bashir is a fugitive on genocide, war crimes, and crimes against humanity charges in Darfur, and the ICC relies on its members to enforce its warrants. The judges, however, decided not to issue a formal finding of non-cooperation this time given the factors surrounding the incident.”
Both the government of South Africa and the prosecutor can appeal the decision.
Al-Bashir’s visit to South Africa generated litigation before the country’s domestic courts, which concluded the government was obligated to arrest al-Bashir before he left the country.
The ICC convened a hearing on April 7 to determine whether South Africa failed to cooperate with the court. The ICC invited written submissions on the issue from the government of South Africa, the Office of the Prosecutor, and representatives of the United Nations ahead of the hearing.
The government of South Africa announced on October 20, 2016, that it would withdraw from the ICC. OnFebruary 22, the South African High Court declared the withdrawal to be unconstitutional and invalid due to a lack of parliamentary consultation. Discussions of a renewed withdrawal by South Africa are ongoing.