## Facts

- The UN Security Council referred the Darfur situation to the International Criminal Court (ICC) in 2005.
- The ICC issued arrest warrants for Omar Hassan Ahmad Al Bashir, then President of Sudan, in 2009 (war crimes and crimes against humanity) and 2010 (genocide).
- South Africa, a Rome Statute State Party, hosted an African Union summit in Johannesburg in June 2015 under a host agreement providing immunities for delegates.
- Al Bashir entered and remained in South Africa during the summit and then departed without being arrested or surrendered to the ICC.
- South Africa requested consultations with the ICC under Rome Statute Article 97, asserting possible conflicting obligations between the ICC cooperation request and asserted immunities.
- Domestic litigation in South Africa resulted in court orders aimed at securing Al Bashir’s arrest and preventing his departure; a later appellate ruling found the government’s failure to arrest unlawful.
- The ICC Prosecutor sought a finding under Article 87(7) that South Africa’s failure constituted non-compliance and requested referral to the Assembly of States Parties and/or the Security Council.

## Issues

1. Whether South Africa failed to comply with the ICC request to arrest and surrender Al Bashir, within the meaning of Rome Statute Article 87(7).
2. Whether South Africa was entitled not to comply based on asserted head-of-state immunity and/or immunities under the African Union host agreement.
3. If non-compliance was found, whether the Chamber should refer South Africa to the Assembly of States Parties and/or the Security Council under Article 87(7).

## Decision

- The Chamber found South Africa failed to comply with its obligations to arrest and surrender Al Bashir and that the failure prevented the Court from exercising its functions and powers.
- The Chamber held South Africa was not entitled to refuse cooperation based on head-of-state immunity, the host agreement, or alleged customary international law immunities.
- The Chamber held that Article 97 consultations did not suspend the duty to execute an arrest warrant absent a Court decision to that effect.
- Despite the non-compliance finding, the Chamber declined to refer South Africa to the Assembly of States Parties or the Security Council, citing the lack of practical effect of prior referrals in similar circumstances.
- A judge issued a separate opinion disagreeing in part, including with the decision not to refer.

## Legal Principles

- Rome Statute Articles 86–89 impose a duty on States Parties to cooperate with the ICC, including executing requests for arrest and surrender in accordance with applicable procedures.
- Under Article 87(7), a State’s non-compliance that prevents the Court from exercising its functions may support a formal finding and potential referral to the Assembly of States Parties and/or, where applicable, the Security Council.
- Article 27(2) removes immunities tied to official capacity as a bar to the ICC’s exercise of jurisdiction; in this context, asserted head-of-state immunity did not justify refusal to arrest and surrender.
- A Security Council referral may be treated as placing the referred state in an analogous position to a State Party for purposes relevant to cooperation and the non-invocation of immunities against ICC proceedings.
- Article 97 consultations address practical or legal difficulties in executing cooperation requests but do not, by themselves, suspend the obligation to comply.

## Conclusion

The ICC held that South Africa breached its Rome Statute obligations by allowing Al Bashir to enter and depart without arrest and surrender, rejecting immunity-based justifications and concluding that consultations did not excuse non-compliance; the Chamber nonetheless declined to trigger Article 87(7) referral mechanisms due to their limited demonstrated impact.


Prosecutor v. Al Bashir, ICC-02/05-01/09-302 (Int’l Crim. Ct. Pre-Trial Ch. II 2017)