Prosecutor v. Al Bashir

The International Criminal Court (ICC) issued a warrant for the arrest and surrender of Omar al-Bashir (defendant), the president of Sudan, for alleged war crimes, crimes against humanity, and genocide. The Rome Statute (statute), the multinational treaty establishing the ICC, provided that heads of state were not exempt from criminal prosecution, and diplomatic immunities would not bar the ICC from exercising its jurisdiction over heads of state. The statute also required states that had signed on to the statute to comply with the ICC’s requests for surrender or arrest; however, the ICC could not proceed with a request for surrender if doing so would require the requested country to act inconsistently with its obligations under international agreements with respect to diplomatic immunity. South Africa was a party to the statute but failed to arrest al-Bashir during his visit there in June 2015 while the ICC’s warrant was active. South Africa claimed that al-Bashir had immunity due to customary international law, which prevented countries from exercising criminal jurisdiction against other countries’ heads of state, especially because Sudan was not itself a party to the statute and had not agreed to its terms. The ICC prosecutor argued that the ICC had jurisdiction over al-Bashir because the United Nations Security Council had referred the case to the ICC and Sudan was a party to the United Nations Charter. The ICC issued an opinion addressing South Africa’s noncompliance with the statute.