On 14 June 2015, the North Gauteng High Court in Pretoria, South Africa, issued an order preventing Sudan President Omar Al Bashir from leaving South Africa. On Monday 15 June, the High Court held a public hearing to decide whether the Government had to execute the arrest warrants against Bashir issued by the International Criminal Court (“ICC”). However, before the High Court gave the ruling to detain him, Bashir had already left South Africa. (See Guardian)

In 2005, the UN Security Council referred the Darfur situation to the ICC (Resolution 1593). In 2009 and 2010, the ICC issued two arrest warrants against Bashir for alleged war crimes, genocide and crimes against humanity during the 2003 Darfur conflict. Despite the arrest warrants, Bashir still travels abroad. Apart from South Africa, he has also visited other State parties to the Rome Statute, including Malawi and the Democratic Republic of the Congo (“DRC”).

When Bashir travels abroad, the problem arises in relation to the obligation of host States to arrest him and surrender him to the ICC. The ICC has decided that Malawi and the DRC failed to cooperate in his arrest and surrender. It is uncertain whether the ICC will make another decision stating that South Africa also failed to cooperate with the ICC. I will argue that these State parties did not fail to comply with the request of the ICC.

State parties to the Rome Statute do indeed have an obligation to cooperate with the ICC. However, they are not obliged to arrest and surrender Bashir to The Hague by simply relying on Article 27(2) of the Rome Statute. Firstly, Bashir still enjoys immunity. As shown, the ICC was authorized with prima facia jurisdiction by the SC Resolution. Since the Head of State immunity is a challenge to the exercise of jurisdiction, the ICC should then decide whether Bashir still enjoys immunity to prevent the ICC from further proceedings. In fact, Sudan did not waive the Head of State immunity, and it is inappropriate to conclude that the SC referral indicates that Bashir’s immunity was waived.

Secondly, it appears that Article 27(2) reflects a rule of non-immunity of Head of State before the ICC, but it is unclear whether this will apply to the Darfur situation. The issue of jurisdiction is distinct from that of applicable law. Article 27(2) is only applicable for parties to the Rome Statute, while Sudan is a non-party State. In addition, the SC Resolution 1593 did not explicitly or implicitly express that Article 27(2) or the Rome Statute will automatically apply.

Furthermore, conceding that Article 27 (2) may apply, there is no hint showing that State parties agreed to refuse the immunity of Bashir. There are various understandings of Article 27 (2), which lead to uncertain answers on the issue. It might be interpreted that State parties refuse to grant immunity to the Head of other State parties. Alternatively, a State party may waive the immunity of its own Head by ratifying the Rome Statute. It is impossible to conclude that Article 27(2) implies that State parties agreed to refuse the immunity of the Head of non-party States, such as Bashir. The SC Resolution still did not indicate that there is an implied agreement among voting States to refuse his immunity.

Last, a claim that a customary international rule of the Head of State non-immunity is emerging is unconvincing. In the Arrest Warrant case, the ICJ concluded that there is a customary international rule of Head of State immunity, regardless of the nature of the crime. The ICC has tried to establish an exception to the customary international law in the Malawi decision. Its reasoning has some merits but is not entirely satisfactory. Additionally, there is a treaty obligation to respect the Head of State immunity. On 3 July 2009, the African Union (AU) Assembly passed a Decision expressing that its member States should refuse to cooperate in the arrest and surrender of Bashir to the ICC based on immunity under Article 98 of the Rome Statute. It seems that Article 98 allows the customary obligation and other treaty obligation to prevail over the request for arrest and surrender to the ICC. South Africa is a member State of the AU. Therefore, if there are contradictory obligations regarding immunity, the obligation of South Africa to respect for immunity will prevail over the obligation to arrest and surrender.

To sum up, these State parties did not fail to comply with the obligation to satisfy the request to arrest and surrender of Bashir.