A thesis submitted in fulfilment to the degree of Doctor of Philosophy to the Faculty of Commerce, Law and Management,School of Law, University of the Witwatersrand / It has been almost 10 years since the International Criminal Court (‘ICC’) issued two warrants for the arrest of former President of Sudan, Omar Hassan Ahmad Al Bashir (‘Al Bashir’) on charges of crimes against humanity, war crimes and genocide. Despite the warrants, Al Bashir and some of his alleged co-perpetrators remain free as the ICC does not try suspects in absentia. Al Bashir has travelled to several countries, both contracting and non-contracting parties to the Rome Statute of the ICC (‘Statute’), in defiance of the warrants for his arrest without being arrested. Failure by states to cooperate with ICC requests to arrest and surrender him for prosecution has been the biggest challenge of the international criminal justice system over the years.Arresting and surrendering a person in the position of Al Bashir raises a number of legal issues relevant to this thesis. First, Sudan is a non-contracting state to the Statute and generally, it
is not obliged to cooperate with the ICC. This raises the second question as to whether Al Bashir is entitled to immunities when it comes to contracting states to the Statute that are requested to arrest and surrender him to the ICC. Third, several contracting parties to the Statute have failed to arrest and surrender him to the ICC thereby breaching their obligations under the Statute. These states claim that there is a conflict between Articles 27(2), on non-immunity of a head of state, and 98(1), which requires the requested non-contracting state party to waive its immunity prior to arresting and surrendering Al Bashir to the ICC, in case they breach their customary international law obligations owed to Sudan. Fourth, they claim that the United Nations Security Council (‘UNSC’) Resolution 1593 (2005) which referred the situation of Sudan to the ICC does not impose any obligation on states other than Sudan to cooperate with the ICC on this matter. Fifth,
several states have still failed to cooperate with ICC requests to arrest and surrender Al Bashir despite the ICC Pre-Trial Chamber (PTC) holding that there is no conflict between their statute and international law obligations towards the Sudan. The PTC referred these non-cooperating states to the ICC Assembly of States Parties (‘ASP’) and United Nations Security Council (‘UNSC’) in terms of article 87(7) of the Statute. However, they have so far faced no consequences. What is unclear from Article 87(7) is the nature and scope of remedies that are available to the ASP and the UNSC when a non-cooperating state has been referred by the ICC for enforcement. It is also unclear as to what procedure the ASP and the UNSC would follow in enforcing cooperation. It is observed from the provisions of the Statute that the ASP’s powers are unclear, whereas the UNSC is expected to act in terms of its Chapter VII powers under the UN Charter. It is further observed from the decisions of the PTC and the reports of the ICC Prosecutor to the UNSC that both the ASP and the UNSC have not yet taken any action against noncooperating states. As a matter of fact, it is unclear whether the ASP or the UNSC will ever take any action against non-cooperating states for failing to arrest and surrender Al Bashir to the ICC. Using the example of Sudan and Al Bashir, this thesis analyses the enforcement of the ICC’s
requests and decisions by the UNSC and the ASP in relation to states’ failure to cooperate. Since the ICC cannot operate without the cooperation of states, the thesis argues that there is a need for the ASP and UNSC to take strong measures against non-cooperating states. The thesis identifies a critical need for a strong, clear and elaborate follow-up mechanism against non-cooperating states that have been referred to the ASP and UNSC under the Statute in order to contribute to the fight against international crimes and ending impunity. The thesis therefore does two things. Firstly, it examines the nature and scope of the powers of the UNSC and ASP under the Statute in relation to enforcing state cooperation with the ICC requests. This entails exploring how the UNSC and ASP can compel states to fulfill their Statute obligation to cooperate with the ICC’s requests to
arrest and surrender suspects. Secondly, the thesis develops recommendations to the UNSC and ASP for the enforcement of the ICC’s requests and decisions to arrest and surrender suspects. In order to develop proposals for an effective enforcement of cooperation with ICC requests to arrest and surrender Al Bashir and persons in similar position under the Statute, the thesis draws lessons from the two regional human rights tribunals of the Inter-American Court of Human Rights (IActHR) and the European Court on Human Rights (ECtHR). Although, the African Court on Human and People’s Rights (AfCHPR) has the capacity to monitor state cooperation with its decisions through the existence of a legal framework under the Charter, it has not yet developed this area of the law. The AfCHPR has neither clear practice nor policy on enforcement of state cooperation. The AfCHPR does not also have follow-up mechanisms on enforcement of state cooperation with its decisions. It is for this reason that a discussion of this system in this thesis is merely illustrative of the legal framework on state cooperation including the areas that may require improvement if the system is to achieve maximum state cooperation. / NG (2020)
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:wits/oai:wiredspace.wits.ac.za:10539/29621 |
| Date | January 2019 |
| Creators | Lungu, Suzgo |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis |
| Format | Online resource (xiv, 226 leaves), application/pdf |
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