ICC finding on South Africa's non-compliance falls short
The Southern Africa Litigation Centre (SALC) welcomes the ruling from the Pre-Trial Chamber of the International Criminal Court (ICC) but is surprised that the ICC did not refer South Africa to the United Nations Security Council (UNSC) or the Assembly of State Parties for its failure to arrest Sudan’s President, Omar al-Bashir.
Yesterday (6 July 2017) the Pre-Trial Chamber of the ICC ruled that South Africa had international obligations to arrest President al-Bashir and failed to do so. The ICC found unanimously that South Africa failed to comply with its obligations, contrary to the provisions of the Rome Statute. They did not however make a referral to either the Assembly of State Parties to the Rome Statute, or to the UNSC. “We understand and respect the bold decision of the court who have made a strong finding that South Africa failed to comply with its international obligations. We are however surprised by the court’s decision not to refer South Africa to the UNSC,” says Kaajal Ramjathan-Keogh, Executive Director of the SALC.
In its finding, the ICC stated that by failing to arrest al-Bashir, South Africa had reneged on its duty to comply with the court’s request, preventing it from exercising its functions and powers. However, the court rejected South Africa’s submission that as a sitting head of state, al-Bashir had immunity under customary international law, stating that Article 27.2 of the Rome Statute precluded such immunity. The ICC also recognised that South Africa’s Supreme Court of Appeal made a strong finding against the South African government. Therefore, in the spirit of complementarity, the ICC did not take an overly harsh position on South Africa.
“We are disappointed in the ICC’s decision not to impose a sufficiently harsh penalty against South Africa for its non-compliance. Whilst it found that the government of South Africa has accepted the obligation to co-operate with the ICC under its domestic legal framework, in reality this remains unconfirmed,” says Ramjathan-Keogh.
The ICC found that referring South Africa’s non-compliance would not be an effective way to foster future co-operation. Previous state party referrals have yielded no penalties and have not encouraged states to co-operate. “It is frustrating that there has never been any penalty or sanction emanating as a result of these referrals from either the Assembly of State Parties or the UNSC. This points to the failure of the referral as an enforcement mechanism,” says Ramjathan-Keogh.