ICC Finds South Africa Guilty Of Not Arresting Omar Al-Bashir: 5 Striking Facts


ICC Finds South Africa Guilty: The International Criminal Court, on Thursday, found South Africa guilty of not arresting the President of Sudan Omar Hassan Ahmad al-Bashir.

In 2015, South Africa ignored an order by North Gauteng High Court, Pretoria, directing it to arrest and detain Bashir.

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The Sudanese president, at the time, was on South Africa’s territory between June 13-15 – precisely in Johannesburg – where he attended an African Union summit.

Here’s What You Need To Know

South Africa will not be referred to the Assembly of  States Parties

Despite ruling that South Africa failed to arrest Bashir, the ICC said it will not refer the country to the Assembly of State Parties or Security Councils in the present circumstances.

The Criminal Court said this is because South African courts had already censured the South African government for its failure to arrest Bashir.

In addition, Presiding Judge Cuno Tarfusser noted in a summary of the ruling that past referrals of countries to the Security Council for noncompliance were ‘futile’ in terms of leading to further action and also ‘not an effective way to obtain cooperation’ with the ICC.

The Assembly of States Parties is the ICC’s management oversight and legislative body. It is made up of representatives of the States which have ratified or acceded to the Rome Statute.

ICC rejected South Africa’s argument on why it did not arrest Bashir

South Africa had consistently argued that it did not arrest Bashir because heads of state who attended the African Union Summit enjoyed diplomatic immunity. But the ICC rejected the argument on Thursday – as expected- before it handed down the damning ruling.

ICC judges maintained that heads of state or government fall under the authority of the law court whether they are at home or abroad.

The ICC’s decision not to refer South Africa might be a way of preventing it from leaving ICC.

Though the Hague-based court did not clearly spell this out, many respondents believe that the decision not to refer South Africa is a way to keep the country as a member of the court.

ICC expert and legal scholar Mark Kersten told reporters: “I believe the ruling will raise the costs of withdrawal for South African President Jacob Zuma.”

In 2016, South Africa filed a formal withdrawal process but the move was halted by the North Gauteng High Court in March. The Court ruled that the ANC-led government did not get Parliament’s approval on the matter before taking the decision to leave.

ANC’s subcommittee on international relations reportedly declared that the party’s decision that South Africa should withdraw from the ICC still stands, although consultations on the matter are ongoing.

Sometime in January, at AU Summit, members of the African Union adopted by consensus a strategy for mass withdrawal from the ICC over a perceived bias by prosecutors in focusing on African conflicts.

Kenya, Namibia, Burundi have threatened to ditch the ICC. Gambia was the last country that left the International Criminal Court, precisely in October 2016 – just days after the similar decision was taken by Burundi.

The case against Bashir was lodged by the Security Council

In 2005, the Security Council asked the ICC to launch an investigation into the crimes in Darfur, where at least 300,000 people have died and 2.5 million displaced since ethnic minorities took to the battlefield against Bashir’s Arab-dominated government.

After thorough investigations, the ICC issued two international arrest warrants in 2009 and 2010 against Bashir.

He has, however, remained at large and in office as the conflict continues to rage in Darfur, denying all the charges brought against him. Bashir was elected the President of Sudan in 1993.

Sudan is not a member of the ICC, the court has jurisdiction by virtue of a 2005 UN Security Council resolution referring the conflict to the Hague-based permanent war crimes court.


Africa regional director for the International Commission of Jurists Arnold Tsunga has expressed satisfaction with Thursday’s ruling. He simply defined it as “a victory for international justice”.

South African Ambassador at ICC Bruce Koloane welcomed the ruling, adding that South Africa is still a member effectively of the ICC, “we still have to honor all our obligations.”

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Parliament’s chair on international relations committee Siphosezwe Masango said he’s convinced South Africa did the right thing by not arresting ‘a sitting head of state’.

The ANC in response said it will study the judgment despite some local entities urging it to withdraw from the international body.

The South African Litigation Centre said they are not surprised that the ICC found South Africa guilty.