On 8 December 2016, Pre-Trial Chamber II of the International Criminal Court (the "ICC" or "Court") issued a decision convening a public hearing on 7 April 2017, for the purposes of a determination, under article 87(7) of the Rome Statute, on the compliance by the Republic of South Africa with the Court's request for arrest and surrender of Mr Omar Al Bashir to the Court.
The Chamber invited the Prosecutor, representatives of South Africa and representatives of the United Nations to attend the hearing, and to make, if they so wish, written submissions in advance of the hearing, by 17 March 2017. Considering that the issue is of general importance, the Chamber also invited any interested State Party to the Rome Statute, if they so wish, to make written submissions on the matter, by 24 February 2017.
Despite the Court's request for arrest and surrender of Omar Al Bashir to the Court, South Africa did not arrest and surrender him while he was on its territory between 13 and 15 June 2015. Subsequently, on 4 September 2015, the Chamber requested the competent authorities of South Africa to submit their "views on the events surrounding Omar Al Bashir's attendance of the African Union summit in Johannesburg". On 15 October 2015, upon a request by South African authorities for an extension of the time limit set by the Chamber, the Chamber granted South Africa "until such time as the currently ongoing relevant judicial proceedings before the courts of South Africa are finalised". Given that the domestic proceedings in South Africa are now concluded, South Africa shall be heard about a possible finding of non-compliance for failure to arrest and surrender Omar Al Bashir to the Court.
During the hearing scheduled on 7 April 2017, submissions will be presented to the Chamber with respect to:
- whether South Africa failed to comply with its obligations under the Statute by not arresting and surrendering Omar Al Bashir to the Court while he was on its territory; and, if so,
- whether circumstances are such that a formal finding of non-compliance by South Africa in this respect and referral of the matter to the Assembly of States Parties to the Rome Statute and/or the Security Council of the United Nations are warranted.
Decision convening a public hearing for the purposes of a determination under article 87(7) of the Statute with respect to the Republic of South Africa
Background: The situation in Darfur, Sudan, was referred to the Court by the United Nations Security Council in its resolution 1593 of 31 March 2005. The Prosecutor opened an investigation in June 2005. On 4 March 2009 and 12 July 2010, respectively, the ICC issued two arrest warrants against Omar Al Bashir for five counts of crimes against humanity (murder, extermination, forcible transfer, torture and rape), two counts of war crimes (intentionally directing attacks against a civilian population as such or against individual civilians not taking part in hostilities, and pillaging), and three counts of genocide allegedly committed against the Fur, Masalit and Zaghawa ethnic groups in Darfur, Sudan, from 2003 to 2008.
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