Crisis of Diplomatic Etiquette and the 2015 African Union Summit in South Africa: Is the International Criminal Court at Crossroads on Omar-Bashir’s arrest?

Abstract

The role of the International Criminal Court (ICC) became a subject of intense debate during the African Union Summit held in June 2015 and hosted by South Africa. Opinions varied among scholars and experts, as well as commentators on whether the Treaty-based international organisation located in the Hague, Netherlands, had the enforceable rights to subject African leaders to trials arising from accusations of genocide, crime against humanity and war crimes and related issues. Against this background, this paper set out to examine the implications of the unsettling diplomatic imbroglio between South Africa and the ICC on the non-compliance of the country with the Court’s request for the arrest of President Omar Bashir of Sudan on charges of genocide and crimes against humanity. Having examined the legal and diplomatic relationship between the ICC and member states in terms of duties and obligations respectively, this paper submits that Court has both enforceable and moral rights to subject any African leader to trials if and when formal accusations of the crimes as mentioned earlier, are established against them. This position is without prejudice to the issue of immunity enjoyed by African leaders in their respective countries. It is a norm and widely acknowledged though, that membership of any multilateral organisation in the contemporary international system requires the giving up of some sovereign right to effective policy implementation for the benefit of members.