The report comes after a diplomatic brawl over an attempt to arrest Omar al-Bashir during an African Union summit in South Africa (more in analysis no. 15).

The failed attempt to arrest Omar al-Bashir

In June 2015 the AU held a summit in South Africa. Omar al-Bashir, the president of Sudan, was representing his state at the summit. Despite two arrest warrants by the ICC on accounts of war crimes, crimes against humanity and genocide, al-Bashir enjoys the support of many African states, including the AU which has repeatedly criticized the ICC’s policy with regard to Africa. He travels freely throughout the continent. In light of that history, it is not surprising that the president visited the AU summit.

Still, South Africa is a state party to the ICC-statute. As such, there is no doubt that South Africa is under an obligation to arrest Omar al-Bashir. This has not only been hold by several non-governmental organizations, but by the ICC as well: The ICC had consultations with South African Officials in which the obligation of South Africa to arrest Omar al-Bashir was discussed. (Registry Report on the consultations undertaken under Article 97 of the Rome Statute by the Republic of South Africa and the departure of Omar Al Bashir from South Africa on 15 June 2015, ICC-02/05-01/09-243).

In addition, a domestic court found clear words for the South African government. After the North Gauteng High Court in Pretoria found the government of South Africa under a domestic obligation to arrest Omar al-Bashir, Sudan’s president managed to board a plane and leave the country for Sudan. In the end, it is evident that the South African government’s failure to act constitutes a violation of the Rome Statute (cf. here).

No immunity for Omar al-Bashir

Also, Omar al-Bashir has as a sitting head of state no immunity from criminal prosecution. Customary international law may provide for such a immunity. However, for state parties to the Rome Statute, art. 27 removes this protection. Sudan, a non-member state, is not bound by art. 27 Rome Statute and thus al-Bashir is not stripped of his immunity by this provision. However, being a member state of the UN, Sudan must adhere to chapter VII-resolutions of the UN Security Council. The UN Security Council removed his immunity by Res. 1593 (2005), which referred to the Rome Statute (cf. here)

Troubling is the stance of several members of the Security Council, including permanent members of the Council as well as elected members and state parties to the ICC-statute, who maintain that al-Bashir is immune from the ICC’s prosecution. In this sense, their view is simply incorrect and Omar al-Bashir does not enjoy immunity from the ICC’s jurisdiction.

It comes to no surprise that the Sudanese government failed to arrest Omar al-Bashir and Abdel Raheem Muhammad Hussein, the Sudanese minister of defense. With regard to al-Bashir, the Court already issued a decision, holding that the non-compliance violates international obligations of Sudan. With regard to Hussein, the decision is pending.

In this sense, the report does not report any news.

Banda-Trial postponed indefinitely

The Prosecutor is also not able to report any news in the Banda-case. He is still on the run and a date for the trial has not been set (cf. here).

Continued hibernation in light of ongoing violence

In her last report the Prosecutor announced a halt to all investigations in Darfur. In the present report, she details her strategy a little more: Resources of the OTP are allocated to prioritized cases that are more advanced. With regard to Darfur, not a single case is likely to be tried in the near future. However, the OTP continues to monitor the situation in Darfur, focusing on recent crimes and even interviewing witnesses to safe their testimony.

This is in part due to the ongoing violence in Darfur, as the Prosecutor reports. Until today, the Rapid Support Forces (RSF), a paramilitary unit, are committing crimes in Darfur. The Prosecutor names three individuals allegedly somehow responsible. Among them are two RSF-leaders, Major General Abdual-Aziz and commander Mohamed Hamdan Dagolo, known as “Hemeti”, and the National Intelligence Security Service’s (NISS) General Ali al-Nasih al-Galla. Hemeti has been in the focus of the OTP for quite some time and was mentioned in the Prosecutor’s 19^th report a year ago.

Of course, during the debate after the Prosecutor gave her report to the Security Council, the Sudanese representative denounced these claims. He even went so far as to re-address the legitimacy and legality of SC Res. 1593 (2005).

(No) Mass rape in Tabit?

Suspiciously, any reference to the alleged mass rape in Tabit is missing from the OTP’s report (cf. here and here). The sole representative regularly referring to the incident is the UK representative. When the Security Council extended the mandate of UNAMID with Res. 2228 (2015) on the same day as the Prosecutor delivered her report, the UK representative reiterated her countries worries about the incident (and she was supported by the US representative). The Sudanese representative, quite the reverse, denounced these allegations and labeled the accusations an “information war” by “certain players to scale up pressure on the Sudan.”

Persistently ignoring the ICC

Not surprising, but disturbing is the persistent neglect of the Darfur-situation by the Security Council. Six months after the Prosecutor’s surrender to the unwillingness of the Council, its members seem happy with the situation. Even tough some members call upon the Council to act, no one undertakes credible steps. For the nearly 1.200 victims of the crime in Darfur since the beginning of 2015, the Security Council is still a disappointment.