Ensuring that State Parties to the Roman Statute Co-operate with ICC Requests to Arrest and Surrender Suspects: Reflecting on the Role of the Security Council through the Lens of the Responsibility to Protect (R2P)

• Jurisdiction: South Africa
• Author: Lungu, S.
• Date: 19 August 2019
• Pages: 119-145
• Published date: 19 August 2019

Ensuring that State Parties to the

the Roman Statute Co-operate

with ICC Requests to Arrest and

Surrender Suspects: Reecting

on the Role of the Security

Council through the Lens of the

Responsibility to Protext (R2P)

Suzgo Lungu* and Ntombizozuko Dyani-Mhango**

Abstract

More than a decade has pass ed since the International Cr iminal Cou rt

(ICC) issued two war rants for the arrest of t he former president of Sudan,

Al Bashir, who is accused of c ommitting intern ational crimes in Da rfur.

The arrest war rants were accompanied by ICC re quests to states parties

to the Rome Statute of the ICC to arrest and su rrender Al Bash ir to the

ICC. However, a few states parties welcomed Al B ashir to their ter ritories

and failed to arre st and surrender hi m to the ICC, thus breachi ng their

international obligations. T he ICC has referred some of the t ransgressing

states parties to the United Nations Se curity Council (U NSC), but the UNSC

has failed to act agai nst them. This ar ticle exami nes the role of the UNSC

in enforcing state cooper ation with ICC requests to ar rest and surrender

suspects to the ICC. We arg ue that states that fail to coop erate with ICC

requests to arrest and su rrender those who are su spected of internationa l

crimes threaten i nternational peace and sec urity. Therefore, the UN SC

must invoke its Chapter VII powers in the U N Charter, and must be guided

by the Responsibility to Protec t (R2P) in order to enforce ICC requests when

a transgressing st ate is referred to it.

Keywor ds: International Crimina l Court, Enforcement of State

Cooperation, ICC Requests to Arrest and Surre nder, Security Counci l,

UN Charter Chapter VI I powers, R2P

* PhD candidate, School of Law, University of the Witwatersrand, Johannesburg.

Parts of this article form the basis of the revised Chapter 4 of my thesis submitted

in partial fulllment of the requirements for the PhD degree in the School of Law,

University of the Witwatersrand, Johannesburg. We are grateful for the critical

comments and suggestions of the peer reviewers. All errors are ours.

** Associate Professor, University of Witwatersrand, Johannesburg. This work is

based on research supported in part by the National Research Foundation of

South Africa Incentive Funding for Rated Researchers (Grant No 119211) for this

author. Usual disclaimers apply.

119

(2018) African Yearbook on International Humanitarian Law 119

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120 AFRICA N YEARBOOK ON INT ERNATIONAL HUMA NITARIAN LAW

1 INT RODUCTION

During the repor ting period, Mr Al B ashir continued to travel

internationally, including to Djibouti and Uganda in July. Both of

these States Parties were previously referre d to the Assembly of States

Parties, and this Cou ncil, for their failure to arrest and surrender Mr A l

Bashir to the Court whi le on previous trips to their territory i n 2016.

No action was taken by the Council i n relation to those, or indeed

any other referrals. It is therefore not surpr ising that States Parties to

the Rome Statute, such as Djibouti and Uganda, continue to host ICC

suspects on their terr itory, in blatant violation of Court ndings. In

the absence of any meaningfu l consequences for such instances of

non-compliance, we are unlikely to see a change in such reg rettable

patterns. This status quo is ha rdly conducive to advancing the cause of

justice in Darfur.1

This statement reveals how states that are party to the Rome Statute

of the International Crimina l Court (ICC)2 have continually failed to

cooper ate3 with ICC re quests4 to arrest and su rrender former president

of Sudan, Al Bashir, who is accused of perp etrating international crimes

in Darfur more tha n a decade ago.5 This is despite the fact that states

parties have a general obligation to cooperate with ICC requests so that

1 ICC ‘A statement by the ICC Prosecutor Bensouda to the UNSC, ICC, Statement

to the United Nations Security Council on the Situation in Darfur, pursuant to

UNSCR 1593 (2005)’ 14 December 2018, at para 20, available at https://www.

icc-cpi.int/Pages/item.aspx?name=181214-stat-otp-UNSC-1593 (accessed on

10 March 2019). See also ICC ‘Twenty-Eighth Report of the Prosecutor of the

International Criminal Court to the United Nations Security Council pursuant

to UNSCR 1593 (2005)’ para 32 (noting ‘that a majority of the participants in

the Arria-formula meeting expressed concerns at the lack of follow-up by the

Council in instances where a State Party was referred to it pursuant to a nding of

noncompliance by the [ICC], and advocated for concrete measures to be adopted

by the Council in that regard’).

2 Rome Statute of the International Criminal Court (Rome, 17 July 1998) UN Doc

A/CONF.183/9 of 17 July 1998, entered into force 1 July 2002 (hereafter ‘the

Statute’).

3 See, for example, ICC Decision under article 87(7) of the Rome Statute on the non-

compliance by Jordan with the request by the Court for the arrest and surrender or

Omar Al-Bashir, ICC-02/05-01/09-309, Judgment of 11 December 2017 at para

50 (concluding that the Kingdom of Jordan ‘failed to comply with the [ICC]’s

request for the arrest and surrender of Omar Al-Bashir contrary to the Statute,

thereby preventing the [ICC] from exercising its functions and powers under

the Statute in connection with the criminal proceedings instituted against Omar

Al-Bashir’).

4 See art 87(1)(a) of the Statute, which stipulates that ‘[t]he [ICC] shall have the

authority to make requests to States Parties for cooperation’.

5 See ICC The Prosecutor v Omar Hassan Ahmad Al Bashir ICC-02/05-01/09: Warrant

of Arrest for Omar Hassan Ahmad Al Bashir ICC-02/05-01/09-1 (04 March 2009)

and ICC Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir ICC-02/05-

01/09-95 (12 July 2010).

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