Sudanese President, Omar Al-Bashir. Photo: he.m.wikipedia.org via Bing (CC).
Sudanese President, Omar Al-Bashir. Photo: he.m.wikipedia.org via Bing (CC).

ICC TC finds South Africa in non-compliance but will not refer to UNSC / ASP:  On 6 July 2017, the ICC Pre-Trial Chamber issued a unanimous decision on South Africa’s compliance with the Rome Statute as a result of Sudanese President Omar Al-Bashir’s visit to the country in June 2015, and South Africa’s failure to arrest Al-Bashir during his visit.  The Pre-Trial Chamber decided that South Africa failed to comply with its obligations as a State Party to the Rome Statute by not arresting Al-Bashir, but decided to refrain from referring South Africa’s non-compliance to the UN Security Council and Assembly of States Parties.  The Chamber addressed the issue of head of state immunity in its decision, finding that because the Sudan situation was referred to the Court by the UN Security Council, Sudan is in the same position as a State Party, and therefore head of state immunity under customary international law do not apply.  It similarly found that the Host Agreement for the African Union Summit, under which Al-Bashir was invited to the Summit, is not applicable when an ICC warrant is outstanding.   For this reason, it found that State Parties, i.e. South African, are under an obligation to execute an arrest warrant for an individual who is present on its territory, and South Africa failed to uphold this obligation.  The Pre-Trial Chamber, however, found that referral was unnecessary as it is unnecessary to achieve cooperation from South Africa where its domestic courts have already made a finding against the Government’s actions in this case, and as a result of South Africa’s efforts to obtain a legal determination from the Court on its obligations.  Although the decision was unanimous Marc Perrin de Brichambaut issue an independent opinion. (ICC Press Release)