## Facts

- The United Nations Security Council referred the Darfur situation to the International Criminal Court (ICC) under Chapter VII in 2005.
- The ICC issued two arrest warrants for Omar Hassan Ahmad Al-Bashir (2009, 2010) for alleged genocide, crimes against humanity, and war crimes in Darfur.
- In June 2015, Al-Bashir traveled to South Africa for an African Union summit.
- The ICC transmitted requests to South Africa to arrest and surrender Al-Bashir if he entered South African territory and offered consultations when South Africa raised obstacles.
- South Africa did not arrest Al-Bashir and allowed him to leave the country.
- South African domestic courts later held the government’s failure to arrest Al-Bashir was unlawful under South African law and South Africa’s international obligations.
- The ICC initiated proceedings under Rome Statute Article 87(7) to determine whether South Africa failed to comply with cooperation requests and whether referral to the Assembly of States Parties (ASP) and/or the Security Council was warranted.

## Issues

1. Whether South Africa had a duty to arrest and surrender Al-Bashir despite his status as an incumbent head of state of Sudan, a non-State Party, and any claimed personal immunities.
2. Whether South Africa’s conduct constituted non-compliance under Article 87(7) by preventing the Court from exercising its functions and powers, and whether the matter should be referred to the ASP and/or the Security Council.

## Decision

- The Chamber held South Africa was obligated to arrest and surrender Al-Bashir during his 2015 visit.
- The Chamber found South Africa failed to comply with the ICC’s cooperation request in a manner that prevented the Court from exercising its functions and powers, satisfying Article 87(7).
- The Chamber declined to refer South Africa’s non-compliance to the ASP or the Security Council.
- A minority opinion disagreed with aspects of the majority’s reasoning on the legal effect of the Security Council referral on immunities.

## Legal Principles

- Under Article 87(7), the Court may find non-compliance where a State Party fails to cooperate with an ICC request in a way that prevents the Court from exercising its functions and powers; referral to the ASP or Security Council is discretionary.
- Even where customary international law generally recognizes personal immunity for incumbent heads of state from foreign domestic jurisdiction, that rule does not bar ICC-requested arrest and surrender when the Security Council’s Chapter VII referral places the situation in a posture comparable to that of a State Party for relevant cooperation purposes.
- In a Security Council-referred situation, Article 27’s rule that official capacity does not bar ICC proceedings was treated as removing immunity-based obstacles to arrest and surrender needed to execute ICC warrants.
- A host agreement for an international meeting cannot override pre-existing treaty obligations to cooperate with the ICC; such agreements were not read to confer immunity against execution of ICC arrest and surrender requests for core international crimes.
- In deciding whether to refer a non-compliance finding, the Court may consider whether referral would realistically advance cooperation, including the State’s subsequent engagement and domestic judicial responses.

## Conclusion

The ICC found South Africa breached its Rome Statute cooperation obligations by failing to arrest and surrender Al-Bashir during his 2015 visit, concluding that no applicable immunity excused non-execution of the Court’s request in the Darfur referral context; however, the Chamber exercised discretion not to refer the non-compliance to the ASP or the Security Council.


Prosecutor v. Omar Hassan Ahmad Al-Bashir (Situation in Darfur, Sudan), ICC-02/05-01/09 (Int’l Crim. Ct. Pre-Trial Chamber II 2017)