An Analysis of United Nations Charter Obligations and Security Council Chapter VII Referrals to the International Criminal Court against the Backdrop of Al-Bashir

Authors CF Swanepoel

ISSN: 1996-2193
Affiliations: Department of Public Law, Faculty of Law, University of the Free State
Source: Stellenbosch Law Review, Volume 29 Issue 2, 2018, p. 161 – 173


Against the backdrop of the International Criminal Court’s ("ICC") July 2017 judgment in the matter concerning South Africa’s now infamous failure to cooperate with the court and arrest Sudanese head of state Omar Al-Bashir when he visited the country in 2015, this contribution analyses United Nations ("UN") member states’ obligations in the event of a United Nations Security Council ("UNSC") chapter VII referral to the ICC. This occurs by way of a parallel study of case law and literature. The research shares observations on the relationship between the UNSC and the ICC, the UN’s institutional mandate with reference to the ICC, as well as article 98 of the Rome Statute. It is then concluded that UNSC Resolution 1593 — which referred the Sudanese situation to the ICC, and was the first referral of its kind — and the subsequent judgment, mark a significant step forward in terms of clarifying the legal status of chapter VII referrals to the ICC, defining member states’ obligations and generally advancing a credible international justice system. The judgment has also brought much-needed clarity about the perceived tension between articles 27 and 98 of the Rome Statute, as alluded to by the South African Supreme Court of Appeal in its 2016 judgment on the same matter.