ICC: South Africa failed its duties by not arresting Sudan's Bashir

Sudanese President Omar al-Bashir. FILE PHOTO | ASHRAF SHAZLY | AFP 

In Summary

• ICC rules South Africa failed its ICC duties by not arresting Sudan's Bashir
• In June 2015, Bashir attended an African Union summit in Johannesburg, and despite earlier consultations between ICC and South African officials then flew out of the country again without restraint.
• Judges unanimously agreed on Thursday's ruling that international obligations cannot "simply be put aside" if a country disagrees with them, and ruled that in the case Bashir did not enjoy diplomatic immunity.

By AFP
More by this Author

War crimes judges at the International Criminal Court Thursday ruled that South Africa failed in its duties to the ICC in 2015 when it refused to arrest Sudan's President Omar al-Bashir, who is wanted on genocide charges.

Presiding judge Cuno Tarfusser said "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 his arrest and surrender.

The much awaited ruling 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.

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.

Further action

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 Darfur.

In June 2015, Bashir attended an African Union summit in Johannesburg, and despite earlier consultations between ICC and South African officials then flew out of the country again without restraint.

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

In an April hearing at the ICC, Pretoria's lawyers had argued 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 rebutted that South Africa "had the ability to arrest and surrender him and it chose not to do so."

Ultimately, the only reason Pretoria did not arrest Mr Bashir was that South Africa "disagreed with ... the law as set out... so it did not comply," he said.

Judges unanimously agreed on Thursday's ruling that international obligations cannot "simply be put aside" if a country disagrees with them, and ruled that in the case Bashir did not enjoy diplomatic immunity.