SA flouted its duty to the ICC

07 July 2017 - 06:28 By AFP
STILL KICKING: Sudanese President Omar al-Bashir earlier this yearPicture: ASHRAF SHAZLY/AFP
STILL KICKING: Sudanese President Omar al-Bashir earlier this yearPicture: ASHRAF SHAZLY/AFP

War crimes judges ruled yesterday that South Africa flouted its duties to the International Criminal Court in 2015 by failing to arrest visiting Sudanese President Omar al-Bashir, wanted on genocide charges.

The widely expected judgment slapped South Africa for failing in its obligations and hindering the work of the world's only permanent war crimes tribunal, of which it is a founding member.

"The chamber concludes that, by not arresting Omar al-Bashir while he was on its territory.South Africa failed to comply with the court's request for the arrest and surrender" of Bashir, said the presiding judge, Cuno Tarfusser.

This was "contrary" to the provisions of the court's guiding Rome Statute and prevented it from seeking to prosecute Bashir on 10 charges of war crimes, including three of genocide in Sudan's western Darfur region.

But the judges stopped short of referring the matter to the UN Security Council for further action, with Tarfusser saying "a referral would be of no consequence".

Despite two international arrest warrants issued in 2009 and 2010, Bashir remains at large and in office as conflict continues to rage in Darfur.

In June 2015 he attended an African Union summit in Johannesburg and, despite earlier consultations between ICC and South African officials, he flew out of the country unhindered.

The UN Security Council asked the ICC in 2005 to probe the crimes in Darfur, where at least 300000 people have been killed and 2.5million displaced since ethnic minorities took up arms against Bashir's Arab-dominated government in 2003, the UN said.

South Africa's lawyers argued at an April hearing at the ICC there "was no duty under international law on South Africa to arrest" Bashir, arguing there was "nothing at all" in the UN resolution to waive his diplomatic immunity. But ICC prosecutor Julian Nicholls shot back that South Africa "had the ability to arrest and surrender him and it chose not to do so".

He said the only reason Pretoria did not arrest him was that the country "disagreed with.the law as set it did not comply".

A South African court in February blocked the government's bid to withdraw from the ICC.

Judges agreed in yesterday's ruling that international obligations could not "simply be put aside" if a country disagreed with them that Bashir did not enjoy immunity.

Bashir, who has been president of Sudan since 1993, has denied all the charges and continues to travel, with Khartoum announcing on Monday that he would visit Moscow in August. Russia said late last year that it was withdrawing its signature from the Rome Statute.

Based in The Hague, the ICC does not have its own enforcement body and relies on other countries to arrest or surrender suspects.

And although 124 nations have signed the Rome Statute, which underpins the court, it has struggled to shore up its legitimacy at times, being faced last year with
unprecedented withdrawals and being tainted by accusations of bias for focusing too heavily on war crimes in Africa. - AFP