South Africa faces the International Criminal Court… and gets its way

U.S. Navy photo by Mass Communication Specialist 2nd Class Jesse B. Awalt

The International Criminal Court (ICC) was established in 1998 by the Statute of Rome. It is the highest court of criminal cases in international law. Its constraints are numerous and its ability to act depends on state cooperation. What happened recently in South Africa highlights once again the importance of said cooperation between states and the ICC.

Map of Darfur [Wikipedia]

Map of Darfur [Wikipedia]

Omar Al Bashir, President of Sudan, was re-elected last April with 94 per cent of the votes, and is accused of committing crimes under international law in Darfur. He is charged with genocide, crimes against humanity and war crimes. Genocide is the intentional destruction of specific communities through murder and psychological harm; crimes against humanity include murder, extermination, deportation, torture and rape; and war crimes include looting and intentional attacks on civilians.

Obligation to cooperate

Between 2009 and 2010, Omar Al Bashir received arrest warrants issued by the prosecutor at the International Criminal Court. In June 2015 he travelled to Johannesburg, South Africa, to take part in an African Union summit along with fellow African leaders. The High Court of Pretoria issued an order to prevent Al Bashir from leaving the country, effectively calling for his arrest. This was triggered by an action initiated by the Center for Southern African Litigation, an association of human rights defenders.

Even though South Africa is bound by its international obligations to arrest Mr Al Bashir and send him to the ICC in The Hague, South African President Jacob Zuma was himself against the warrant and allowed the President of Sudan to leave his country through a presidential decree once the summit was over.

At this stage it must be pointed out that the International Criminal Court acts a last resort tribunal. Only in the case that a state should not want to conduct the trial or should have no jurisdiction over it, is the ICC entitled to take over the case.

Article 12 of the Statute of Rome establishes that South Africa does not have jurisdiction over Al Bashir’s charges, as the crimes were neither committed in South African territory nor is Mr Al Bashir a South African national. Therefore, South African authorities should have arrested the defendant and sent him to The Hague for trial.


Refugees, Sam Ouandja, 2004 [Photo: Hdptcar via Flickr]

Arrest procedure

Article 59 of the Statute of Rome sets out a specific procedure that states party to the statute must follow if a defendant should find itself in its territory. The procedure which should have been followed by South Africa can be summed up as follows:

  • The state receiving a provisional arrest request shall take steps immediately to guarantee the person’s arrest.
  • The defendant is to be brought before the relevant national judicial authority. This authority must determine whether the warrant is applicable under national law and whether the defendant’s rights have been respected while carrying out the arrest.
  • Once the state has done this, the defendant must be sent to the Court as soon as possible if the state has no competence.

Does the ICC only prosecute African leaders?

Controversially enough, all cases having led to prosecution and the start of judicial proceedings and having been initiated by a complaint have been related to nationals of African countries. The 22 cases under investigation by the Prosecutor of the ICC took place in Africa. The African Union’s position, as well as that of many of its leaders, including South African President Jacob Zuma, is therefore that the ICC only ever examines African cases.

International Criminal Court investigations. Updated to January 2011

International Criminal Court investigations. Updated to January 2011

Many cases in earlier stages (i.e. preliminary examination) affect other regions of the world, including Palestine, Honduras, Ukraine, Iraq, Afghanistan, Colombia and Georgia. This stage includes verifying whether the requirements have been met for the Court to exercise jurisdiction over these cases, but in no way entails the opening of formal prosecution proceedings. None of them have, as of writing, advanced to the prosecution stage, as many African cases have.

This raises controversy over the fact of whether the ICC enjoys full independence from the states which are party to it. It also raises the issue of dependence on international political events. It is clear that many human rights violations occur outside of Africa on a daily basis. Nevertheless, no senior political figure from outside of Africa has ever been tried or convicted at the ICC.

In order to prove its independence and objectivity, the ICC ought to become human rights-oriented and should attempt to prosecute senior human rights violators who are not African, to establish its international character.

This is a non-profit explanation

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