## Facts

- The ICC issued arrest warrants for Omar Hassan Ahmad Al Bashir, then President of Sudan, for alleged war crimes, crimes against humanity, and genocide committed in Darfur.
- The UN Security Council referred the Darfur situation to the ICC and decided that Sudan must cooperate fully with the Court and the Prosecutor.
- South Africa is a State Party to the Rome Statute and received ICC requests to arrest and surrender Al Bashir.
- In June 2015, Al Bashir traveled to Johannesburg to attend an African Union summit hosted by South Africa.
- South Africa did not arrest Al Bashir during the visit and allowed him to depart.
- The ICC Pre-Trial Chamber addressed South Africa’s conduct in noncompliance proceedings under Rome Statute Article 87(7), after submissions and a hearing focused on the interaction between cooperation duties and head-of-state immunity.

## Issues

1. Whether South Africa failed to comply with its Rome Statute obligations by not arresting and surrendering Al Bashir during his June 2015 visit.
2. Whether Al Bashir’s alleged immunity as an incumbent head of state of a non-State Party (Sudan) excused South Africa’s noncompliance.
3. Whether Rome Statute Article 98(1) or an African Union host agreement required the ICC to obtain a waiver of immunity before requesting surrender.
4. If noncompliance occurred, whether the Chamber should refer South Africa to the Assembly of States Parties and/or the UN Security Council under Article 87(7).

## Decision

- The Chamber found South Africa failed to comply with its obligations to cooperate with the ICC and to execute requests for arrest and surrender.
- The Chamber held Al Bashir’s official capacity did not bar ICC-related arrest and surrender in this Security Council–referred situation.
- The Chamber rejected South Africa’s reliance on Article 98(1), concluding there was no applicable “third-state” immunity obstacle requiring a waiver for ICC purposes.
- The Chamber found the host agreement for the African Union summit did not confer immunity that displaced South Africa’s Rome Statute obligations.
- Despite the finding of noncompliance, the Chamber declined to refer the matter to the Assembly of States Parties or the UN Security Council.

## Legal Principles

- States Parties must cooperate fully with the ICC and comply with requests for arrest and surrender under the Rome Statute’s cooperation framework.
- Customary international law may recognize personal immunity for incumbent heads of state in horizontal state-to-state relations, but that does not necessarily control obligations arising in the ICC cooperation context.
- In a Security Council–referred situation accompanied by a cooperation mandate for the territorial state, the Court treated the referred state as bound to cooperate in a manner that removes relevant official-capacity immunity barriers for ICC proceedings.
- Rome Statute Article 98(1) does not bar cooperation where the requested state is not placed in a genuine conflict between ICC cooperation duties and an obligation to respect a third state’s immunity that remains operative for ICC purposes.
- A Chamber may make a finding of noncompliance under Article 87(7) yet exercise discretion not to refer the matter to political bodies, considering the circumstances and likely utility of referral.

## Conclusion

The Chamber concluded that South Africa breached its cooperation duties by failing to arrest and surrender Al Bashir, and that neither head-of-state immunity, Article 98(1), nor an AU host agreement excused noncompliance in a Security Council–referred Darfur situation; it nevertheless opted not to refer South Africa to the Assembly of States Parties or the UN Security Council.


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