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Prosecutor v. Al-Bashir

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Prosecutor v. Al-Bashir, ICC-02/05-01/09-302, Decision Under Article 87(7) of the Rome Statute on the Non-compliance by South Africa with the Request by the Court for the Arrest and Surrender of Omar Al-Bashir. Athttps://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-02/05-01/09-302. International Criminal Court, Pre-Trial Chamber II, July 6, 2017.

Published online by Cambridge University Press:  13 February 2018

Manuel J. Ventura
Manuel J. Ventura*
Affiliation:
Western Sydney UniversitySpecial Tribunal for Lebanon*
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Extract

On July 6, 2017, Pre-Trial Chamber II of the International Criminal Court (the Court or ICC)—composed of Judges Tarfusser, Perrin de Brichambaut, and Chung—held that South Africa violated the Rome Statute of the ICC (Rome Statute) by failing to arrest and surrender to the Court President Omar Al-Bashir of Sudan when he visited the country in June 2015. However, the Court did not refer the matter to the ICC Assembly of States Parties (ASP) or the United Nations Security Council (UNSC) pursuant to Article 87(7) of the Rome Statute. The decision added South Africa to a list of ICC state parties that have failed in their Rome Statute obligations with respect to the incumbent head of state of Sudan. It also marked the first time that the ICC Office of the Prosecutor (OTP), all ICC states parties, and the United Nations (UN) were invited to present their views and argue fully what is perhaps the most legally contentious and politically sensitive issue that the ICC has faced in its history.

Keywords

International Criminal CourtUnited Nations Security Council referralSudanincumbent head of statepersonal immunityRome Statute of the International Criminal Courtstate partySouth Africastate cooperationarrest and surrendernon-compliance
Type
International Decisions: Edited by Ingrid Wuerth
Information
American Journal of International Law , Volume 111 , Issue 4 , October 2017 , pp. 1007 - 1013
Copyright
Copyright © 2018 by The American Society of International Law 

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References

1 Prosecutor v. Al-Bashir, ICC-02/05-01/09-302, Decision Under Article 87(7) of the Rome Statute on the Non-compliance by South Africa with the Request by the Court for the Arrest and Surrender of Omar Al-Bashir (July 6, 2017) [hereinafter Decision].

2 See Prosecutor v. Al Bashir, ICC-02/05-01/09-274, Decision Convening a Hearing for the Purposes of a Determination Under Article 87(7) of the Statute with Respect to the Republic of South Africa (Dec. 8, 2016).

3 Prosecutor v. Al Bashir, ICC-02/05-01/09-3, Decision on the Prosecution's Application for a Warrant of Arrest Against Omar Hassan Ahmad Al Bashir (Mar. 4, 2009); Prosecutor v. Al Bashir, ICC-02/05-01/09-94, Second Decision on the Prosecution's Application for a Warrant of Arrest (July 12, 2010).

4 Rome Statute of the International Criminal Court, Art. 27(2), July 17, 1998, 2187 UNTS 3 (entered into force July 1, 2002) (“Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.”).

5 Id. Art. 98(1) (“The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.”).

6 Prosecutor v. Al-Bashir, ICC-02/05-01/09-302, Decision Under Article 87(7) of the Rome Statute on the Non-compliance by South Africa with the Request by the Court for the Arrest and Surrender of Omar Al-Bashir – Minority Opinion of Judge Marc Perrin de Brichambaut (July 6, 2017) [hereinafter Minority Opinion].

7 Convention on the Prevention and Punishment of the Crime of Genocide, Art. VI, Dec. 9, 1948, 78 UNTS 277 (entered into force Jan. 12, 1951) (“Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.”).

8 Id. Art. IV (“Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.”).

9 Prosecutor v. Al Bashir, ICC-02/05-01/09-139-Corr, Corrigendum to the Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir (Dec. 13, 2011); Prosecutor v. Al Bashir, ICC-02/05-01/09-140-tENG, Decision Pursuant to Article 87(7) of the Rome Statute on the Refusal of the Republic of Chad to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir (Dec. 13, 2011).

