By Benjamin Dürr
A few days before the ICC begins its summer recess at the end of July, the three judges of pre-trial chamber 1 will hand down a major decision in one of the court’s most important cases.
On Thursday afternoon, the judges rule on whether South Africa had an obligation to arrest Sudanese President Omar al-Bashir when he attended an international summit in Johannesburg in 2015 (IJT-184). The decision could have major legal and political consequences.
Bashir, who is wanted by the ICC for genocide, crimes against humanity and war crimes in Darfur, has been travelling to various countries but authorities have so far refrained from arresting him. Under international law, heads of states enjoy immunity from prosecution, but article 27 of the ICC’s founding treaty removes these exemptions.
ICC to rule on immunity of Bashir
Since Sudan is not a member state and the United Nations Security Council did not explicitly lift immunities when it referred the situation to the court, it is far from clear whether the removal of immunites applies in this case, legal scholars have pointed out. South Africa has argued Bashir could not have been arrested because he still enjoys immunity.
The pre-trial chamber will decide whether South Africa had an obligation under international law to arrest and surrender president Bashir. If the judges find that there was indeed an obligation, they can refer the matter to the Assembly of States Parties (ASP) or the Security Council which can then decide to take further steps, including the application of sanctions against South Africa.
The decision could not only influence the extent to which states are able and willing to cooperate with the court. It could, more generally, shape the discussion of immunities in international law.
Political implications of Bashir ruling
As the debate about Bashir’s escape was heating up last year, the South African government decided to leave the Rome Statute. While such a withdrawal does not apply retroactively and, therefore, has no legal consequences for the case, it was seen as a clear sign of South Africa distancing itself from the court.
In the meantime, the government backtracked from the withdrawal. As recently as this week, however, the ruling party African National Congress (ANC) said during a major policy conference it would still intend to leave the ICC.
A decision of the judges on Thursday confirming South Africa’s failure to comply with international law could drive the government even more into a corner, lead to more hostility and an accelerated second attempt to withdraw.
ICC experts suggested the court could find a compromise to ease tensions. “It is possible, and what many hope, is that the decision will show some degree of understanding, and perhaps lenience towards South Africa,” Mark Kersten of the University of Toronto told news agency AFP.
Whichever way the court will handle the Bashir row is likely to impact on the development of international law and the courts relation with its member states.
Photo: South African President Jacob Zuma meets Omar al-Bashir on a 2015 visit to Sudan (Flickr/GovernmentZA)
Benjamin Dürr is a legal analyst and expert in international crimes working in The Hague.
This piece was originally published by the International Justice Tribune and is republished here with permission.