Washington International Law Journal


President Al Bashir has avoided the International Criminal Court (“ICC”) for seven years and has been able to travel to both states that are party to the Rome Statute and states that are not without any consequences. The existence of customary international law immunities makes it difficult for the ICC to be able to discharge its duties without the cooperation of states parties. The silence of the Security Council and its failure to clarify Security Council Resolution 1593 (2005) on whether the resolution indeed removes Sudan’s immunities in order for President Al Bashir to be arrested and surrendered to the ICC equally makes the ICC’s job difficult. This article examines whether there is a justification for South Africa’s failure to abide by its obligations under the Rome Statute when it did not secure and arrest President Al Bashir. This will be done against the backdrop of the ICC decisions on the obligations of states parties to the Rome Statute to cooperate. The article also analyzes the South African High Court and the Supreme Court of Appeal judgments with regard to South Africa’s domestic and international obligations.

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