War crimes judges ruled Thursday 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 judgement slapped Pretoria 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 the Sudanese leader, said 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 then flew out of the country again unhindered.
The UN Security Council asked the ICC in 2005 to probe the crimes in Darfur, where at least 300,000 people have been killed and 2.5 million displaced since ethnic minorities took up arms against Bashir’s Arab-dominated government in 2003, according to UN figures.
NO DIPLOMATIC IMMUNITY
Pretoria’s lawyers had 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.”
In the end, the only reason Pretoria did not arrest him was that South Africa “disagreed with … the law as set out… so it did not comply,” he said.
Judges agreed in Thursday’s ruling that international obligations cannot “simply be put aside” if a country disagrees with them, and ruled that in this case 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 Monday he will visit Moscow for the first time in August. Russia announced late last year it was withdrawing its signature of the Rome Statute.
Based in The Hague, the ICC does not have its own police or enforcement body and relies on other countries to arrest or surrender suspects.
And while 124 nations have signed the Rome Statute which underpins the court, it has struggled to shore up its legitimacy at times, faced last year with unprecedented withdrawals and tainted by accusations of bias for focusing too heavily on war crimes in Africa.