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Prosecutor v. Al-Bashir
International Criminal Court
Pre-Trial Chamber II (2017)
In 2015, South Africa entered into a host agreement in preparation for an African Union conference, under which heads of state and diplomats were granted certain legal immunities while attending the conference. Omar Al-Bashir (defendant) was among the officials planning to attend. The International Criminal Court (ICC) had previously issued an international arrest warrant for Al-Bashir and imposed onto all states an obligation to arrest Al-Bashir if he appeared on a state’s territory. After South Africa became aware that Al-Bashir planned to attend the conference, South Africa requested to consult with the ICC, pursuant to Article 97 of the Rome Statute, to resolve the conflicting legal obligations of the host agreement and arrest warrant. This was the first time a state had ever invoked the consultation clause in Article 97 for an arrest request. On June 13, before the consultation took place, Al-Bashir entered South Africa. On June 15, Al-Bashir departed from South Africa. In response to South Africa failing to take any measures to arrest Al-Bashir, a domestic lawsuit was filed against the government of South Africa. The South Africa Supreme Court of Appeal held that the government had acted unlawfully by not complying with the ICC’s arrest warrant. Additionally, an ICC prosecutor (plaintiff) requested the ICC to refer South Africa to the Assembly of State Parties to the Rome Statute or the Security Council of the United Nations pursuant to Article 87(7) of the Rome Statute. The ICC previously referred multiple states to these external actors for failing to arrest Al-Bashir, but the referrals did not yield compliance. The ICC considered the request to refer South Africa to the external actors.
Rule of Law
Holding and Reasoning
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