The EU has just released a press statement supporting the idea that South Africa should arrest Bashir and send him to the ICC. The statement reads as follows:
Committed to preventing crimes against humanity, war crimes and genocide, and to avoiding impunity for the perpetrators of such crimes, the EU confirms its continuing support for the ICC and its work.
Full cooperation with the ICC is a prerequisite for the Court’s effective functioning.
In accordance with established approach of the EU and its Member States, the EU expects South Africa, a founding State Party of the Court, to act in accordance with UN Security Council 1593, in executing the arrest warrant against any ICC indictee present in the country.
This press release shows some of the confusion on the applicable legal framework when it comes to the ICC and Security Council referrals. Indeed, a Security Council referral simply allows the Court to exercise jurisdiction in a given situation and from then on, it is the Rome Statute that kicks in. Therefore, if South Africa were to arrest and surrender Bashir (which I think it doesn’t have to as argued previously), it would be acting “in accordance” with the Rome Statute, not the UN Security Council Resolution. In fact, if you read the UNSC Resolution, it does not create any obligations for any State other than Sudan (whether it could in fact create obligations even for Sudan under the Rome Statute is another debate).
So, irrespective of the political dimensions of this situation, it seems that as usual, there is not much attention to being precise on the law…