A lawyer representing South Africa at an International Criminal Court (ICC) hearing on 7 April defended the country's decision not to arrest Sudanese President Omar al-Bashir when he was inside South African borders in June 2015.
As a member of the ICC and state party to the Rome Statute, South Africa was expected to turn Bashir over to the Court for his outstanding warrants of arrest for committing war crimes, genocide, and crimes against humanity. The ICC does not have its own police force and therefore relies upon its members' cooperation in securing wanted individuals whenever they are within member states' sovereign territories. In fact, upon ratifying the Rome Statute of the ICC, member states pledged themselves to turning over those wanted by the ICC or risk the revocation of their membership.
However, at the hearing on 7 April regarding South Africa's actions, representatives of the country declared there had been no wrongdoing. "There is no duty under... the Rome Statute to arrest a serving head of state of a non-state-party such as Omar al-Bashir," the legal representative insisted. In addition to Sudan not being a member of the ICC, South Africa stated Bashir had immunity from arrest under Article 98 of the Rome Statute, which upholds any immunity customary under international law. According to South Africa's representative, the country's leadership believed Bashir had immunity as the head of state of Sudan.
The Court has yet to decide if South Africa flouted its obligations as a member of the ICC, and if so, what action should be taken. It is important to note that the ICC's ability to function is undermined when its signatories refuse to cooperate or threaten to leave as South Africa did earlier this year. Therefore, whatever outcome the Court decides to pursue, it could leave a lasting precedent for similar cases that may arise in the future.