10 See Prosecutor v. Al Bashir, ICC-02/05-01/09-195, Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir's Arrest and Surrender to the Court (Apr. 9, 2014); Prosecutor v. Al Bashir, ICC-02/05-01/09/242, Decision Following the Prosecutor's Request for an Order Further Clarifying that the Republic of South Africa is Under the Obligation to Immediately Arrest and Surrender Omar Al Bashir (June 13, 2015); Prosecutor v. Al Bashir, ICC-02/05-01/09-266, Decision on the Non-compliance by the Republic of Djibouti with the Request to Arrest and Surrender Omar Al-Bashir to the Court and Referring the Matter to the United Nations Security Council and the Assembly of the State Parties to the Rome Statute (July 11, 2016); Prosecutor v. Al Bashir, ICC-02/05-01/09-267, Decision on the Non-compliance by the Republic of Uganda with the Request to Arrest and Surrender Omar Al-Bashir to the Court and Referring the Matter to the United Nations Security Council and the Assembly of State Parties to the Rome Statute (July 11, 2016).

11 See R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet (No. 3), 1 A.C. 147, at 289 (per Lord Phillips) (finding that Article IV of the Genocide Convention constituted a waiver by states of personal immunity—such as that enjoyed by incumbent heads of state).

12 See Prosecutor v. Al Bashir, ICC-02/05-01/09-73, Judgment on the Appeal of the Prosecutor Against the “Decision on the Prosecution's Application for a Warrant of Arrest Against Omar Hassan Ahmad Al Bashir” (Feb. 3, 2008).

13 Minister of Justice and Constitutional Development and Others v. Southern Africa Litigation Centre 2016 (3) SA 317 (SCA) (S. Afr.).

14 Since the writing of this case note, Pre-Trial Chamber II issued a decision finding that Jordan violated the Rome Statute by failing to arrest and surrender President Al-Bashir to the ICC during his March 2017 visit to Amman and referred Jordan to the ICC ASP and the UNSC. The reasoning concerning President Al-Bashir's immunity mirrored that of the present Decision: Judges Tarfusser and Chung found that Sudan is analogous to an ICC state party and Judge Perrin de Brichambaut, in a minority opinion, reiterated his Genocide Convention position. See Prosecutor v. Al Bashir, ICC-02/05-01/09-309, Decision Under Article 87(7) of the Rome Statute on the Non-compliance by Jordan with the Request by the Court for the Arrest and Surrender of Omar Al-Bashir (Dec. 11, 2017); Prosecutor v. Al Bashir, ICC-02/05-01/09-309-Anx-tENG, Decision Under Article 87(7) of the Rome Statute on the Non-compliance by Jordan with the Request by the Court for the Arrest and Surrender of Omar Al-Bashir – Minority Opinion of Judge Marc Perrin de Brichambaut (Dec. 11, 2017).Jordan subsequently communicated its intention to appeal the decision to the ICC Appeals Chamber, to which the ICC OTP only partially objects: Prosecutor v. Al Bashir, ICC-02/05-01/09-312, The Hashemite Kingdom of Jordan's Notice of Appeal of the Decision Under Article 87(7) of the Rome Statute on the Non-compliance by Jordan with the Request by the Court for the Arrest and Surrender of Omar Al-Bashir; or, in the Alternative, Leave to Seek Such an Appeal (Dec. 18, 2017); Prosecutor v. Al Bashir, ICC-02/05-01/09-313, Prosecution's Response to the Hashemite Kingdom of Jordan's Notice of Appeal Against the Article 87(7) Decision, or in the Alternative, Application for Leave to Appeal the Decision Under Article 82(1)(d) (Dec. 21, 2017). Therefore, the ICC Appeals Chamber appears to be on the brink of being seized with the issue of President Al-Bashir's immunity.