The International Criminal Court (ICC) has ruled South Africa failed to fulfill its obligations as member of the court when the government did not act on the ICC arrest warrants for Sudan’s president when he visited South Africa in 2015.

The three judges comprising Pre-Trial Chamber II unanimously decided on Thursday, July 6, not to refer the matter to either the United Nations Security Council or the ICC’s membership. Article 87 of the ICC’s founding law, the Rome Statute, provides for the court to refer a member state to the wider membership or the Security Council for not cooperating with the court.

The chamber was making a decision on the two-year old matter now because it decided to wait until a similar case before South Africa’s judiciary concluded. In November last year, South Africa notified the ICC that the case before the South African judiciary had ended.

One reason the judges gave for deciding not to refer South Africa was that neither the Security Council nor the Assembly of States Parties have acted on previous ICC decisions referring other countries for failing to act on the arrest warrants for the Sudanese president.

“In addition, the Chamber observes that states parties have been referred to both the Assembly of States Parties and the United Nations Security Council in six instances in relation to failures to arrest and surrender Omar Al-Bashir,” said Presiding Judge Cuno Tarfusser, who read the decision on behalf of the other judges.

“However, the past 24 meetings of the Security Council of the United Nations following the adoption of Resolution 1593, including meetings held on the occasion of the biannual reports made by the prosecutor to the Security Council of the United Nations, have not resulted in measures against states parties that have failed to comply with their obligations to cooperate with the court, despite proposals from different states to develop a follow-up mechanism concerning the referral of states to the Security Council by the Court,” continued Judge Tarfusser.

The judges of Pre-Trial Chamber II unanimously agreed South Africa was wrong in arguing the government could not arrest al-Bashir because he has immunity under customary international law. The judges also unanimously agreed South Africa was wrong in arguing it could not arrest al-Bashir because he was in South Africa at the time to attend a heads of state meeting of the Africa Union and therefore he had immunity.

What the judges did not agree on was why al-Bashir did not enjoy immunity. The majority of Pre-Trial Chamber II ruled al-Bashir did not have immunity from the ICC arrest warrants because there is no provision for such immunity in the Rome Statute.

Judge Tarfusser and Judge Chang-ho Chung noted Sudan was not a member of the ICC but said the provisions of the Rome Statute applied in this case because al-Bashir is being sought in connection with atrocities committed in Darfur that were referred to the ICC by the Security Council.

“The chamber finds, by majority, that the necessary effect of the Security Council resolution triggering the court’s jurisdiction in the situation in Darfur and imposing on Sudan the obligation to cooperate fully with the court, is that, for the limited purpose of the situation in Darfur, Sudan has rights and duties analogous to those of states parties to the statute,” said Judge Tarfusser.

“It is acknowledged that this is an expansion of the applicability of an international treaty to a state which has not voluntarily accepted it as such. Nonetheless, the finding of the majority of the chamber in this respect is in line with the Charter of the United Nations, which permits the Security Council to impose obligations on states,” said Judge Tarfusser.

“It may be emphasized that Sudan’s rights and obligations are only those related to the situation in Darfur as referred by the Security Council and strictly within the parameters of the situation,” said Tarfusser.

Judge Marc Perrin de Brichambaut said in his minority opinion* that al-Bashir did not have immunity because Sudan and South Africa have ratified the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which does not provide immunity for anyone who may be prosecuted for the crime of genocide.

Judge de Brichambaut said this is relevant because the second ICC arrest warrant against al-Bashir was issued for his alleged role in genocide committed in the western region of Darfur between 2003 and 2008. This arrest warrant was issued in 2010. The first arrest warrant against al-Bashir was issued in 2009 for his alleged role in war crimes and crimes against humanity committed in Darfur.

“In my view, the combined effect of a literal and a contextual interpretation of Article 4 of the Convention on Genocide along with an analysis of the objective and goal of the treaty leads to the conclusion that when state officials must respond to genocide allegations they do not enjoy personal immunity. Under the provision of Article 6 of the Convention these immunities are lifted at the beginning of proceedings, I quote, ‘before an international criminal court’,” said Judge de Brichambaut.

“Given that personal immunity is incompatible with the obligations of state parties to the Convention on Genocide, Sudan must be deemed to have renounced the immunity of its state officials when it ratified the convention,” said the judge.

“Thus, I think, the full participation of Sudan and South Africa in the Convention on Genocide could have had the effect of lifting the immunity of Omar al-Bashir, obliging the contracting parties of the said convention to arrest him when he is in their territory,” said Judge de Brichambaut.

*The minority opinion of Judge de Brichambaut was not linked to in the original version of this blog.