To arrest or not to arrest the incumbent head of state: the Bashir case and the interplay between law and politics

In 2009, Sudanese President Omar Hassan Ahmad Al Bashir (‘President
Bashir’) was indicted by the International Criminal Court (‘ICC’) on
charges of war crimes and crimes against humanity over the confl ict in
the western region of Darfur, Sudan. The following year the ICC charged
President Bashir with genocide over events in Darfur, where allegedly
more than 300 000 people have died and more than two million people
have been displaced since 2003. Before the ICC can prosecute President
Bashir, it has to obtain custody over him. As a judicial institution without
power to arrest those it indicts, the Court relies on national authorities.
States to which President Bashir has travelled since the warrants for
his arrest have been issued have been reluctant to arrest and surrender
President Bashir to the ICC justifying their refusal by the head of state
immunity argument. By focusing on the specifi c response of the South
African government to the ICC’s arrest warrant against President Bashir
in June 2015, this article considers the question of whether states must
cooperate with the ICC in instances of an arrest warrant against a sitting
head of state of a non-state party and observes the broader implications
of state responses similar to the South African case.