6 July 2017

South Africa: ICC Rules - South Africa Guilty of Non-Arrest Bashir

The Hague — Judges at the International Criminal Court (ICC) ruled today that they will not refer South Africa's non-compliance to a higher authority, after deciding that the nation failed in its obligations to the war crimes court by not arresting wanted president Omar Al Bashir in 2015.

President Al Bashir, wanted by the ICC for committing war crimes and genocide in Darfur, set foot in South Africa during a summit of African leaders on 13 June 2015. The South African government argued that the state leader enjoyed diplomatic immunity, although its membership to the ICC obliges the country to arrest the court's wanted suspects.

Human rights lawyers approached the High Court in Pretoria the next day to ensure that South Africa would fulfil its duty. The court issued exactly such an order on 15 June, but it was ignored by the government of South Africa.

President Al Bashir was allowed to flee. If the government - a member of the ICC - had upheld its duty to arrest suspects, the Sudanese president would have been arrested and potentially handed over to the court in The Hague. There he would face charges for committing crimes against humanity, genocide and war crimes in Darfur.

The ICC does not have its own police or enforcement body.

Two years and three weeks later, the Pre-Trial Chamber of the ICC found that South Africa had failed in its duty to arrest the wanted Sudanese President while he was in its territory. But the panel said they would not refer the matter to a higher authority at the United Nations - it is "not warranted".

"South Africa was the first State Party to seek from the Court a final legal determination on the extent of its obligations to execute a request for arrest," reads the statement by the ICC. "In addition [... ] South Africa's domestic courts have already found South Africa to be in breach of its obligations under its domestic legal framework and that any remaining issue concerning South Africa's obligations under the Statute was resolved by the Chamber in the decision."

The Southern Africa Litigation Centre, the organisation of lawyers which first approached the Pretoria court on 14 June 2015, welcomes the ruling, including the decision not to refer the case to the Assembly of States Parties, or members, of the court.

Executive director Kaajal Ramjathan-Keogh told VOA News: "A referral to the ASP [Assembly of State Parties, ed.] or the U.N. Security Council would practically have not been of much effect in any case If we look at the referrals of other similar countries in similar situations: Uganda, Djibouti Kenya, the DRC."

Judge Cuno Tarfusser issues the ruling of the judges at the ICC on 6 July 2017 (SABC)

The ruling comes as South African officials dig in their heels in their decision to withdraw from the court after the controversial incident. The South African government stated it intent to withdraw from the Rome Statute. However, in March this year, a ruling by the High Court in Pretoria in February stipulated that a withdrawal would be unconstitutional and invalid, which made the government temporarily back down on that idea.

Omar Al Bashir, who has been president of the Republic of Sudan since 1993, was issued with his first warrant of arrest by the war crimes court in March 2009, and another in July 2010.

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