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Prosecutor v. Al-Bashir: Decision Under Article 87(7) of the Rome Statute on the Non-Compliance by South Africa with the Request by the Court for the Arrest and Surrender of Omar Al-Bashir (Int'l Crim. Ct.)

  • Max du Plessis (a1)
Extract

The ICC considered two central questions: First, whether South Africa failed to comply with its obligations under the statute by not arresting and surrendering Al-Bashir to the Court while he was in South African territory despite having received a request from the ICC under Articles 87 and 89 of the Statute for his arrest and surrender. Second, whether a formal finding of noncompliance by South Africa in this respect and referral of the matter to the Assembly of States Parties to the Rome Statute or to the United Nations Security Council are warranted.

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ENDNOTES

1 Prosecutor v. Al-Bashir, Case No. ICC-02/05-01/09, Pre-Trial Chamber II, Decision Under Article 87(7) of the Rome Statute on the Non-compliance by South Africa with the Request by the Court for the Arrest and Surrender of Omar Al-Bashir, ¶ 21 (July 6, 2017) [hereinafter Decision].

2 S.C. Res. 1593 (Mar. 31, 2005).

3 Prosecutor v. Al-Bashir, Case No. ICC-02/05-01/09-1, Pre-Trial Chamber I, Warrant of Arrest for Omar Hassan Ahmad Al Bashir (Mar. 4, 2009); Prosecutor v. Al-Bashir, Case No. ICC-02/05-01/09-95, Pre-Trial Chamber I, Second Warrant of Arrest for Omar Hassam Ahmad Al Bashir (July 12, 2010).

4 Prosecutor v. Al-Bashir, Case No. ICC-02/05-01/09-239-Conf, Pre-Trial Chamber II, Prosecution's Urgent Response to the Registry's Submission Titled “Urgent Request from the Authorities of South Africa” (June 12, 2015).

5 Decision, supra note 1, ¶ 10.

6 Id. ¶ 15.

7 Id. ¶ 139.

8 Southern Africa Litigation Centre v. Minister of Justice and Constitutional Development and Others (27740/2015) [2015] ZAGPPHC 402 (June 24, 2015). See also Minister of Justice and Constitutional Development v. The Southern African Litigation Centre (867/15) [2016] ZASCA 17 (Mar. 15, 2016).

9 Democratic Alliance v. Minister of International Relations and Cooperation and Others (Council for the Advancement of the South African Constitution Intervening) (83145/2016) [2017] ZAGPPHC 53 (Feb. 22, 2017).

10 William A. Schabas, The Banality of International Justice, 11 J. Int'l Crim. Justice 545, 549 (2013).

11 See Max du Plessis & Guenael Mettraux, South Africa's Failed Withdrawal from the Rome Statute, 15 J. Int'l Crim. Justice 361 (2017). For a fuller and more recent discussion, see Max du Plessis, The Omar Al-Bashir Case: Exploring Efforts to Resolve the Tension Between the African Union and the International Criminal Court, in The Pursuit of a Brave New World in International Law: Essays in Honour of John Dugard (Tiyanjana Maluwa, Max du Plessis & Dire Tladi eds., 2017).

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International Legal Materials
  • ISSN: 0020-7829
  • EISSN: 1930-6571
  • URL: /core/journals/international-legal-materials
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