The ICC Pre-Trial Chamber’s Decision on South Africa’s Failure to Arrest and Surrender President Al Bashir: South Africa Escapes ‘Sanctions’!

Authors Ntombizozuko Dyani-Mhango

ISSN: 2521-2621
Affiliations: University of the Witwatersrand
Source: African Yearbook on International Humanitarian Law, 2017, p. 37 – 77


This article examines the South Africa Decision and the reasons of the Pre-Trial Chamber (‘PTC’) of the International Criminal Court (‘ICC’) for refusing to refer South Africa to the Security Council and/or the Assembly of States Parties (‘ASP’) after it was found to have failed to arrest and surrender President Al Bashir to the ICC in order to understand the PTC’s reasoning. The article therefore examines the South Africa Decision with a view to understand the PTC’s reasoning in contrast to its previous decisions and to examine the provisions of the Rome Statute on referrals and the consequences thereof. Further, since the provisions of the Rome Statute do not stipulate measures to be taken by the Security Council and the ASP against the states that fail to cooperate with the ICC requests, the article will also analyze the role played by the Security Council and the ASP in relation to the PTC referrals. The article argues that the PTC clarified its position on the obligations of states parties in relation to the arrest and surrender of a sitting Head of State not party to the Rome Statute in its finding. In addition, it argues that South Africa was in a unique and exceptional position, hence it escaped the referral to the ASP and/or the Security Council.