PRETORIA, The International Criminal Court (ICC) has ruled that South Africa failed to comply with its request to arrest and surrender to it Sudanese President Omar al-Bashir, thus preventing the Court from exercising its functions and powers.
This was the judgment handed down by the Court’s pre-trial chamber Thursday in the case which arose after Pretoria failed to arrest President Al-Bashir when he visited Johannesburg in 2015 to attend an African Union Summit of Heads of State and Government. The Court rejected Pretoria’s argument that al-Bashir enjoyed immunity while in the country as a visiting head of State.
However, apart from finding that South Africa had not complied with its obligations under the Rome Statute, the ICC decided not impose punitive measures against Pretoria.
This allows for two courses of action — to refer South Africa to the United Nations Security Council because it was the Council which referred the situation in Sudan’s Darfur region to the ICC in the first place or to refer South Africa to the Assembly of State Parties of the Rome Statute for possible censure.
ICC Presiding Judge Cuno Tarfusser said in delivering the Court’s ruling: “In these circumstances, a referral of South Africa’s non-compliance with the Court’s request for arrest and surrender of Omar Al-Bashir will be of no consequence as a mechanism for the Court to obtain co-operation.”
South Africa argued two distinct legal bases for not arresting Sudan’s president –first that customary international law prevented it from arresting a sitting Head of State and secondly, the host agreement it had entered into with the African Union.
“The Chamber is not persuaded by South Africa’s latter argument and considers that Article 7.1 of the Host Agreement on its terms does not apply to Omar al-Bashir and thus could not have conferred upon him any immunity.”
The Chamber also found that it was unable to identify a rule in customary international law that would exclude immunity for Heads of State when their arrest is sought for international crimes by another State, even when the arrest is sought on behalf of an international court, in this instance, the ICC.
South Africa’s Ambassador to the Netherlands, Bruce Koloane, who was present at the ICC, which is based at The Hague, said: “In as far as the ruling of today (Thursday) is concerned, we have a responsibility to get our legal experts to study and analyse everything that’s part of the ruling.
“And then on the basis of that, they will advise our political principals, who will then make a decision about how they want to proceed, whether they want to appeal or not appeal, et cetera…”
At the United Nations, the UN Secretary General’s spokesperson, Stephane Dujarric, said: “We’re reviewing the decision, it’s not for us to comment on judicial decisions made by the ICC. However, from our standpoint, and we continue to re-affirm the importance of the Court, the ICC, as the centrepiece of a global system of international criminal justice.”
Even if the justices had referred South Africa to the Security Council it is unclear what action, if any, might have been taken given the composition of the Council. China, Russia and the United States all permanent members of the UNSC — are themselves not party to the Rome Statute and because these powerful countries do not recognize the ICC’s jurisdiction, South Africa is likely to escape censure anyway.
Source: NAM NEWS NETWORK