Abstract:
Membership and withdrawal from the ICC are subject of applicant state’s will. Member’s state’s obligation to cooperate with the ICC and to ignore its political relations with other states is one of reasons to withdraw from the ICC. However, withdrawal from the ICC membership is subject to formalities that its observance may detract from applicant’s state’s objectives. The South African state is an example of this situation, which has taken steps which has no precedent at the ICC level. Examining the theoretical dimensions of these measures are subject of this article. The research question is what are the challenges for the South Africa’s failure to cooperate with the ICC and its obstacles to withdrawing from the ICC Statute membership? The findings of this study show that the South Africa’s experience in citing mechanisms set forth in the Statute for non-cooperation and withdrawal from its membership without regard to their functioning and compliance with their requirements are self-centered and doomed to failure and void. This is an experience that exists under the same conditions in other member states of the ICC, and in order to avoid its consequences, the requirements of the ICC’s Statute must be observed.
Machine summary:
Challenges of non-cooperation with the International Criminal Court and the obstacles facing a state's withdrawal from membership in the Statute (A Case Study of the Republic of South Africa) Javad Salehi Associate Professor, Department of Law, Payame Noor University, Tehran, Iran.
The Pre-Trial Chamber announced that the consultation of the South African government with the International Criminal Court, according to the provisions of Article 97 of the Statute, does not prevent the execution of the arrest and extradition warrant of Omar al-Bashir (ICC, 2015: 8).
The South African government imagined that by withdrawing from membership in the Statute, the issue of the necessity of cooperation with the International Criminal Court and the challenges of arresting and transferring Omar al-Bashir would end.
Therefore, the repeal of the domestic resolution remains necessary, even in the situation of the South African government's withdrawal from membership in the Statute; otherwise, that state is still obligated under domestic law to cooperate with the International Criminal Court in the arrest and surrender of Omar al-Bashir, even if it does not face such an obligation in the international arena.
The judiciary, based on domestic laws, issues the arrest warrant for Omar al-Bashir and requests its implementation from the member state of the International Criminal Court, but the South African government, in its view, considers it nullified by the claim of withdrawal from membership in the Statute.
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