3 July, 2017

On 6 July 2017, the International Criminal Court (ICC) will hand down a finding in respect of South Africa’s failure to arrest President Omar Al Bashir when he attended an African Union Summit in South Africa in June 2015.

On 7 April 2017, South Africa appeared before the Pre-Trial Chamber of the ICC to argue that the Chamber should not make a finding of non-compliance against the country in regard to Al Bashir’s 2015 visit. In its submissions to the Chamber, the Southern Africa Litigation Centre (SALC) argued that South Africa had clear domestic and international legal obligations to arrest and surrender President Al Bashir to the ICC.

In December 2016, the ICC issued a decision to convene a public hearing under Article 87(7) of the Rome Statute to discuss issues relevant to its determination of whether to make a finding of non-compliance by South Africa. To this end, the ICC invited South Africa to make written and oral submissions. The hearing took place in The Hague on 7 April 2017. The Chamber is expected to determine the following issues:

  • Whether South Africa failed to comply with its obligation under the Rome Statute by not arresting and surrendering President Al Bashir to the ICC while he was on South African territory despite having received a request by the Court for his arrest and surrender; and if so
  • Whether a finding of non-compliance by South Africa and referral of the matter to the Assembly of State Parties to the Rome Statute and/or the United Nations Security Council are warranted.

In March 2005, the United Nations Security Council adopted a resolution to refer the situation of Darfur to the Prosecutor of the ICC. In March 2009 and July 2010, respectively, the ICC issued two warrants of arrest against President Al Bashir of Sudan for war crimes, crimes against humanity and genocide committed in Darfur. President Al Bashir is the first sitting President to be indicted by the ICC, and the first person to be charged by the ICC for the crime of genocide. Neither of the two warrants of arrest against him have been enforced.

SALC was admitted to make amicus curiaesubmissions before the Chamber despite vigorous opposition by the South African government, who argued that SALC is not a neutral party and that such submissions should focus only on points of international law. This despite the fact that SALC had brought the urgent application in June 2015 to have President Al Bashir arrested and has in-depth and factual knowledge of the case.

Despite government’s objection, SALC was admitted to make submissions before the Chamber. In its submissions SALC argued that South Africa had clear domestic and international legal obligations to arrest and surrender President Al Bashir to the ICC when he visited the country between 13 and 15 June 2015. SALC argued that the facts show that South Africa flouted its obligations by actively facilitating President Bashir’s escape, or, at minimum, by failing to comply with its duty to arrest and surrender him to the ICC. SALC also argued that various government departments appear to have colluded to facilitate the departure of President Al Bashir from South Africa: The Ministers responsible for DIRCO, Home Affairs and SAPS were parties in the High Court proceedings. Had these Ministers wanted to ensure compliance with the interim court order, which sought to prevent Al Bashir’s departure while the matter was being heard, they could have taken steps to inform their officials, in whose care the Sudanese delegation was entrusted.

How is the ICC likely to find? And what are the implications of such findings? 
It is almost certain that the ICC will find that South Africa failed to cooperate with the ICC. However, it is uncertain whether there will be a referral to the Assembly of State Parties to the Rome Statute (ASP) and/or to the United Nations Security Council (UNSC). The ASP is well placed to address the lack of cooperation and could provide an incentive for South Africa to cooperate with the Court in the future. However, it is uncertain whether South Africa will remain with the ICC. It may well be that South Africa is awaiting the outcome of the process to determine whether to start afresh its withdrawal process. In the circumstances, which include a real threat of withdrawal by South Africa, and while acknowledging that the ICC also has its own shortcomings, the referral remains the only enforcement measure available to the Chamber.
In September 2016, the Trial Chamber issued a decision against Kenya for its failure to comply with its obligations to cooperate with the ICC and referred the matter to the ASP.  The Chamber’s referral of Kenya to the ASP did not cause the Kenyan Government to change its position on the ICC. The question remains whether the same holds true for South Africa.

To arrange media interviews 

Melanie Judge;; +27 83 2712543

Additional information

The submissions from SALC, the Office of the Prosecutor, the South African government as well as correspondence and decisions from the Pre-Trial Chamber are available here:

For details on the litigation process in South Africa