ICC pre-trial chamber to meet on South Africa’s non-arrest of Al-Bashir

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The Prosecutor for the International Criminal Court repeated her call for States to arrest and surrender the suspects of alleged genocide, war crimes and crimes against humanity committed in the Darfur region of Sudan, including President Omar Al Bashir.

“Not one of the suspects for who warrants have been issued has been arrested and transferred to the International Criminal Court,” ICC Prosecutor Fatou Bensouda told the United Nations Security Council. In remarks directed at the victims and their families she said “to those who continue to long for justice in Darfur; do not despair and do not abandon hope.”

She recalled international tribunals for Rwanda and the former Yugoslavia were reminders that persistence and determination could result in the arrest and surrender of suspects many years after arrest warrants had been issued.

The Court was established by the Rome Statute adopted at an international conference in Rome on July 17, 1998. It entered into force on July 1, 2002.
“The States that form this Council have the power, independently and collectively, to positively influence and incentivise States, whether or not parties to the Rome Statute, to assist in efforts to arrest and surrender the Darfur suspects,” she said, adding regional organisations can do the same.

The prosecutor said there have been alleged cases of non-compliance by the parties to the treaty.

She said a pre-trial chamber of the Court plans to decide whether South Africa acted in non-compliance with the Statute when it failed to arrest and surrender Al Bashir in June 2015. Most recently he travelled to Jordan in March this year but that country declined to arrest and surrender him.
“Inviting, facilitating or supporting the international travel of any person subject to an ICC arrest warrant is inconsistent with a commitment to international criminal justice,” she said. “It is also an affront to the victims in the Darfur situation.”

Bensouda said to date the Court had made 13 decisions on non-compliance and referred them to the Security Council.
“Yet not one has been acted upon by this Council. By failing to act in response to such decisions, this Council is in essence relinquishing and undermining its clear role on such matters” arising from the Rome Statute and the Council’s resolution 1593 (2005), which referred the Darfur situation to the body.



In 2005, the Council asked the Hague-based Court to investigate war crimes in Darfur. ICC judges issued arrest warrants in 2009 for Al-Bashir and other top officials for genocide, crimes against humanity and war crimes in western Darfur, where up to 300,000 people may have died and millions have been displaced since civil war erupted in 2003 between the government and rebels.