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ICC rules South Africa in breach of the Rome Statute by failing to arrest President Al-Bashir

As widely expected, the ICC today found that South Africa had failed to comply with it's obligations under the Rome Statute through its failure to arrest and surrender Omar Al-Bashir in June 2015. However, a more surprising aspect of the decision is the fact that, in the Court's view, a referral to the Assembly of State Parties or the UN Security Council was not warranted in view of the specifics facts surrounding the case. In this regard, the Chamber reasoned broadly as follows [para. 139]:

"In sum, the Chamber considers of significance that South Africa is the first State Party to seek from the Court a final legal determination on the extent of its obligations to execute a request for arrest and surrender of Omar Al-Bashir. In addition, the Chamber is not convinced that a referral to the Assembly of States Parties and/or the Security Council of the United Nations would be warranted in order to achieve cooperation from South Africa, in light of the fact that South Africa’s domestic courts have already found South Africa to be in breach of its obligations under its domestic legal framework and in light of the resolution of any remaining open matter by virtue of the present decision."

This aspect of the judgment is likely to raise some questions. In light of South Africa's (still) impending threat of withdrawal from the ICC, it has the look of a savvy diplomatic manoeuvre, but could also be justified as a common sense approach to the specific facts of the case.

More analysis of the judgment to follow shortly. In the meantime, the full judgment is available here.

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