Abstract
The International Criminal Court was established to assist states in putting an end to the era of impunity. 13 years later and many African countries are falling short of complying with their obligations under the Rome Statute. African states are furthermore blatantly ignoring orders of cooperation with the ICC, keeping the notion of impunity very much alive on the continent. Tensions between the ICC and the African continent reached a breaking point when the court issued an arrest warrant for the Sudanese President, Omar Al Bashir. President Bashir is wanted by the court for crimes against humanity, war crimes and genocide. Despite the arrest warrants, President Bashir has managed to travel comfortably in the African continent without being arrested.
South Africa is one of the few countries which have translated their obligations in terms of the Rome Statute into domestic legislation: Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002. In terms of this piece of legislation South Africa had a duty to not only cooperate with the ICC but also to arrest President Bashir if he entered the country. In blatant disregard of these obligations South Africa invited President Bashir to attend the 2015 AU summit held in Johannesburg and additionally assured that his immunity would be respected.
As a head of state, President Bashir, would normally have enjoyed criminal immunity. However as a result of the international crimes he has committed, President Bashir’s immunity is invalid before an international court, such as the ICC. Furthermore, all member states of the Rome Statute are obliged to cooperate with the ICC, irrespective of their membership to the African Union. As a result of South Africa’s Implementation of the Rome Statute of the International Criminal Court Act, South Africa cannot in any way escape its obligations to arrest and surrender President Bashir and yet it did just that.
LL.M. (International Law)