Sudan: SA Got Tangled in Diplomatic Knot

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The Minister of Justice and Correctional Services explained to the Committee last week exactly why South Africa had let loose Sudanese President Omar al-Bashir, in defiance of a formal request by the International Criminal Court (ICC).

SA faced a dilemma. It was hosting a summit of the African Union in Johannesburg to which all constituent members and the heads of state were invited. In terms of the Diplomatic Immunities and Privileges Act, the Department of International Relations (DIRCO) had issued a proclamation which had extended immunity to the participants of the conference.

Besides, South Africa as host was obliged to make everyone feel welcome, and promote stability and peace on the continent.

But as a member of the ICC and signatory to the Rome Statute, SA was also obliged to execute a warrant of arrest when President al-Bashir arrived. The Minister explained: "Conflicting decisions created confusion as to whether the Rome Statute did away with diplomatic immunity. That was a fundamental question that needed to be resolved."

Despite three attempts to meet with The Hague's representatives and an early morning dash that day to Pretoria for advice, SA didn't move as fast as our courts did. Al Bashir moved even faster. He was gone before the court ruled.

The ICC had asked SA to be the first country on earth to arrest a sitting head of state that was in the country on diplomatic business, having received diplomatic immunity before he arrived in the country. Why should SA do what the Americans and British would not do? That was the politics of it.

In other words, his own words, the Minister explained SA "had tied its own hands behind its back and the court could not untie SA from the obligation". Careful you don't tie the rope around your neck next time.

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